Last night, Ted Koppell on Nightline focused on “the reasons so many are willing to hire illegal employees.”
One guest kept “explaining” that the law is not enforced because it is “a weak law.” I kept thinking: It’s not enforced because too many government lawyers have illegal domestic workers or have friends who do.
This morning, the Baltimore Sun continues that theme (“Parents often turn a blind eye, hiring nannies illegally in U.S,” by Ellen Gamerman, Dec. 15, 2004; free reg. req’d), saying:
The issue of illegal nannies only seems to come up around Senate confirmation time. But in fact, illegal nannies are commonplace in cities where affluent two-career couples are raising children. Around Washington, people are especially aware of the political risks of employing an undocumented domestic worker, but that often doesn’t stop them from hiring them.
“I was just at a party, and we were talking about the Kerik thing and two of our friends immediately volunteered, ‘We’re never going to go for a Cabinet position,'” says Jonathan Turley, a George Washington University law professor, referring to the new D.C. code language used by those employing illegal domestic help. “You have very conservative, law-and-order parents who do not hesitate to violate federal law.”
… ” The blurring of the law can present opportunity for illegal workers but also expose them to poor pay, physical mistreatment and few protections. Still, while hiring an undocumented nanny is illegal, not everyone considers it a real crime.”
[see Dec. 16, 2004, update below] Despite the Washington Post’s “Correction” yesterday, stating that Lani Guinier “had no such [domestic worker] problem,” the Sun notes that Law Professor Guinier “was Clinton’s pick to direct the Justice Department’s civil rights division, and though Clinton cited her legal writings on race for ditching her nomination, she too failed to pay taxes on a domestic worker.” (See our prior post.)
- update (Dec. 15, 3 PM) Newsday.com has issued a Correction, based on a release from a Harvard Law School spokesman concerning Prof. Guinier. In part, the Correction says “A spokesman for her at Harvard Law School said there was no such problem, and the White House never indicated that there was.” A similar NYT Correction is available here.
- update (Dec. 16, 2004): The Philadephia Inquirer issued this erratum on Guinier today: “In some editions of Sunday’s Inquirer, the Associated Press erroneously included Lani Guinier on a list of high-level White House nominees who had run into problems involving hired help. Guinier’s problems stemmed
from her writings on racial issues.”
- update (Dec. 16, 2004, 10 AM): Commentor “Barb” has provided us with the text of a letter from Prof. Lani Guinier to the Baltimore Sun requesting a Correction, although that Letter was not online at the Sun‘s website as of 10 AM, the Baltimore Sun article (free reg. req’d) described above has been edited to remove Lani Guinier’s name from the list of nominees with domestic worker problems. The text of Prof. Guinier letter can also be found at our prior post.
- A few days ago, your Editor opined that intentionally hiring an illegal domestic worker and/or failing to pay Social Security taxes for the employee should be grounds for disbarment — as misconduct under Model Rule 8.4. What do you think?
cold winter sky–
where will this wandering beggar
grow old?
………….. ISSA, translated by David G. Lanoue
Personally, I don’t think lawyers or anyone else should be violating federal law. (How’s that for going out on a limb?) Where I come out on your specific question, I’m not sure. But here’s a question for you: Why do you suggest disbarment rather than suspension? You don’t think nanny-scofflaws can learn from their mistakes and be reformed?
Comment by Evan — December 15, 2004 @ 7:59 am
Personally, I don’t think lawyers or anyone else should be violating federal law. (How’s that for going out on a limb?) Where I come out on your specific question, I’m not sure. But here’s a question for you: Why do you suggest disbarment rather than suspension? You don’t think nanny-scofflaws can learn from their mistakes and be reformed?
Comment by Evan — December 15, 2004 @ 7:59 am
Thanks for such a quick reply, Evan. I expected (but hadn’t formulated an answer for) your question. First, an aside: I really dislike the word “mistake” when used for an intentional, ongoing flouting of the law or ethical rules. I’m not euphemisEsq.
One reason I said “disbar” was to get a reaction (that worked) — to see how significant this offense appears to others. Another reason is knowing how wishy-washy most discipline is and not wanting to suggest that a private reprimand is sufficient, nor a brief suspension.
Some factors that might be sufficient to impose disbarment for intentional violating of the immigration and Social Security laws: (1) The worker is paid a less than market rates, or is forced to work excessive hours or under other inappropriate conditions. (2) The lawyer falsifies documents or gets another household member (or attorney, accountant or tax specialist to do so). (3) There has been a pattern of this conduct. (4) the lawyer has helped others commit this crime.
I admit that I’m especially interested in seeing that lawyers obey laws — we are role models and we take an oath to do so. The conduct in question is surely a crime that “reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”
Comment by David Giacalone — December 15, 2004 @ 8:44 am
Thanks for such a quick reply, Evan. I expected (but hadn’t formulated an answer for) your question. First, an aside: I really dislike the word “mistake” when used for an intentional, ongoing flouting of the law or ethical rules. I’m not euphemisEsq.
