Copyright © 2004 David Weissbrodt and Laura Danielson
ETHICAL DIMENSIONS OF IMMIGRATION PRACTICE
Immigration lawyers are confronted by ethical issues
more often than the majority of other practitioners. The non-citizen clients of the immigration lawyer
are often suspicious about the fairness of
This chapter analyzes three typical ethical problems encountered by the immigration lawyer from the perspective of both the Model Rules of Professional Conduct and the Model Code of Professional Responsibility. The three problems deal with common situations faced by immigration lawyers:
(1) The non-citizen is in violation of his or her immigration status, or has fraudulently married to gain permanent resident status. Must the lawyer report his or her client to the immigration authorities?
(2) A non-citizen consults the lawyer about admission
(3) An immigration lawyer is paid by a company to obtain a visa for an employee or potential employee. In the course of the representation the lawyer learns facts--such as the employee's career plans--which may be adverse to the new employer's interest. What should the lawyer do? Can he or she tell the employer? Whom does the lawyer actually represent?
While each problem will be examined in some detail, this chapter does not attempt to provide definitive answers but merely raises the ethical issues. Several standards address these issues.
The Model Rules of Professional Conduct drafted
by the American Bar Association (ABA) have now been adopted by more than three-fourths
of the jurisdictions in the
This chapter discusses three sources of ethical
constraint on the immigration lawyer. The
first source is the Model Rules adopted by the
The second source derives from the regulations governing the conduct of lawyers who appear before the Department of Homeland Security. In 1996, the Code of Federal Regulations listed fifteen nonexclusive reasons for suspending or disbarring the immigration lawyer, some of which overlap the Model Rules and some of which are unique to immigration practice. 8 C.F.R. § 292.3. In 2000, the grounds for suspension or disbarment were moved to 8 C.F.R. §3.102. 65 FR 39513. The grounds for punishment remain largely the same as those originally listed in 1996. 8 C.F.R. 292.3 also lists the general rules and procedure for disciplining a practitioner.
The third source is the Model Code adopted by the
§ 15-1 MUST THE LAWYER REPORT HIS OR HER CLIENT TO THE IMMIGRATION SERVICE?
A situation that frequently confronts the immigration lawyer is when the attorney becomes aware, through discussions with the client, independent investigation, or other outside sources, that the client is not observing his or her visa conditions. For example, a student-client with an F-1 visa accepts employment outside the educational institution without the requisite permission. See chapter 7 for a discussion of F-1 visas. Under these circumstances, what is the lawyer's obligation to (a) report the client's violation of immigration status to the immigration authorities and/or (b) advise the client as to the possible consequences of accepting employment?
Similarly, an immigration attorney is occasionally
confronted with a non-citizen who marries a
§15-1.1 Reporting the Client's Activities
Under the provisions of both the Model Rules and the Model Code, the lawyer appears to face competing mandates concerning whether to report the client. On the one hand, the Model Rules require the attorney not to reveal a confidence except in a limited number of circumstances. Model Rules of Professional Conduct Rule 1.6 (1983). The Model Code says that the lawyer has a duty to preserve the client's confidences and secrets. DR 4-101(B) of the Model Code provides that the lawyer shall not reveal confidences and secrets of his or her client. In addition, Rule 1.6 prohibits any use of the confidence that disadvantages the client. In the F-1 student example, the information about the student's employment is a client confidence or secret because it was obtained in the course of representing the client. Similarly, information regarding a client's fraudulent marriage received in the course of representing that client is also a client confidence or secret. In the former case, if the attorney informed the immigration authorities of the client's employment, the client could be deprived of the student visa and possibly removed. Likewise, if the attorney informed the immigration authorities of his or her client's fraudulent marriage, that client could be denied resident status, prosecuted, fined, removed, and/or subject to a bar for readmission. Hence, it appears the lawyer cannot disclose the information to the immigration authorities without violating either the Model Code or the Model Rules.
The Model Rules, the Model Code, and the applicable
C.F.R. provision, however, prohibit the lawyer from making false statements
to the immigration authorities. According
to the Model Rules, the lawyer shall not "knowingly ... make a false
statement of material fact or law to a third person." Model Rules of Professional Conduct Rule 4.1(a)(1983).
Likewise, according to DR 7-102(A) of the Model Code, the lawyer "shall
not ... (3) conceal or knowingly fail to disclose that which he is required
by law to reveal." The Code of
Federal Regulations contains similar language.
8 C.F.R. §3.102. On certain applications,
the lawyer is required by law to reveal information about his or her client.
If the lawyer knowingly makes a false statement on these forms, he
or she is subject to substantial penalties.
Attorneys who knowingly make false statements can
also be criminally liable for their unethical conduct. In United States v. Maniego, the court
affirmed the conviction of a lawyer whom a jury found to have knowingly prepared
immigration documents that were based on fraudulent marriages in violation
of 18 U.S.C.A. §§371 and 1546.
circumstances, a lawyer faces either violating the mandate regarding client
confidences or violating the mandate regarding false statements. This immigration lawyer's dilemma, however, is
not without resolution. The lawyer is
charged with preserving client confidences only within the bounds of the law.
