Ethics For Immigration Lawyers - A Personal Perspective
Cyrus D. Mehta
This article is based on an outline, which I prepared as moderator of “Ethics for Immigration Lawyers” under the aegis of the Practising Law Institute in New York City on November 27, 2001.
Ethical considerations are crucial for immigration practitioners for several reasons. We are dealing with clients who are from countries that have legal systems and standards that are very different from ours. They may expect their US lawyer to have the ethical standards of lawyers that they have dealt with in their own countries.
We are also dealing with agencies such as the INS, DOL and DOS, which have huge backlogs in processing applications. The client is inherently anxious, and possibly, irate too.
Furthermore, our practice is extremely deadline driven. It is imperative that we file before a visa expiration deadline. In certain situations, even if there is no deadline, it is important to file for an Employment Authorization Document well in advance so that it does not jeopardize a client’s employment.
One also has to keep up to date not just with changes in the law, but also with policy changes within various agencies including subtle changes in terms of where, when and how to file with each of the departments within the agencies.
The practice lends itself to potential ethical problems as it more often than not involves dual representation. Each time Congress passes immigration legislation, it requires an examination of how it could be handled through the prism of dual representation. We tend to represent employers and employees, as well as both the parties in a marriage. While the interests of both clients may initially coincide making dual representation possible, these relationships are fraught with potential conflict of interest issues down the road.
In order to establish ineffective assistance of counsel in immigration court, the client must file a bar complaint against the attorney, as prescribed by Matter of Lozada, 19 I & N Dec. 637 (BIA 1988). Many lawyers are subject to complaints, often friolous, only because of the Lozada requirement of a bar complaint.
While one may be motivated to help a client in unfortunate, and often very vulnerable circumstances, it is important that we lawyers do not assist a client in making false statements on forms or offering false evidence. A lawyer may also be charged with constructive knowledge of the falsity of the evidence when there was reason to know about it.
Finally, immigration lawyers have also adapted to the internet faster than most due to the worldwide interest in visiting, working and doing business in the US. Since immigration law is a federal practice, an immigration lawyer can represent a client before the INS or other federal agencies in any part of the country. However, even that is fraught with ethical problems.
All of these issues will be discussed through four broad topics
1. IMMIGRATION LAW FIRM MANAGEMENT - WEB SITES, E MAIL CONTACTS, FEES
2. DUAL REPRESENTATION IN EMPLOYMENT AND FAMILY-BASED IMMIGRATION PRACTICE
3. ETHICAL ISSUES WHEN PREPARING IMMIGRATION DOCUMENTS, AND
4. RULE GOVERNING PRACTICE BEFORE THE IMMIGRATION COURT AND INS
ABA Model Rules of Professional Conduct
Simon’s New York Code of Professional Responsibility Annotated
Ethics and Your Immigration Practice, American Immigration Lawyers Association
1. IMMIGRATION LAW FIRM MANAGEMENT - WEB SITES, E MAIL CONTACTS, FEES
Lawyer advertising permissible provided it is not false, deceptive or misleading.
One cannot guarantee the outcome of a case, and it would also constitute exaggerated or outlandish puffery if a lawyer claimed to be the “leading” or “most successful” lawyer in New York City. However, it might be appropriate to say things such as “prompt and efficient service” or “insightful advice.”
2. Lawyer may identify area of practice, but cannot state that s/he is a specialist, unless recognized or certified as a specialist.
A lawyer cannot state that she is specialized in immigration law. It might also be prudent to avoid using the word “expert” in H-1B visa petitions, unless it is announced to other professionals or at a bar seminar.
3. All broadcast advertisements in New York must be retained for a period of one year, including websites.
4. All advertisements that are mailed or distributed shall be filed with the Departmental Disciplinary Committee in New York.
5. In-person or telephone contact prohibited, except from close friend, relative, former client or current client.
6. Written communication is permissible, unless prospective client has made known a desire not to be solicited, or solicitation involves coercion, duress, etc.
In person or telephone contact prohibited, unless it is to close friend, relative or client. Note EOIR (see Section 4, below) rule even prohibiting the use of runner and does not include “close friend.”
b. E mail Communications
A lawyer/client relationship can start sooner than you think! An express contract is not required, nor is a payment of fees.
Immigration lawyers constantly get e mails from around the country, and from outside the US too.
Some lawyers do not respond. Others respond with a short answer and inviting the inquirer to schedule a consultation.