One reason I said “disbar” was to get a reaction (that worked) — to see how significant this offense appears to others. Another reason is knowing how wishy-washy most discipline is and not wanting to suggest that a private reprimand is sufficient, nor a brief suspension.
Some factors that might be sufficient to impose disbarment for intentional violating of the immigration and Social Security laws: (1) The worker is paid a less than market rates, or is forced to work excessive hours or under other inappropriate conditions. (2) The lawyer falsifies documents or gets another household member (or attorney, accountant or tax specialist to do so). (3) There has been a pattern of this conduct. (4) the lawyer has helped others commit this crime.
I admit that I’m especially interested in seeing that lawyers obey laws — we are role models and we take an oath to do so. The conduct in question is surely a crime that “reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”
Comment by David Giacalone — December 15, 2004 @ 8:44 am
I do agree that lawyers should not violate the law. But I don’t think disbarment is appropriate for a violation that relates to something that does not involve either a client or the practice of law. Perhaps some kind of sanction or fine (maybe pay some $$s to an immigration legal aid group would be a more appropriate remedy) And I do think it’s appropriate to penalize attorneys like Zoe Baird or Kimba Wood for failure to abide by laws by making them ineligible for cabinet appointments.
Having said that, I should add, that as an aside, the nanny tax issue is a very difficult one. For one year of my part time practice, I did have a part time nanny who watched my daughter 10-15 hours a week while I worked at home. I made very clear that I intended to pay all applicable taxes, etc…but most of the people who I interviewed preferred to be paid under the table. I realize that compliance with a statute can’t be waived by consent of the person it’s supposed to protect, but in that situation, I could certainly see an attorney thinking that it would be more helpful to the nanny to bypass the tax than not. Of course, on top of all of this, I have my own views of lawyers who hire nannies to enable them to work 60 hour weeks to the detriment of their children. To me, that’s a greater crime than failing to pay the nanny tax and one that’s far more difficult to address.
Comment by Carolyn Elefant — December 15, 2004 @ 5:40 pm
I do agree that lawyers should not violate the law. But I don’t think disbarment is appropriate for a violation that relates to something that does not involve either a client or the practice of law. Perhaps some kind of sanction or fine (maybe pay some $$s to an immigration legal aid group would be a more appropriate remedy) And I do think it’s appropriate to penalize attorneys like Zoe Baird or Kimba Wood for failure to abide by laws by making them ineligible for cabinet appointments.
Having said that, I should add, that as an aside, the nanny tax issue is a very difficult one. For one year of my part time practice, I did have a part time nanny who watched my daughter 10-15 hours a week while I worked at home. I made very clear that I intended to pay all applicable taxes, etc…but most of the people who I interviewed preferred to be paid under the table. I realize that compliance with a statute can’t be waived by consent of the person it’s supposed to protect, but in that situation, I could certainly see an attorney thinking that it would be more helpful to the nanny to bypass the tax than not. Of course, on top of all of this, I have my own views of lawyers who hire nannies to enable them to work 60 hour weeks to the detriment of their children. To me, that’s a greater crime than failing to pay the nanny tax and one that’s far more difficult to address.
Comment by Carolyn Elefant — December 15, 2004 @ 5:40 pm
Lani Guinier did NOT have a “nanny problem” and if you do one shred of research (beyond Google!) you will see the truth. The WaPo doesn’t issue corrections lightly or just on the person’s say so, they did the research post hoc, shame on them for that, but at least eventually found the truth and so should you if you have any integrity.
Comment by barb — December 15, 2004 @ 10:50 pm
Lani Guinier did NOT have a “nanny problem” and if you do one shred of research (beyond Google!) you will see the truth. The WaPo doesn’t issue corrections lightly or just on the person’s say so, they did the research post hoc, shame on them for that, but at least eventually found the truth and so should you if you have any integrity.
Comment by barb — December 15, 2004 @ 10:50 pm
From the Baltimore Sun. If you wat tos ee more corrections in major newspapers, try this link:
http://news.google.com/news?hl=en&ned=us&q=guinier&ie=UTF-8&scoring=d
To whom it may Concern:
In 1993 my nomination to head the Civil Rights Division of the Department of Justice was nixed, abetted by a media spin cycle that distorted my views of democracy. Now I find your staff reporters erroneously catapulting me into the pantheon of nominees who lost out because they did not pay taxes for a domestic worker.[December 15, 2004 Wednesday, Pg. 1E, “Parents often turn a blind eye, hiring nannies illegally in U.S.; Nominees aren’t the only ones ignoring immigration status,” Ellen Gamerman, SUN STAFF, WASHINGTON.]
To set the record straight, there was never an issue during my nomination imbroglio about nonpayment of taxes for a domestic worker. President Clinton withdrew my nomination because of a controversy about my academic writings about democracy. The controversy was fueled by a media firestorm that reported my views inaccurately and out of context. To my dismay, I have somehow been swept up in another media controversy challenging my integrity in defiance of the facts. Other media outlets have since issued corrections. I trust The Baltimore Sun will do the same.