Hence, while a lawyer cannot volunteer information about the client's
activities to the immigration authorities, he or she must advise the client
to answer truthfully. The lawyer does not impermissibly violate a client
confidence when he or she proceeds with an application at a client’s request
and truthfully answers a direct question because to make a false statement
would violate the law.
§ 15-1.2 Advising the Client
(W)hen a lawyer knows that a client proposes a course of action that is likely to result in substantial adverse legal consequences to the client, the lawyer’s duty to the client ... may require that the lawyer offer advice....
The ethical considerations of the Model Code contain essentially the same substance. EC 7-8 of the Model Code provides:
A lawyer should exert his best efforts to insure that decisions of his client are made only after the client has been informed of relevant considerations. A lawyer ought to initiate this decision-making process if the client does not do so.
addition, EC 7-5 of the Model Code notes that "[a] lawyer as advisor
furthers the interest of his client by giving his professional opinion"
about the consequences of his or her client's decision. In the case of the F-1 student, the client may
suffer such adverse consequences as loss of visa and removal. If the client later qualifies for an immigrant
visa, the client, at a minimum, may be required to pursue immigrant status
The client may not have realized the adverse consequences
of his or her decision to accept employment at the time it was made.
Therefore, the lawyer's obligation to his or her client is to inform
the client of the negative consequences of violating the visa conditions.
The strength of the obligation may depend on whether the lawyer learns
of the student's employment before or after the work commences. If the lawyer learns of the student's intention
before the employment begins, the duty to act is stronger because the lawyer
can prevent the adverse consequences by rendering the correct legal advice.
If the lawyer learns afterwards, the duty to act is not as great because
the legal consequences (loss of visa, removal, and ineligibility to adjust
status in the
§ 15-2 SHOULD THE LAWYER TELL THE CLIENT ABOUT A FIXED INTENT TO IMMIGRATE?
Different sorts of ethical problems are raised
in advising the client regarding his or her fixed intent to immigrate to the
Both the Model Rules and the Model Code have sections dealing with client fraud and the lawyer's duty, none of which provide any clear solutions to this problem. Rule 1.2(d) of the Model Rules refers most directly to this situation: "[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent...." The Model Code contain similar prohibitions. According to DR 7-102(A) of the Model Code:
...(6) Participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false.
(7) Counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.
In addition, EC 7-6 of the Model Code discusses the lawyer's position in assisting the client in developing state of mind evidence. It provides:
[The lawyer] may properly assist his client in the development and preservation of evidence of existing motive, intent, or desire; obviously, he may not do anything furthering the creation or preservation of false evidence.
also the similar language in 8 C.F.R. § 3.102.
Those provisions, however, do not resolve whether the client commits
a fraud in declaring that he or she has no present intent to immigrate. It is not clear that the lawyer would assist
the client in committing a fraud or in preserving false evidence by discussing
the effect of the client's intent on his or her immigration status. The situation is made more complex because only
the client knows his or her own intent. An
attorney, however, can advise the client as to the consequences of pursuing
a specific course of conduct, which is separate from the question of the client's
In addition, one might draw inferences from the drafting history of the Model Rules. In an earlier discussion draft of the Model Rules, Rule 2.3(a)(2) declared that a lawyer could not give advice that he or she "could reasonably foresee would ... aid the client in contriving false testimony." No counterpart to this draft Rule 2.3 appears in the Model Rules adopted in 1983. From this omission one could infer (1) that the drafting committee did not consider this advice an ethical violation, (2) that in a criminal law context this draft provision would be inappropriate, or (3) possibly that Rule 1.2 already covered this situation. In any case, even if draft Rule 2.3(a)(2) had appeared in the final version, the lawyer's advice would be unethical only in the unlikely event that it aided the client in contriving false testimony. Hence, the immigration lawyer probably can explain the consequences of the client's present intent to immigrate or his or her eligibility for a nonimmigrant visa without ethical violation, so long as the lawyer does not suggest which course of action the client should actually adopt.
The 1990 Act addressed this dilemma to an extent by recognizing the "dual intent" of many non-citizens seeking nonimmigrant visa status under the H and L categories. See §§ 6-8, 6-12, supra. Under the 1990 Act, a temporary worker with an H visa or a transferee with an L visa is not precluded from eventually seeking an adjustment of his or her status to that of a permanent resident. The problem still exists, however, with regard to several other nonimmigrant statuses, such as B, F, and J.
§ 5-3 WHOM DOES THE LAWYER REPRESENT?