Precautions to take during E mail contacts
1. In an E mail contact, make sure that advice giving does not constitute representation.
2. Disclaimer: This information is generalized and should not be relied upon as legal advice; and this communication does not create an attorney-client relationship.
3. Ensure e mail communications are secure, use disclaimer to protect confidentiality of information, and avoid impulsive responses.
If an attorney responds in a way that it would constitute a lawyer/client relationship, all the rules governing such a relationship kick in. The lawyer will have to competently represent the client as well ensure that there is no conflict, and incorporate e mail contacts under the system that an attorney has to maintain to check conflicts. DR 5-105.
The prudent lawyer, obviously, would prefer to avoid a lawyer/client relationship in casual e mail contacts, and this is ever so important when the lawyer takes part in a question-answer session in an internet chat session. In such a context, especially in a chat session, the lawyer must be careful to avoid impermissible advertising or solicitation.
The conflicts issue is very real during e mail contacts. The immigration lawyer using the internet should be careful not to receive confidential information from a casual question that would disqualify the lawyer from representing a longtime client in a matter. Immigration lawyers talking in open chat rooms should avoid people from disclosing confidences or secrets. NIGHTMARE SCENARIO: If you are representing a battered spouse in a self-petition, and the abuser approaches you online to find out how he can safeguard himself!!
c. Web sites
1. Websites may be governed under rules governing lawyer advertisements as well as legal practice.
The prudent lawyer should ensure that the web site is maintained as an advertisement or as a means to provide general legal information. If the website also serves as a vehicle for the practice of law, it must have Statement of Clients Rights and Responsibilities, if a NY-based site, pursuant to 22 N.Y.C.R.R. 1210.1, as well as a conflicts check system pursuant to DR 5-105(E).
The website must also have the requisite disclaimers.
An immigration lawyers’ website blurs the distinction between information about legal services (advertising), delivery of legal information (protected free speech) and legal advice (delivery of legal services, which is subject to regulation).
2. Retain a copy of the website and any changes, although this may not be too practical.
If changes are made every day or every hour, it might be difficult to retain a copy of each change. However, store each version electronically as much as possible
3. Inform viewers the jurisdiction in which each attorney is licensed, as it should not mislead the potential client that an attorney is able to practice in a jurisdiction where s/he is not licensed.
In New York, there is no ethical prohibition against advertising to clients who reside outside the state of New York with respect to matters as to which a lawyer may competently and lawfully practice. However, it is very important to inform potential clients about the jurisdiction in which the attorney is licensed.
A murky area is whether Internet advertising is also subject to the rules of other states in which the advertisement appears and from which potential clients are solicited.
4. Make sure that the practice of immigration law in another state does not violate that state’s laws regarding unauthorized practice.
This is the murkiest area. To what extent can a lawyer advise clients in states in which the lawyer is not licensed. There are many circumstances where lawyers licensed in one state have been able to render legal services to clients resident elsewhere. In Birbower, Montalbano, Condon & Frank P.C. v. Superior Court, 17 Cal. 4th 119, as modified at 17 Cal 4th 643a, cert. denied, 119 S. Ct. 291 (1998), a New York law firm was held not entitled to recover part of its fees for services rendered to a California client because the firm had engaged in the unauthorized practice of law in California. In Birbower, a New York law firm advised a California client regarding California laws in connection with arbitration proceedings to be held in California without involving local California counsel. But see, El Gemayal v. Seaman, 72 N.Y.2d 701 (a Lebanese lawyer who rendered advice to a New York client only by telephone and never traveled to New York except to return some personal items and discuss fees was not engaged in the unauthorized practice, of law because his physical presence in NY was “incidental and innocuous”).
1. Always advisable to have written retainers. Non-refundable retainers generally unethical as unearned fees have to be reimbursed to client.
It is only in the context of a general retainer where the lawyer makes himself available that the client has already paid for legal services. Otherwise, if the fees are characterized as “unearned” they must be paid back.
Effective March 4, 2002, attorneys in New York shall provide to the client a written letter of engagement before commencing representation, or within a reasonable time thereafter (i) if otherwise impracticable or (ii) if the scope of services to be provided cannot be determined at the time of the commencement of representation. The letter of engagement shall explain the scope of the legal services to be provided and an explanation of attorney’s fees to be charged, expenses and billing practices; and, where applicable, shall provide that the client may have a right to arbitrate fee disputes. Instead of a written engagement, the attorney may also provide a client with a signed retainer agreement. The written engagement does not apply to 1) representation of a client where the fee to be charged is expected to be less than $3,000, 2) representation where an attorney’s services are of the same general kind as previously rendered to and paid for by the client, 3) representation in domestic relations matters subject to Part 1400 of the Joint Rules of the Appellate Division, or 4) representation where the attorney is admitted to practice in another jurisdiction and maintains no office in the State of New York, or where no material portion of the services are to be rendered in New York.
