Speaking Out

BY JAMES EHRMAN

Like many Foreign Service officers, I began my career doing consular work. But as time went on, I had contact with ordinary American citizen problems only while serving as duty officer. Retirement changed little. We routinely spent summers abroad but, aside from mailing an absentee ballot, had limited need to contact the American embassy for assistance.

Summer 2014 was different. On Aug. 8, while crossing a street in Rome, I was hit by a car and taken by ambulance to a hospital. X-rays revealed three fractures to my leg and ankle. This led to two operations, a month of hospitalization and multiple weeks of rehab.

That experience was unpleasant but not devastating. We have access to an apartment in Rome, so I had a place to go (plus friends who came to visit) after leaving the hospital. Nor was surgery traumatic. Orthopedic and hospital staff members were friendly and professional and, in Italy, public health services are, for the most part, free.

The several thousand dollars of expenses that followed arose from my need to hire a caretaker; rent or purchase a wheelchair, crutches and other recovery-related equipment; and pay for the ambulance rides that took me to and from the hospital for follow-up visits and physical therapy.

In Italy these expenses are by law the responsibility (ex post facto) of the insurance company of the driver who hit me. The monthslong delay before reimbursement arrives is grating but, as I discovered, that’s not half the problem. One doesn’t deal directly with an insurance company; one hires a lawyer. And where does one find a lawyer? Call the U.S. embassy, of course!

Enter the Listed Lawyer

My daughter called the embassy while I was hospitalized, so it was she who took “Mr. Z’s” name from the consular section’s “Lawyers and Notaries List.” Mr. Z readily accepted and came to the apartment to discuss matters. He seemed well-informed, outlined procedures and said his standard initial fee (just under 3,000 euros) could be paid in two installments, a month apart. I signed the document and made the initial payment. And also the second.

In between, the bills for recovery-related care and equipment mounted while available euro resources were depleting. The uncertainty of my predicament took an added toll. Couldn’t there be an advance, I asked, from the insurance company? They, after all, must pay when a final tally is made. Mr. Z was sympathetic. He would see what he could do.

Shortly thereafter he shared the good news: His efforts had been fruitful and the insurance company, in an exception to its usual policy (and given the special circumstances of my case—a foreigner hit while within a crosswalk), would provide an advance that would approximate “half” the anticipated final payment.

My joy was short-lived. It wasn’t the surprisingly small “ half” (2,000 euros against more than 10,000 euros in total expenses) the insurance company offered, but the information—confirmed by an Internet search—that Italian law requires that an advance be offered, with a set deadline and in an amount “congruo” (adequate) to the situation, that disturbed me.

Further online reading revealed other details concerning local standards and legal requirements, about which Mr. Z had been silent. That, combined with other aspects of his dealings with the insurance company, convinced me to terminate our relationship.

The Consulate’s Predicament

When I informed the consulate and asked that Mr. Z be removed from its lawyers list, I learned that, though sympathetic with my plight, the consulate could not comply with my request.

Per 7 FAM 991, U.S. embassies and consulates are supposed to post lists of attorneys “who are believed to be qualified to perform legal services on behalf of U.S. citizens.” (A routine disclaimer absolves the embassy or consulate of responsibility “for the professional ability ... or the quality of services provided” by those so included.)

When I informed the consulate and asked that Mr. Z be removed from its lawyers list, I learned that, though sympathetic with my plight, the consulate could not comply with my request.

Further, the inclusion of an attorney’s name is at the embassy’s “exclusive” discretion, and no person “has a right” to be added to the list (7 FAM 992). And the department may remove a person from the list at any time and is not obliged to disclose a reason. The FAM also underscores that such lists are for the benefit of U.S. citizens, most of whom may not speak the host country language.

There’s just one catch. Notwithstanding the FAM’s clear intent that these lists are to serve American citizens’ interests, current regulations provide no way to act on a complaint in a timely manner. 7 FAM 993 reads: “Consular officers should keep a record of such complaints. Any attorney about whom more than three complaints are received from separate persons in a two-year period should be brought to the attention of [the department] for appropriate guidance” (emphasis added).

This, in effect, elevates an attorney’s “non-right” to stay on the list above protection of U.S. citizens’ interests. Once on the list, reasonable suspicion of inappropriate behavior is not enough to get the attorney off; that behavior may continue with impunity until such time as more than three complaints are received within a two-year period.

The Odds in Favor of Victimization

Think about it: Before one can complain, one must recognize that one is or has been the victim of inappropriate attorney behavior. This is problematic in a situation where most U.S. citizens “may not speak the host country language” and are equally unlikely to be familiar with rights they may have under host country laws.

Nor is it likely their networks of knowledgeable friends or professional contacts whom they might consult while in the United States would be duplicated while abroad—or that the circumstances, possibly traumatic, giving rise to their need for an attorney would allow for reasoned reflection. In such an environment, an unscrupulous attorney would have little difficulty treating supplicants not as “clients” but as “prey.”

Not every complaint may relate to improper attorney conduct; misunderstandings can arise from an unfamiliar foreign language or legal system. In such circumstances the reduction of an oral complaint to one in writing, to which the attorney in question might similarly respond, could produce an amicable outcome.

However, when such is not the case, and the complaint does relate to improper attorney conduct, the “non-right” of the attorney to have his or her name included on the list must yield to the department and embassy’s obligation to put American citizens’ rights first and orient their actions toward that end.

A straightforward revision of the FAM can fix this problem:

First, excise the “more than three complaints in two years” standard in 7 FAM 993.

Second, rewrite the appropriate subparagraph to specify that an American citizen’s complaint be put in writing, with the problem attorney given a chance to respond. Should the attorney fail to respond, his name will be removed from the Lawyers and Notaries List immediately.

If the attorney’s response does not satisfy the complainant, the consulate will refer the matter to the department and, in the meantime, suspend the attorney from the list until a final determination is made on the case.

There’s no way of knowing how many U.S. citizen victims shady (but “listed”) lawyers have claimed in the past, or how many such victims might be spared in the future. But this much is certain: Leaving the “more than three complaints in two years” standard in place (complaints by persons who first must realize they’ve been victimized) is bound to raise the odds for victimization. Early FAM revision can lower this risk.

James Ehrman is a retired political officer who served in Paris, Rome, Lisbon, Lima, Bangkok, São Paulo, New Delhi and Manila. His wife, Sylvana Mancuso, headed Embassy Rome’s visa section during their second tour there.

Read More...

• Lists of Attorneys and Legal Resources (U.S. Department of State Foreign Affairs Manual, 7 FAM 990)