A poorly handled immigration case can be expensive. Guide on attorney malpractice, risks of unlicensed 'fixers', and filing complaints with the Israel Bar Association.
An immigration or residency status case before the Population and Immigration Authority often touches on existential questions—the right to remain in Israel, family reunification, the status of minors, or the ability to continue working and living in the country. When such a case is mishandled, the damage is not theoretical: it constitutes direct harm to the client's legal status and daily life. In our office, we encounter not infrequently the question of when an error in managing an immigration case crosses the threshold between a reasonable professional decision—even if later proven wrong—and professional negligence (malpractice) that gives rise to a claim. This article reviews the relevant legal principles, common examples, and the options available to those who believe their matter was handled inadequately.
The duty of care owed by any person to another is anchored in sections 35–36 of the Torts Ordinance [New Version]. Section 35 provides that a person who does an act that a reasonable and prudent person would not have done under the same circumstances, or who does not exercise the skill or degree of care that a reasonable and skilled person would have exercised under the circumstances, and who acts toward a person to whom he owes a duty of care—commits negligence, and if damage results—there is a tort of negligence. Section 36 expands the duty of care to anyone toward whom a reasonable person would have foreseen a risk of harm as a result of an act or omission.
From these provisions, four cumulative elements follow, all of which must be present to establish a claim of negligence against an attorney: **duty of care**—the relationship between attorney and client inherently creates a duty of care; **negligence**—a deviation from the standard of care and professional competence that a reasonable attorney would have exercised; **damage**—actual harm to the rights or interest of the client; and **causation**—proof that the damage was caused by the negligence and would not have occurred anyway. It is important to emphasize: an erroneous judgment between two reasonable options is not, in itself, negligence. An attorney is permitted to make mistakes; the question is whether the action fell outside what a reasonable and skilled attorney would have done under those circumstances.
In the field of immigration and status, there are several recurring scenarios in which the question of negligence may arise:
• **Missing a deadline for filing an appeal**—Proceedings before the Population and Immigration Authority are subject to strict deadlines. For example, in a case involving denial of an application for restoration of permanent residency status, it is established that an appeal must be filed with the Appeals Tribunal within 30 days of receiving the decision, and if rejected—an appeal may be filed to the Administrative Court within an additional 45 days. Missing such a deadline without a request for extension may thwart the opportunity to challenge an incorrect decision from the outset. • **Choosing the wrong legal course**—for example, filing an application under the humanitarian route when the factual circumstances fit a different statutory route (such as family reunification), or vice versa, in a manner that damages the chances of success or causes loss of valuable time. • **Failure to advise properly on required documents**—insufficient guidance on necessary documentation (certifications, notarized translations, evidence of marriage or family relationship), which leads to rejection of the application at the initial stage. • **Failure to update the client on developments**—changes in procedures or policy at the Population and Immigration Authority that the attorney should have monitored and warned the client about.
It should be noted that not every rejection of an application or appeal reflects negligence—many cases are rejected despite proper representation, for reasons depending on the facts of the case or the Authority's policies. The question must always be examined on a case-by-case basis.
A common phenomenon in the field of immigration is recourse to persons who are not licensed attorneys—referred to in public discourse as "machers" (unlicensed 'fixers')—for representation in residency proceedings. The Law of the Israel Bar Association, 5721-1961, provides in section 20 that representation of a person and any other claim or action on his behalf before courts, tribunals, arbitrators, and bodies or persons with judicial or quasi-judicial authority (including appeal proceedings) is "legal practice" reserved exclusively to attorneys. Section 96 of the law provides that engaging in legal practice by someone who is not an attorney constitutes a criminal offense.
The practical implication: anyone who uses an unlicensed person for filing an appeal or representation before authorities with quasi-judicial authority exposes himself to a dual risk—both the absence of professional liability (an unlicensed 'fixer' is not subject to disciplinary oversight or to the ethical obligations that apply to attorneys, and generally does not carry professional liability insurance either—insurance that is common among attorneys, although it is not required by law), and the risk that the handling of the case, with its sensitive deadlines, will be done without the legal training required. As a general rule, professional representation in complex residency proceedings, and certainly in appeal and appellate proceedings, requires representation by a licensed attorney.
One of the central difficulties in claims of negligence against attorneys, including in immigration cases, is the need to prove not only that the attorney was negligent, but also that absent the negligence—the original case (the application, appeal, or proceeding) would have succeeded. This is in effect "a trial within a trial": the client-plaintiff must show what the realistic chances of success of the original proceeding were, and what damage was caused by the loss of that opportunity. This is not a simple evidentiary burden, especially in residency proceedings where the Authority's decision includes a significant component of administrative discretion, and it is not always possible to determine with certainty "what would have happened" had the required action been taken in time.
Beyond the option of filing a civil claim for damages, a client who believes his attorney was negligent may file a complaint with the ethics committee of the Israel Bar Association through an official complaint form. If the committee believes there is a basis for it, it may file a charge against the attorney before the regional disciplinary tribunal; this proceeding is conducted according to the rules of the Israel Bar Association (Rules of Procedure of Disciplinary Tribunals), 5775-2015. If the complaint is rejected at the regional committee level, it may be appealed to the national ethics committee pursuant to section 63 of the Law of the Israel Bar Association.
It is important to understand: the disciplinary proceeding is designed to examine violations of professional ethics and the attorney's compliance with his obligations to the Bar and the public, and the possible sanctions (reprimand, suspension, disbarment) do not include monetary compensation to the client. A civil claim for damages, by contrast, is conducted in a civil court and is intended to obtain compensation for financial and sometimes non-financial harm. These are two separate routes that can coexist, and filing one does not preclude the other.
The first step is to gather all relevant documents—correspondence with the previous attorney, decisions of the Authority, proof of filing and deadlines. Thereafter, it is advisable to obtain an independent legal opinion that will examine whether there was indeed a deviation from the standard of care owed, what damage was caused, and whether there is a causal relationship between it and the alleged conduct. Only after such an examination can a decision be made whether to file a complaint with the Israel Bar Association, a civil suit, or both proceedings in parallel.
No. Rejection of an application or appeal may stem from policy considerations of the Authority, from the factual circumstances of the case, or from the fact that it is a borderline case—even when the legal handling was proper and reasonable. Negligence is established only when the attorney deviated significantly from the standard of care and competence that a reasonable attorney would have demonstrated under those circumstances, and not every negative outcome indicates this.
A complaint to the Bar examines violations of professional ethics and may result in a disciplinary sanction against the attorney, but does not entitle the client to monetary compensation. A civil suit is conducted in court and is intended to obtain compensation for harm caused. Both can be filed in parallel, as they are distinct proceedings in nature.
Yes. A person who is not a licensed attorney is not subject to disciplinary oversight or to the ethical obligations that apply to attorneys, and generally does not carry professional liability insurance either—insurance that is common among attorneys, although it is not required by law. Representation in proceedings of a quasi-judicial nature, including appeal proceedings, is reserved by law exclusively to attorneys, and recourse to an unlicensed person may leave you without adequate legal protection in the event of error.
You must prove four cumulative elements: the existence of a duty of care owed by the attorney to you, actual negligence (deviation from the standard of reasonable care), actual harm caused to you, and a causal connection between the negligence and the harm—including proof that absent the negligence, the chances of success of the original case would have been significantly different.
Civil suits in Israel are subject to a statute of limitations, and the longer the time that passes since discovery of the harm, the greater the risk that the suit will be dismissed on grounds of the statute of limitations.