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10 Legal Ethics Rules for New Immigration Lawyers

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10 Legal Ethics Rules for New Immigration Lawyers

Immigration attorneys often struggle with the demands of practicing in a highly complex area of law in which the stakes are extremely high for their clients. Many different agencies are involved, and attorneys must be fluent with the grounds of inadmissibility and removability, their related waivers, potential eligibility for benefits, potential penalties and forms of relief, and countless regulations, statutes, agency manuals, memoranda, and abstract legal concepts and principles that govern every aspect of immigration practice. In this context, attorneys must advocate for clients whose ability to live, work, remain with their families, or to avoid persecution or harm may lie in the hands of the attorney. 

Presenters

Matthew Blaisdell
Principal
Matthew Blaisdell, Esq.

Transcript

Matthew Blaisdell - Hello, and welcome to the Quimbee continuing legal education course: 10 Rules for New Immigration Lawyers. I, Matthew Blaisdell, would like to thank you for spending the next hour in which we'll likely cover more than just ten rules. And I'd also like to note that this is not just for new immigration attorneys, but the point is rather to help you become more familiar with the professional and ethical questions that many of us are most likely to encounter in this practice. In so doing, we'll identify the greatest ethical risks for new immigration lawyers, review the model rules that new immigration lawyers should study most closely, consider practices to minimize your risk, and understand the penalties and procedures that apply to violations within the very specific world of immigration practice, which as you may know, is an administrative field with its own rules, courts, agencies, and procedures.

We'll start out by looking at the world of immigration practice as it relates to professional conduct, cover 10 rules in some detail, discuss how to manage your risk, penalties and procedures, and provide a few more rules for you to keep in mind. There are four main agencies involved in immigration practice. The Department of Homeland Security covers every agency interaction within the borders of the United States. The Department of Justice provides us the administrative Immigration Courts, as well as the federal courts that review certain types of petitions and reviews of the Immigration Court decisions. The Department of State, which covers the consulates and the Department of Labor, in which you'll encounter primarily just in the employment based context, should you practice in that area Within DHS, the three main agencies are USCIS, ICE and CBP. USCIS, the lock box is where you'll send your mail.

The Regional Service Centers are what process the applications, the local field offices schedule interviews and make decisions on cases and the fraud detection and national security office engages in investigations primarily related to applications that are filed. ICE is the enforcement side, as opposed to USCIS, which is more of the benefit side. And within ICE there's the Enforcement and Removal office. Those are the guys who engage in investigations and arrests, primarily. The Office of the Principal Legal Advisor, which we'll often refer to as the Office of the Chief Counsel, they're the lawyers, they're the ones we engage with in Immigration Court. Homeland Security Investigations is the equivalent to FDNS in ICE. They cover offenses such as trafficking and fraud and other crimes that are not primarily related to applications that people file. And Customs and Border Protection. They are at the ports of entry all over the country.

So think like the borders, the airports, et cetera, and various sub offices. Within the Department of Justice, The US Immigration Court functions primarily as the trial court, whereas the Board of Immigration Appeals, the BIA reviews decisions of the US Immigration Court and the Federal District Court and the US Courts of Appeals review decisions of the US Immigration Court and the BIA. You may also end up practicing in district courts or the Courts of Appeals for certain types of actions that are filed directly with them, such as, for example, a writ of mandamus. Whereas the Department of State features different consulates in pretty much every country with different and procedures of their own. Sometimes regarding the same rules and regulations that USCIS covers, but often with their own spin on them as they have their own different policies. And there's the Department of Labor. So you'll see what we refer to as ETA and foreign labor certification process as relates to H-1B petitions, what we call PERM filings. Another esoterica that are specific to the employment based context. Won't go into that now because we're just providing a very broad overview. So you have some idea of the practice that you may be walking into.

As far as the essentials of practice, the things you really need to know to provide context to how ethics and the professional rules are understood in immigration, I like to prefer to the three Cs. These are consequences, complexity, and competence. You need to know what you don't know in order to competently practice and you to know the stakes to appreciate the extent of the effects that your conduct has on your clients and the potential liability that entails to you. And you need to understand the capacity or the competency of your clients to fully grasp your responsibilities for working within this population. Within what I call the essentials, there's the potential eligibility for benefits. So that's what you're trying to get your clients, whether they're family based cases, employment, skills based, humanitarian, or a removal, deportation defense. These are the things you are helping them get, some kind of status typically, or say employment or travel authorization or ability to enter the United States, et cetera. But in order to do that, you need to know what the grounds of inadmissibility and removability are. These are the things that prevent legal barriers that provide obstacles to people entering the United States. Or, for those who have entered, provide grounds to charge them with being removable or deportable. And each of these has their own set of waivers. These are like pardons, things that will help them overcome these legal obstacles. And there's the sources of law. These are what interpret the benefits and the grounds. So you start out with, of course, the statutes passed by Congress and the regulations as drafted and interpreted by the agencies we've discussed above that oversee this practice. And aside from the regulations, it breaks down from there into different agency manuals and memoranda that will set the policies for how they'll interpret the regulations. And of course, court precedent and legal principles, which interpret all of these. And sometimes they're often in conflict and they're always changing. So hopefully that will give you an idea of the complexity of the practice in which you're engaging. In terms of consequences for your clients, we're talking about the ability to live in the United States to work, to travel in and out, to remain here and reunite with family, to protect them from persecution or harm in their home countries and or protect them from unsafe conditions overseas. The stakes could hardly be higher, let's put it that way. And in terms of competency, your clients may be dealing with issues related to language, education, age, trauma, familiarity with US culture or the legal system, and their ability to navigate very complex immigration laws and procedures.

