Desmond P Fitzgerald

Winston Churchill once said, “All men make mistakes, but only wise men learn from their mistakes.” One of the most important characteristics of my success in the practice of the law has been my ability to effectively utilize and apply the information I have gained through my years of experience, including my mistakes.

In 1998, when I was two years out of law school, I filed an appeal and a request for administrative review late and failed to inform my client that he could bring a claim against me for ineffective assistance of counsel to the Board of Bar Overseers.  I did inform the client as to the status of his case and continued to represent him through a number of alternative petitions in efforts to legalize his immigration status. The court ultimately determined that there was no ineffective assistance of counsel, as the case was properly denied because of lack of evidence to support the asylum claim and not because of the late filings, (read the official court decision: ) and therefore was not legal malpractice.  Nevertheless, I received what is called a public reprimand for these errors, even though prior to my case, there had been no specific written explanation from the BBO regarding the duties of an immigration attorney to his client when a deadline is missed.  I am also licensed to practice in Florida and Washington DC, and as customary in these jusrisdictions they recorded the same reprimand for the above incident in MA.

As hard as this experience was, it taught me the importance of developing a robust system of procedures and protocols for my firm, FitzGerald & Company, to prevent similar issues from happening in the future, and to leverage technology (we invested in a sophisticated practice management system) to deliver a consistent and superior level of service to our clients.  I am also very proud of the team of multicultural professionals that constitutes FitzGerald & Company.  Since then, I have served the immigrant community well, as evidenced by the growth of my practice and the important victories I have obtained which have made significant contributions towards the development of just and fair immigration and criminal laws in the U.S.  These include numerous decisions recorded in the First Circuit Court of Appeals, the U.S. District Court of Massachusetts, U.S. Immigration Court and the Massachusetts Superior Court. Cases that have established the right of legal permanent residents to obtain citizenship (See Li v. Chertoff,  490 F. Supp. 2d 130 (D. Mass. 2007)); defined the limits on claims of asylum based on forced conscription (See Tobon-Marin v. Mukasey, 512 F.3d 28 (1st Cir 2008)); protected the rights of individuals to have administrative cases reviewed in the District Court under the Writ of Mandamus provision of title 28 in cases of government misconduct (See Osunsanya v. United States Citizenship & Immigration Servs., 2007 U.S. Dist. LEXIS 9474 (D. Mass. 2007); established the rights of step-children to be treated under the immigration law as any other child (See Matter of X, Newark Immigration Court (July 6, 2007)) established that one could not violate a restraining order that had not been properly served (See Commonwealth v. Todd, 1999 Mass. Super. LEXIS 572 (Mass. Super. Ct. Dec. 30, 1999)); and established that the U.S. District Court has exclusive jurisdiction over the application for naturalization upon the filing of a complaint and that the USCIS may not continue to process an application independently. Escobar v. Chertoff, 2008 U.S. Dist. Lexis 40052, 2008 WL 2066938 (D. Mass. May 14, 2008) [Other published and unpublished decisions Krazoun v. Ashcroft, 350 F.3d 208 (1st Cir. 2003); Sandhu v. Gonzales, 185 Fed. Appx. 4 (1st Cir. 2006); Osorno v. Gonzales, 2006 U.S. App. LEXIS 6768 (1st Cir. 2006); Mana v. Gonzales, 128 Fed. Appx. 167 (1st Cir. 2006); Caballero v. Gonzales, 130 Fed. Appx. 487 (1st Cir. 2005)]