Client Files In Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn, 91 N.Y.2d 30 (1997), a client who has paid the legal bills is entitled to the lawyers entire file, including drafts, memos, research and other materials considered an attorney’s work product. Some documents such as those “intended for internal law office review and use” need not be turned over.
The rules provide that a lawyer must turn over to a client the client’s papers and documents that the “client is entitled to receive,” except when a lawyer asserts a retaining lien on the client’s property or file to assure payment of outstanding fees. However, not all states permit the assertion of retaining liens and those that do may frown upon the such retention when the client will be prejudiced as a result.
2. Lawyers’ fees must be reasonable. MRPC 1.5(a) sets forth eight factors.
3. A lawyer shall not not divide fees with another lawyer, unless client consents, the division is proportionate to services performed by each lawyer, or by writing given to the client, each lawyer assumes joint responsibility for the representation
4. Sharing fees with a non-lawyer prohibited. Lawyers may pay non-lawyers for services but cannot be a percentage of the fee.
2. DUAL REPRESENTATION IN EMPLOYMENT AND FAMILY-BASED IMMIGRATION PRACTICE - Michael Patrick
- a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
1) the lawyer reasonably believes the representation does not adversely affect the relationship with the other client; and
2) each client consents after consultation.
NYCPR DR 5-105(C)
- lawyer may represent multiple clients if a disinterested lawyer would believe that a lawyer can competently represent the interest of each and if each consents after full disclosure of the implications of the simultaneous representation and the advantages and risks involved.
What should an ethical lawyer disclose when undertaking to represent multiple clients?
Can the lawyer choose to represent only one client (the employer and not the employee or vice versa) knowing that the other client may not have representation?
In what circumstances can there still be secrets when undertaking dual representation?
What action should the lawyer take when there is an actual conflict?
There are a number of ways to handle a dual representation case before a conflict arises. The “Simple Solution” invokes only viewing the employer as the client and not the foreign national employee. The “Simple Solution” is untenable in the reverse - i.e. regarding only the foreign national as the client and not the unrepresented employer as most INS forms need to be signed by the employer. The better option is to lay out, in a retainer agreement, how potential conflicts will be handled. The best solution is for the employer and foreign national to have separate lawyers, but this may be impractical in the immigration context due to expenses and overlapping of services.
Below are ethical issues that immigration practitioners regularly confront:
Lawyer usually represents employer, but employee has revealed that she would like to leave as soon as she gets the green card.
Employee seeks general advice about portability option under AC21, and has never indicated to the lawyer that he is actually thinking of joining a new employer.
Employer wants to adopt conservative strategy (traditional labor certification) while employee wants to adopt more aggressive strategies such as an RIR plus an EB-1, etc.
Client tells lawyer who usually represents H-1B employees that he is “pissed off” with his employer for benching him and needs to know his rights under the LCA.
H-1B employee tells lawyer that he will pay for the H-1B fees and the employer may not reimburse him.
Husband and wife separate while adjustment is pending. USC husband does not want to cooperate anymore and wife wants to try every legal option of getting the green card.
Same scenario as above, but there was no conflict during the adjustment process and wife got her conditional green card. Two years later, wife needs to file an I-751 waiver and is not in contact with her husband. She approaches same lawyer who represented husband and wife earlier to file the waiver as a spouse who has been subject to physical cruelty or extreme mental cruelty.
Duty of lawyer toward sponsor on Affidavit of Support, especially a co-sponsor who is not the lawyer’s direct client
3. ETHICAL ISSUES WHEN PREPARING IMMIGRATION DOCUMENTS
1. CANDOR TOWARDS THE TRIBUNAL. MRPC3.3
A lawyer shall not knowingly:
1.make a false statement of material fact or law to a tribunal
2. fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client
3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel
4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures
CANDOR TOWARD THE TRIBUNAL
NOTE NYCPR DR 7-102 (B) distinction:
A lawyer who receives information clearly establishing that..
1.The client has, in the course of the representation, perpetrated a fraud upon a person or tribunal shall call upon the client to rectify same, and if the client refuses or is unable to do so, the lawyer shall reveal the fraud to the affected person or tribunal, except when the information is protected as a confidence or secret.
