A client has the right to fire his or her lawyer at any time. But before you fire the lawyer representing you in immigration matters, consider whether it's the appropriate step, and then take measures to protect your own interests and get back any money you are owed.
Immigration lawyers cannot work miracle. Nearly all applicants are frustrated at some point in the immigration-application process, whether due to long waits, government requests to provide documents that have no apparent bearing on the case, the need to write new checks to replace a set that the U.S. government lost, and so on.
Beware of blaming your immigration lawyer for issues and delays that were actually caused by U.S. Citizenship and Immigration Services (USCIS), the State Department, or the U.S. consulates abroad.
Other frustrations for applicants (and their attorneys) are caused by the way the immigration laws are written. For example, the limits on how many visas can be given out each year in certain categories causes delays of several years for some people.
How do you tell what the source of the problem is? First, ask your lawyer to show you the government documents indicating the delay or other problem. You can also consult with another lawyer regarding whether your case has been mishandled.
Before doing so, get a complete copy of your file from your first lawyer. You have a right to this at any time. Submitting a FOIA request to the government can also help you obtain documents within its file.
It may turn out that your lawyer was, after all, the source of the problem. If so, getting a new lawyer may be the best thing you can do for your immigration case.
Your client file is your property, not the immigration attorney’s property.
According to the American Bar Association’s (ABA) Model Rules 1.15 and 1.16(d), when a client/attorney relationship is terminated, it's the lawyer’s responsibility to protect the client’s interests, including by surrendering the client’s file and any property. For instance, you might have left the attorney with an original version of your birth certificate, green card, work permit, or other relevant document.
What about things that the lawyer prepared on your behalf, such as copies of the immigration application and declarations from witnesses? Some states follow the “entire contents approach” meaning the attorney must turn over most or all of the client file contents. Other states follow the “end-product approach” meaning that the attorney can hold on to work product or investigative materials and the like.
There are always some documents that the attorney is not required to turn over to the client. Those include internal papers or notes that the lawyer created while working on your case.
As for the costs relating to copying and sending the client file, most states require the attorney to pay these, unless you've agreed in advance to bear them. Consult the attorney/client agreement you signed. If it doesn't say who pays for copying and sending your client file, then the attorney should be the one to do so.
If you have trouble getting your attorney to give you the copies:
If you have already hired a new immigration lawyer, he or she may be able to help you obtain your client file, by making the request on your behalf.
Firing your lawyer will not affect the progress of your applications with USCIS, the consulate, or any other government agency handling your case. However, you should send a letter to the last USCIS or consular office you heard from, directing it to send all future correspondence straight to you or to your new lawyer.
Any new lawyer you hire will, of course, take care of this, and file a new Form G-28 indicating his or her representation. But if you delay in finding a new lawyer, or decide to go it alone, you'll definitely need to send these letters as soon as possible.
You will (unless you're prepared to sue over inadequate representation) have to pay the fired lawyer for any work already done on your case. Look at the contract with your lawyer (if you signed one) to see how refunds are to be made.
If you originally paid a flat fee, as is common in immigration cases, the lawyer is permitted to keep enough of the fee to cover work already done. How to calculate this can be a challenge, particularly if the contract failed to cover this point. The recommended method to calculate the refund amount is by percentage of the work done. For instance, a lawyer who has done half the work could keep half the fee.
Another possible method is to base the amount you still owe on hours spent, charged at the lawyer’s standard hourly rate, capped by the total flat fee amount. Ask for a complete list of the hours worked and how those hours were spent. Don’t be surprised if you don't get any money back, however. Flat fees are often artificially low, and a lawyer can easily show that your fee was used up on the work that was done.