Copyright © 2004
CHAPTER 15
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
to the
(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
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
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.
See, e.g.,
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.
In such
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.
In
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
outside the
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:
...
(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.
See
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
intent.
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.