Legal Ethics Corner: Undocumented Status Does Not Mean You Can’t Practice Law

Albert J. Boro, Jr., Boro Law Firm

In a matter of first impression, the California Supreme Court recently ruled that the fact an undocumented immigrant is in the United States illegally “does not itself involve moral turpitude or demonstrate moral unfitness so as to justify exclusion from the State Bar.” In re Sergio C. Garcia, 58 Cal. 4th 440, 460 (2014).

Sergio Garcia, who was born in Mexico and brought by his parents to California as an infant and again at age 17, obtained his high school diploma and college and law degrees in California and passed the California bar examination.

The court first found no federal law bar to admission. Although a 1996 statute provides that undocumented immigrants are “not eligible for any State or local public benefit,” including “any . . . professional license . . . provided by an agency of a State or local government or by appropriated funds of a State or local government,” it permits States to pass laws after its enactment date “affirmatively provid[ing] for such eligibility.” 8 U.S.C. § 1621. Shortly after oral argument, the California Legislature passed a law providing that the court may admit to the bar an undocumented immigrant who has fulfilled the requirements for admission, and the court held that this satisfied the federal law. Garcia, 58 Cal. 4th at 458 (discussing Cal. Bus. & Prof. Code § 6064(b)).

The court further held that neither Garcia’s undocumented immigrant status nor his background precluded admission under California law. The court reiterated its prior holding that “‘every intentional violation of the law is not, ipso facto, grounds for excluding an individual from membership in the legal profession.’” Id. at 460 (quoting Hallinan v. Committee of Bar Examiners, 65 Cal. 2d 447, 459 (1966) (convictions for acts of civil disobedience during civil rights movement did not bar admission)). The court reasoned that “an undocumented immigrant’s presence in this country is unlawful” and can result in civil sanctions, but it is not a criminal offense and “does not itself involve moral turpitude or demonstrate moral unfitness so as to justify exclusion from the State Bar.” Id. The court held that, considering Garcia’s “entire life history and conduct,” he possessed the good moral character for admission. Id. at 466.

“Good moral character” is defined in the Rules of the State Bar as including “qualities of honesty, fairness, candor, trustworthiness, observance of fiduciary responsibility, respect for and obedience to the law, and respect for the rights of others and the judicial process.” Rule 4.40(B). “The fundamental question is whether the applicant is fit to practice law, taking into account whether the applicant has engaged in conduct that reflects moral turpitude or has committed misconduct that bears particularly upon the applicant’s fitness to practice law.” Garcia, 58 Cal. 4th at 465. The meaning of moral turpitude “‘must depend upon, and thus relate to, the occupation involved,’” id. at 465 n.20 (citation omitted), and “‘depends upon the state of public morals, and may vary according to the community or the times.’” Hallinan, 65 Cal. 2d at 462 n.12 (citation omitted). “The purposes of investigation by the bar into an applicant’s moral character should be limited to assurance that, if admitted, he will not obstruct the administration of justice or otherwise act unscrupulously in his capacity as an officer of the court.” Hallinan, 65 Cal. 2d at 462.

In Garcia, the court affirms that undocumented status in violation of federal immigration laws “is not itself a sufficient or persuasive basis for denying undocumented immigrants, as a class, admission to the State Bar.” Garcia, 58 Cal. 4th at 461.

About the author:

al-boroAl Boro specializes in antitrust, business litigation, clean energy and technology, and criminal defense. He is a member of BASF’s Legal Ethics Committee.