Legal Advice

One of the best ways to learn how to prepare for a career is to ask for advice from experts in the field. Here is what I learned this week:

Richard Renner: Kohn, Kohn & Colapinto, LLP

On Monday, whistleblower attorney Richard Renner spoke at a panel discussion hosted by The George Washington University Law School. Other panelists at the event included Wayne Madsen, a Washington, D.C. investigative journalist and former National Security Agency communications analyst, and David MacMichael, a former CIA analyst. Richard brought life to the audience of students and whistleblower advocates by clearly describing the complicated array of current U.S. whistleblower laws. He ended with sage advice for students interested in pursuing the increasingly popular field of whistleblower law.

Richard began his part of the discussion by pointing out that whistleblowers exist in every type of workplace. Lawyers, in fact, are mandatory whistleblowers. As the American Bar Association’s Model Rules of Professional Conduct dictate, a lawyer must swear to speak out if they witness misconduct by a judge or a fellow attorney.

Although "Whistleblowing is part of leading a transparent life," Richard stressed that the United States does not possess a comprehensive whistleblower protection law. Due to the “messy patchwork” of whistleblower acts and statutes that exist today, whistleblower rights vary based on state, job type, and whether an employee works in the public or the private sector. As of now, there is no general law that grants all whistleblowers the right to a jury trial.

Why Whistleblowers Need Good Lawyers:

Richard explained that seven federal environmental laws passed in the 1970s protect whistleblowers. The administrative process used to enforce whistleblower rights in these laws is now also used to protect certain employees in the transportation industry (truck drivers, airline employees, public transportation workers) as well as employees who report corporate fraud.

Six out of these seven laws, however, have a statute of limitations of 30 days. This means that if a whistleblower does not file a written complaint within 30 days of their disclosure, they are out of luck. Naturally, many whistleblowers are unaware of this strict time limit.

Whistleblowers who report health and safety violations and who manage to file a timely complaint with the Occupational, Health and Safety Administration (OSHA), the agency that reviews these types of whistleblower claims, are not guaranteed protection. If OSHA finds that a claim has no merit (which is frequent), these whistleblowers do not have the right to appeal, file a lawsuit, or appear at a hearing. Unlike these health and safety whistleblowers, environmental whistleblowers do have the right to appeal to an Administrative Law Judge. While this process is more fair for whistleblowers, it is still not as as just as jury trials.

On a similar note, Richard told the audience that federal National Security whistleblowers must bring their claims to the U.S. Merit Systems Protection Board. This board rules against whistleblowers 99% of the time. The Federal Court of Appeals, the next level after the Merit Systems Protection Board, also has a bad record of upholding whistleblower rights.

Richard’s Advice on How to Prepare for a Career in Whistleblower Law:

• Take employment discrimination classes in law school
• Join the Unemployment Action Center: http://www.uac-ny.org/
• Get trial practice in employment cases by working with the Department of Labor

Kiley Kane: U.S. Department of Justice, Office of Immigration Litigation

On Wednesday, I took the metro to Judiciary Square to meet with immigration attorney Kiley Kane at the U.S. Department of Justice’s Office of Immigration Litigation. I kept my eyes open for Obama and Biden as I passed through the many levels of security (The offices of the soon-to-be president and vice president are located in the Department of Justice building during the presidential transition period). Unfortunately, there were no political sightings.

Ms. Kane is an appellate-level immigration attorney, which means that she writes briefs and appears on behalf of the Attorney General in oral arguments at the various federal circuit courts of appeals. Ms. Kane does not work directly with immigrants and asylum-seekers. Since petitioners are not called to testify during oral argument, Ms. Kane rarely meets the very people that she argues should be deported.

In one of her most interesting oral arguments, Ms. Kane defended the government against a man from Palestine who sought asylum (Asylum cases are one of the most common types of cases in immigration law). Since the U.S. does not recognize Palestine as a separate state, Ms. Kane was faced with the difficulty of persuading the judge to send the man back to nowhere. The case, an example of the foreign policy implications that often come into play during immigration trials, was sent back to trial court on a technicality.

From my interview with Ms. Kane, I learned that defending immigrants and asylum-seekers against the government is like playing a game of blackjack against the dealer. Considering that U.S. immigration laws favor the government and that the Department of Justice possesses considerable resources, government attorneys typically win 9 out of 10 immigration cases. Since the odds of winning an immigrant’s defense case are slight, fewer quality attorneys represent immigrants and asylum-seekers. This lack of qualified representation adds to the injustice that immigrants face when fighting against strict U.S. immigration laws.

Although it is more difficult to win cases, working as a defense attorney has its advantages. As opposed to government work, defense work offers attorneys variety and an opportunity to personally benefit from direct relationships with clients.

Essential Skills for an Immigration Attorney:

• Attention to Detail. Immigration Law is so detailed that it is second only to tax law in terms of difficulty
• Creativity. Since immigration laws are rigid, a defense attorney needs to be able to think of creative ways to make their client’s circumstances fit within a given law
• People Skills. Essential for working as a defense attorney

Ms. Kane’s Advice on How to Prepare for a Career in Immigration Law:

• Take immigration law and administrative law classes in law school
• Participate in a clinic. Ms Kane learned that criminal law was not a good fit after she worked in a Public Defender’s clinic during law school and realized that she was unable to relate to the clientele
• After law school, start out by working with the government to learn immigration law from a highly structured environment

The Rest of the Week at a Glance:

• Attended a forum hosted by the American Bar Association on how to make courts fair and impartial
• Sat in on a Criminal Procedure class at Catholic University of America Columbus School of Law. Loved it! Law school is not as intimidating as people make it seem
• Went to a two-hour LSAT strategy class
• Saw Quantum of Solace