Those who are interested in the facts, including the ideas about democracy that were the sole source of my “dis-appointment” in 1993, might want to read two books I authored explaining those events: The Tyranny of the Majority (Free Press: 1994) and Lift Every Voice: Turning a Civil Rights Setback into a New Vision of Social Justice (Simon and Schuster: 1998).
Lani Guinier
Professor of Law
Harvard
Cambridge, MA 02138
Comment by barb — December 16, 2004 @ 8:55 am
From the Baltimore Sun. If you wat tos ee more corrections in major newspapers, try this link:
http://news.google.com/news?hl=en&ned=us&q=guinier&ie=UTF-8&scoring=d
To whom it may Concern:
In 1993 my nomination to head the Civil Rights Division of the Department of Justice was nixed, abetted by a media spin cycle that distorted my views of democracy. Now I find your staff reporters erroneously catapulting me into the pantheon of nominees who lost out because they did not pay taxes for a domestic worker.[December 15, 2004 Wednesday, Pg. 1E, “Parents often turn a blind eye, hiring nannies illegally in U.S.; Nominees aren’t the only ones ignoring immigration status,” Ellen Gamerman, SUN STAFF, WASHINGTON.]
To set the record straight, there was never an issue during my nomination imbroglio about nonpayment of taxes for a domestic worker. President Clinton withdrew my nomination because of a controversy about my academic writings about democracy. The controversy was fueled by a media firestorm that reported my views inaccurately and out of context. To my dismay, I have somehow been swept up in another media controversy challenging my integrity in defiance of the facts. Other media outlets have since issued corrections. I trust The Baltimore Sun will do the same.
Those who are interested in the facts, including the ideas about democracy that were the sole source of my “dis-appointment” in 1993, might want to read two books I authored explaining those events: The Tyranny of the Majority (Free Press: 1994) and Lift Every Voice: Turning a Civil Rights Setback into a New Vision of Social Justice (Simon and Schuster: 1998).
Lani Guinier
Professor of Law
Harvard
Cambridge, MA 02138
Comment by barb — December 16, 2004 @ 8:55 am
Barb, Thank you for the additional link and information. I just checked, and the Baltimore Sun article (free reg. req’d) has been edited to remove Lani Guinier’s name from the list of nominees with domestic worker problems.
Here’s how I would have responded, if Pres. Clinton had withdrawn my hypothetical nomination to head the DOJ Antitrust Division in 1993, because I actually wanted the laws vigorously enforced, and people now alleged that I had “not paid domestic worker taxes”:
Such a clear response would avoid second-guessing by real or imagined cross-examination experts, that would surely have occurred had I instead worded the statement to assert there was “no such issue” or “no such problem” related to withdrawing the nomination, or limited the timeframe mentioned in the response. At a time when lawyers and political nominees (and Presidents) are bad-mouthed for using legalisms and playing wordgames, direct and clear responses help to remove skepticism.
Comment by David Giacalone — December 16, 2004 @ 10:03 am
Barb, Thank you for the additional link and information. I just checked, and the Baltimore Sun article (free reg. req’d) has been edited to remove Lani Guinier’s name from the list of nominees with domestic worker problems.
Here’s how I would have responded, if Pres. Clinton had withdrawn my hypothetical nomination to head the DOJ Antitrust Division in 1993, because I actually wanted the laws vigorously enforced, and people now alleged that I had “not paid domestic worker taxes”:
Such a clear response would avoid second-guessing by real or imagined cross-examination experts, that would surely have occurred had I instead worded the statement to assert there was “no such issue” or “no such problem” related to withdrawing the nomination, or limited the timeframe mentioned in the response. At a time when lawyers and political nominees (and Presidents) are bad-mouthed for using legalisms and playing wordgames, direct and clear responses help to remove skepticism.
Comment by David Giacalone — December 16, 2004 @ 10:03 am
p.s. to Barb,
I set up a Google alert for “Lani Guinier” when I first wrote on this topic, so that I would be able to check ou,t as soon as possible, any news on the topic — corrections, explanations, new facts. It’s a good service.
Since it was I who first wondered online what Prof. Guinier was referring to in her book Lift Every Voice : (1998), in the excerpt below at page 36 (written after the 1995 AP story that first stated she had an unpaid tax problem), I would be very pleased to post any clarification that Prof. Guinier could give us:
Comment by David Giacalone — December 16, 2004 @ 11:34 am
p.s. to Barb,
I set up a Google alert for “Lani Guinier” when I first wrote on this topic, so that I would be able to check ou,t as soon as possible, any news on the topic — corrections, explanations, new facts. It’s a good service.
Since it was I who first wondered online what Prof. Guinier was referring to in her book Lift Every Voice : (1998), in the excerpt below at page 36 (written after the 1995 AP story that first stated she had an unpaid tax problem), I would be very pleased to post any clarification that Prof. Guinier could give us:
Comment by David Giacalone — December 16, 2004 @ 11:34 am