Common ethical issues that may arise:
Duty of a lawyer to investigate client’s factual statement on asylum application.
To what extent can a lawyer “prep” an otherwise credible witness to ensure that the witness testifies in accordance with asylum jurisprudence.
Lawyer comes to know of its falsity, after the asylum application has been filed but before hearing
Lawyer comes to know of applicant’s perjury during the hearing itself.
Lawyer learns about applicant’s false testimony after hearing is over and IJ granted asylum.
Lawyer has suspicions about the marriage, but cannot actually tell that the marriage is not bona fide.
Alien entered into the US as a visitor with full intent to get married. Lawyer’s duty to disclose affirmatively or not on adjustment application regarding alien’s misrepresentation of intention when entering as a visitor depends on the facts of each case. Note that entering the US to get married is not inconsistent with the B-2. At issue is whether the alien intended to apply for adjustment at the time of entry.
Same alien once filed a fraudulent SAW application in 1986 and got A number, but INA Section 210 (b)(6) mandates that SAW applications remain confidential.
Alien previously represented to an employer that she was a citizen. Adjustment application does not ask the question whether alien ever falsely stated that she was a citizen, which is a non-waivable ground of inadmissibility and deportability.
Even if alien had previously engaged in fraud or misrepresentation before INS official (as opposed to employer), can lawyer check off ‘no’ on the adjustment application if there is some legal basis to establish that it would not constitute “fraud or misrepresentation” for immigration purposes? Example is when the misrepresentation, in the lawyer’s opinion was either non-material or not willful
If Form I-129 does not ask for precise dates of prior H-1B employment, does lawyer need to disclose if H-1B employment terminated before new H-1B extension is filed? Note that AC21 does not require alien to be working when applying for portability benefit.
Although DOL frowns on alien owners filing labor certifications through the company, the ETA 750 does not require disclosure of employer’s ownership structure.
Attorney suggests to employer that job requirements get ratcheted upwards (e.g. from BS to MS) so that alien employee could take advantage of higher preference classification and that job would be more restrictive to US applicants.
RULES GOVERNING PRACTICE BEFORE THE IMMIGRATION COURT (EOIR) AND INS UNDER 8 C.F.R. § 3.102
A practitioner shall be sanctioned if he or she:
a) Charges or receives a fee that shall be deemed grossly excessive
b) Bribes or coerces any person to perform any act, or refrain from performing any act, in connection with the case
c) Knowingly or with reckless disregard makes a false statement of material fact or law, or willfully misleads, threatens, or deceives someone concerning any material and relevant matter relating to the case, including knowingly or with reckless disregard offering false evidence. If a practitioner has offered material evidence and comes to know of its falsity, the practitioner may take appropriate remedial measures
d) Solicits professional employment through in-person or live telephone contact, or through the use of runners….
e) Is subject to a final order of disbarment or suspension, or has resigned with an admission of misconduct
f) Knowingly or with reckless disregard makes a false or misleading communication about his or her qualifications or services…
g) Engages in contumelious or otherwise obnoxious conduct,……which would constitute contempt of court in a judicial proceeding
h) Has been found guilty of , or pleaded guilty or nolo contendere to, a serious crime….
i) Knowingly or with reckless disregard falsely certify a copy of a document as being a true and complete copy of the original
j) Engages in frivolous behavior in a proceeding before an Immigration Court, Board or any other administrative appellate body…
k) Engages in conduct that constitutes ineffective assistance of counsel, as previously determined by an IJ or BIA…, and a disciplinary complaint is filed within one year of the finding
l) Repeatedly fails to appear for scheduled hearings in a timely manner without good cause..
m) Assists any person, other than a practitioner…, in the performance of activity that constitutes the unauthorized practice of law
Below are some ethical issues to consider when practicing before the EOIR:
Adverse impact on a colleague in the bar vs. duty toward client when filing a bar complaint to establish ineffective assistance of counsel, Matter of Lozada, 19 I&N Dec. 637 (BIA 1988).
Lawyers duty of candor to the tribunal with respect to notifying court if any other family member is also filing an application through another Immigration Judge.
Aiding in the unauthorized practice of law through the use of travel agents; sharing of fees with non-lawyers.
Lawyers duty to adequately supervise the work of other lawyers and non-lawyers within the firm, including translators.
About The Author
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is a trustee of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-425-0555 or firstname.lastname@example.org.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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