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The art of 'CYA' compliance

|Written By Jennifer Nees
The art of 'CYA' compliance

During the past few years of practice, I have noticed that clients are seeming to take far less responsibility for the processing of their applications and the overall process, while at the same time the requirements and accompanying practice have become more strict.

In part, it’s my own doing. One of the cornerstones of the firm where I practise is that we provide excellent customer service, and I want our clients to feel pampered and eased through immigration’s confusing labyrinth.

We prepare letters explaining the process and the pros and cons, we have lengthy discussions and seminars over the different processes and their effect on the company and individual employees, and send out client alerts notifying them of immigration’s breaking news (there’s more of it than you might suspect!).

However, there are always underlying nagging questions: does the client read what I send them? Are they ensuring it’s accurate? What happens if they don’t? While I can give the client the document, I cannot hover over them to make certain it is read and absorbed.

Why does it matter? I want my clients to feel ownership over their own applications and the future of their employees. Don’t we all want this?

There is great importance in ensuring that clients’ needs are met and that the services they hire a lawyer for are delivered with a full and fair understanding of the process and the obligations therein. But, it can be hard to know if at all times the message has been properly received.

I have struggled in my own practice to find a balance that protects the firm from third-party inspection in the event of a file blow-up, but that also gives the client some impetus to take a more active role in the process. Thankfully, file blow-ups happen very rarely, but they do happen.

Most firms have some sort of a “Cover Your Ass Compliance Plan of Action.” Drafting and distributing solid retainer agreements, opening letters/e-mails, and closing letters are par for the course and the hallmarks of a good CYA plan.

For many small firms, these documents have evolved over the course of many years and the practices and styles of different lawyers. They’ve been altered to reflect changes in policy, law society regulations, and business demands. It is important every once in a while to review these documents and make certain they carry the appropriate language, and are uniform throughout the firm.

Within these letters, it is important the lawyer outline exactly what is expected of everyone involved.

For immigration lawyers this includes:
•    identifying to the client that the service is over;
•    that tracking the validity dates of the received visa is the employer’s and employee’s

     responsibility despite the fact we will track them as well; and
•    changes to the working relationship between employer and employee must be brought to the

     lawyer’s attention in writing.

Our agreements have language regarding the effect of changes to immigration processing, or the applicant’s personal situation over the course of the application that may render him/her inadmissible.

Each type of practice has its own pitfalls and minefields, and covering those pitfalls in the retainer agreement puts everyone on notice.

For all practices, retainer agreements must include statements indicating if you lie to us, you reap what you sow; we can only work with the information we are given; and that the ultimate responsibility and accuracy of the file rests in the thorough review and consideration of the applicant.

I send everything to the client to be reviewed prior submitting it anywhere, and it is incumbent upon every lawyer to be certain the onus shifts back to the client to ensure accuracy. Having it in writing is even better.

With the swiftness of e-mail, we now are able to track these matters throughout their life cycle, and common practice is to follow up every important phone call with an e-mail reiterating the same.

CYA compliance may seem like a no-brainer. We all do it every day, with every file we touch, but lawyers should review their compliance plan regularly, discuss it with staff, look at trends, and push clients to read the fine print and underlined sentences on every document we send them.

When the file blows up, you want to be standing on the right side of the debris field.

Jennifer Nees is a senior associate at business immigration boutique firm, the Bomza Law Group. She can be reached at jnees@bomzalawgroup.com.

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