Another problem concerns the lawyer who is retained by an employer to secure the proper work authorization for a present or prospective non-citizen employee. For example, consider an engineering company that hires the lawyer to obtain an L-1 visa for a non-citizen engineer. Although the company retained the lawyer, the lawyer is viewed as being in a dual representation situation. The non-citizen employee becomes a client during the petition process because the process usually requires the lawyer to obtain confidential information from the non-citizen employee and the lawyer may be asked to give legal advice regarding the non-citizen employee’s visa eligibility. The lawyer is now in a dual representation because he or she is seen as representing two co-clients in a single matter. Dual representation also results when the non-citizen employee retains the lawyer. When the firm agrees to help the non-citizen employee by filing the petition through the lawyer, the firm agrees to representation by the lawyer.
Lawyers in dual representation must take special care from the outset since two ethical concerns are raised. First, the lawyer must consider whether the interests of each client can be represented without conflict. The Model Rules state in Rule 1.7 that:
[A] lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
In most cases the interests of the non-citizen employee and the company will coincide in that the company needs the skills of the individual and the non-citizen employee wants to work for the company in the United States. Nonetheless, in representing both the company and the non-citizen employee, the company’s interest could end up being directly adverse to the non-citizen’s interest. For example, the possibility exists that in discussing the non-citizen’s ultimate career goals, the lawyer learns that the non-citizen plans eventually to open his or her own engineering firm. The non-citizen’s interest is adverse to the employer's interest. In addition, the lawyer now faces a separate conflict of interest. Client confidences are protected under both the Model Rules and the Model Code. Rule 1.6 of the Model Rules provides that the "lawyer shall not reveal information relating to the representation of a client" except in a limited number of circumstances such as to prevent the commission of a very serious crime. DR 4B101(B) of the Model Code provides:
[A] lawyer shall not knowingly:
(1) Reveal a confidence or secret of his client.
(2) Use a confidence or secret of his client to the disadvantage of the client.
The Model Code also adopts the position under EC 4-5:
A lawyer should not use information acquired in the course of the representation of a client to the disadvantage of the client and a lawyer should not use, except with the consent of his client after full disclosure, such information for his own purposes.
It appears that the lawyer cannot reveal the non-citizen’s statement to the employer, but at the same time the lawyer has a duty to keep the employer informed. Model Rule 1.4 states that “[a] lawyer shall . . . (3) keep the client reasonably informed about the status of the matter.”
These potential conflicts of interest and confidentiality problems are not insurmountable. The Model Rules provide more guidance than the Model Code in this dilemma. Rule 1.7 allows a lawyer to represent clients with conflicting interests if the lawyer reasonably believes that the representation of each client will not adversely affect the relationship with the other and that each client consents to the arrangement after consultation. According to the Comment to Rule 1.7, the lawyer should consider "the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client." The lawyer also should consider whether each client is willing to accommodate the other interest involved. Because of their common interest in allowing the employee to work for the employer, each may be willing to accommodate the other's interests.
With full disclosure of the potential for conflict and the consent of the parties to the lawyer's role in representing them both, the lawyer can represent the non-citizen and the employer, sharing relevant information between the two. Hence, dual representation is ethically possible, but lawyers must take the proper action from the beginning. Before representation, lawyers need to obtain consent from both clients after full disclosure. Lawyers should also seek consent to limit the scope of representation. Model Rule 1.2(c) states “[a] lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent. For example, the lawyer and the two clients could agree that the scope of representation for the non-citizen employee is limited to obtaining the visa and that the lawyer will not disclose confidential information given by either the employer or the employee unless required by law. For example, the lawyer would need to explain to the non-citizen employee that he or she would be reviewing some information pertinent to the petition process, such as prevailing wage determinations, to which the non-citizen employee will not be privy.
As stated above, the lawyer will have to make adequate disclosure to both clients to obtain effective consent. Model Rule 1.6, pertaining to confidentiality of information, states that “[a] lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent . . ..” Similarly, Model Rule 1.7, concerning conflicts of interest, states that “[n]otwithstanding the existence of a concurrent conflict of interest . . . a lawyer may represent a client if . . . (4) each affected client gives informed consent, confirmed in writing.” The level of disclosure required will vary, but enough information should be provided to allow each client to make an informed decision on whether to continue with representation. Model Rule 1.0(e) defines “informed consent” as “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”
Certain disclosures particularly relevant to the employer-employee hypothetical include: (1) potential problems during the application process, (2) specific conflicts of interest that may arise, including disclosures that must be made to the immigration authorities, (3) full or limited waivers of confidentiality, and (4) ethical constraints of dual representation and why the lawyer is obtaining written consent. Disclosure and written consent can be accomplished on a single consent form. This form should be drafted with care and tailored to each client’s circumstances. The form should also be explained to each client before signing.
In the event a conflict of interest or confidentiality issue arises without the lawyer obtaining written consent at the start of dual representation, the lawyer will likely be forced to withdraw. The lawyer must withdraw from representing both clients in that matter if the lawyer cannot use independent judgment on each client or cannot assure each client that his or her confidences will not be breached. Alternatively, the lawyer may attempt to obtain consent when the conflict arises, but the duties of loyalty and confidentiality will often make this nearly impossible.