Learning Moments - Scope of Practice of Immigration Consultants and Non-Immigration Services
This article by Andrew Carvajal is part of the Immigration Education Alliance (IMEDA) weekly column titled "Learning Moments" and published online http://campaign.r20.constantcontact.com/render?m=1111379240993&ca=6aef1a33-f6bb-483b-8a74-bc9269c0e558
Hello fellow practitioners. Today's column deals with the scope of an RCIC's practice and providing a client with non-immigration services.
I was recently hired by a client to prepare a restoration application. He worked with a different RCIC in the extension of his status as a worker and this was refused.
The client fired his prior RCIC and is very unhappy about the services that he received. In addition to filing the restoration application with IRCC, my client wants to hire me to challenge the former RCIC's fees in writing and collect the money that should be reimbursed to him.
I feel bad for the client and believe that he has a valid claim for the reimbursement of his fees. However, I am not sure to what extent I should get involved with this and if I am allowed to.
Our reader certainly has a reason to feel uncomfortable with his client's request and an immigration consultant should avoid becoming engaged in a mandate that involves paid collection services. We believe that these services fall outside the scope of the services that can be provided by an RCIC as an immigration practitioner. Providing such services also raises ethical dilemmas including competence and possibly civility (depending on how communications are handled with the former consultant).
Interestingly enough, the 2016 RCIC Code of Professional Ethics (the Code) does not contain an explicit provision that specifically mandates RCIC's to restrict the scope of their practice to immigration services. Such provision was present in the 2012 Code under article 7.2 which stated that an RCIC "shall not undertake or provide advice with respect to a matter that is outside the member's permissible scope of practice".
While this provision is no longer in the Code, we are of the view that the principle still applies and an RCIC should limit their paid services and representation to matters that are within the scope of their immigration practice. Challenging another professional's fees on behalf of a client, by means of a demand letter, commencing litigation or other paid collection services, is outside the scope of what an RCIC does.
The ICCRC's Retainer Regulations can be quite instructive in this regard and support the position that we are advancing. Section 4.4 of these Regulations provides that a Retainer Agreement "shall be completed for all services a Member undertakes for a fee or other consideration under the Immigration and Refugee Protection Act, the Citizenship Act or in the case of Labour Market Impact Assessments or some Provincial Nominee Program applications under the rules which apply to the said procedures".
Services that do not involve immigration and citizenship legislation, LMIAs or PNP applications, do not seem to belong in the retainer of an RCIC. As a result, it would be disingenuous to advise a client that you can help them with collection services by virtue of being their immigration consultant, when the Retainer Regulations view this as being outside the scope of what RCICs are hired to do.
This is not to say that you are prohibited by law or by the Code of Professional Ethics from providing one of your immigration clients with services for which you are separately licensed. For example, if you hold a paralegal license in Ontario, in addition to your ICCRC license, you are allowed to provide small claims litigation services by virtue of your paralegal designation. In that case, you can certainly be retained for litigation services under the parameters of the Law Society of your province, but independent from entering into an immigration consulting retainer with your client. You would be signing a separate agreement for that independent service and your actions as a paralegal will be regulated by a different body. The one caution here is to always make sure that there is no conflict of interest in providing more that one type of service to the same client.
It is also worth pointing out that in the case of Ontario, to name one province, collection agencies must be registered with the Government of Ontario and must follow the rules set out in the Collection and Debt Settlement Services Act. As a result, we would suggest assisting the client with the restoration application and referring him to a different professional, like a lawyer or a paralegal, to seek reimbursement for the negligent services.
Acting for a client in a matter that falls beyond the scope of regular immigration services also brings into question another ethical issue: competence. Article 5.1 of the Code provides that an RCIC shall at all time be competent to perform the services the consultant undertakes to provide and "shall not undertake any task or service that the [RCIC] is not fully competent by knowledge and experience to handle".
This means that aside from the scope of practice issue, an RCIC may not be competent to deal with a collection issue because this is beyond her/his training and what they do on a day-to-day basis. Should your client's previous consultant complain against you to the ICCRC because you became involved in a collection issue, you are going to have to justify to the Council how you became and remain competent to act in a collection mater. This may prove to be very challenging or may well involve admitting to having a history of providing paid collection services that you may not be authorized to do.
We will also like to draw attention to article 4.3.1 of the Code, whichsets out the duty of civility. The article provides that consultants are obliged to be courteous and civil in all professional dealings with a number of parties, including other RCICs. This is not to say that assisting a client communicate with their former consultant would necessarily breach this duty. However, in acting for a client in a collection matter, whereby you are taking an adversarial position towards the other consultant, you are exposing yourself to being accused of breaching this article of the Code.
Finally, it is worth mentioning that the Code and ethical principles discussed above do not preclude you from being allowed to report a breach of the Code if you feel that your client's previous consultant acted incompetently or took advantage of your client. In fact, article 4.1.1 of the Code provides that RCICs have the obligation to report to the Council any conduct by an RCIC or their agents that is inconsistent with the Code. This is obviously subject to not breaching any client confidentiality and obtaining their consent, where necessary.
The Code also advises that in complaining about an RCIC you should first request (wherever possible) an explanation from the other consultant to determine whether there is an obligation to report the conduct or not. Sometimes this makes sense and it is practical, but in cases where a client has been clearly dealing with a fraudster nothing may be gained by contacting them before.
In short, you can certainly encourage a client to bring a complaint to the ICCRC or even bring one yourself if authorized by the client to do so. You can even assist a client in finding the information about how to bring a complaint and provide them with tips as to the complaint process. However, based on what we have discussed in this column, we discourage you from being retained and paid by the client to prepare the complaint on their behalf, as this arguably falls outside the scope of your immigration practice.
Andrew Carvajal is a Toronto lawyer and partner at Desloges Law Group specializing in immigration law, administrative law and Small Claims Court litigation.