Now this isn't to say that all clients have competency issues. We also do cases for innovators, entrepreneurs, scientists, those at the top of their profession in business, arts, sports, et cetera. But many of them will still struggle to understand this very complex system. That is why they're hiring you. You need to evaluate each of your clients' needs and goals to understand what it will take to effectively communicate with each of them and develop a strategy around this from the outset. Knowing all of that, you can start to understand your risk in this practice. The demands on attorneys are high. The laws, policies and procedures are in constant flux, affecting legal strategies and require constant monitoring.

So you need to stay competent in this ever changing area of practice. Clients can be especially vulnerable due to the complexity and competency. So you need to stay on top of your communication and have a strategy for effectively doing so. Often they're in desperate situations due to circumstances, particularly in times of high enforcement. And you need to understand how to properly advise them in that scenario. And in this context, often small firms and solo practitioners struggle to manage practices and comply with the ethical rules given the high level of complexity in this field. The laws are abstract, but the penalties are not. So waving your hands and saying, immigration is complicated, no one knows anything about this, the clients are confused, I didn't do anything that bad, this does sometimes work as a defense, but it's very risky to hang your hat on this line. We do get busted from time to time. We're subject to a lot of rules, and there's a lot of eyes watching us at the state, federal and administrative levels. There are state disciplinary bodies, federal regulations, and the Department of Homeland Security and Department of Justice each have their Office of the General Counsel, which now is referred to as attorney discipline. They can provide sanctions, which are private, which may involve suspension or disbarment, your subject to malpractice and tort liability and criminal prosecution, as are all attorneys. And sometimes immigration attorneys have been charged with criminal offenses, such as engaging in visa fraud, mail fraud, visa fraud being a predicate for RICO as well. So it can get quite serious, quite quickly. That said, if you make a good faith attempt to comply with the rules we're discussing, as I'm sure 99.99% of you will, it's not going to get to that point.

So today to give you that level of protection, we're gonna cover the classics. If you talk to any disciplinary authority, these are the rules that they see the most and it isn't anything terribly novel. Standard lawyer mistakes and misconduct just in the immigration setting. So those would be things like failure to timely file. There's a lot of deadlines in this practice in each specific sub area of practice. Failure to timely return calls, explain processes, provide accurate and timely case status information, such as the progress of the case, giving your clients notice of the deadlines and opportunity to respond to inquiries from the government. The burden of complexity in this practice also places a burden of responsibility in you in terms of communicating effectively with your clients. Attorneys in this practice are also accused of frequently of over promising, failure to follow the client's instructions. And simply just being incompetent, being over their head in this new difficult area of practice, and making mistakes, which may, for example, subject their clients to new grounds of inadmissibility, removability or other immigration penalties that they might not have been subject to before the misconduct.

Conflict of interest also comes up. A typical immigration case involves a sponsor and a beneficiary, whether that's a family member, or an employer, and the dynamics between sponsor and beneficiary or between family members in general, is often shifting. And this can be problematic. The good news is that disciplinary authorities know the level of complexity in this practice, and they understand that many of us are often making a good faith attempt to comply. And often, sometimes just take on too many clients, trying to help people. What they're looking for is typically bad actors and repeat violators. They'll look at the date of admissions, priors, and attempts to mitigate the misconduct. And it's worth noting that in my experience, most complaints are against the more experienced attorneys. So they give you the benefit of the doubt often. They're not looking for people who are just trying to learn and really making a good attempt to figure it out. In which case we often will make mistakes along the way. They're looking at the generally bad actors. Innocent mistakes are generally forgiven. You might get advisement, but often not a discipline that goes on your record if they know that you're trying, and that you're learning from your mistakes.

One way to prevent yourself from falling into that trap or from learning from your mistakes, is to take advantage of the many resources and the strong atmosphere of collaboration in this practice. So take some classes, join the American Immigration Lawyers Association. There's lots of practice groups, lots of message boards, et cetera. In this area we're all generally on the same side and people you'll find your colleagues will be quite helpful in most circumstances.

 

Getting into the specific rules. The federal regulations actually lay out a bunch of immigration specific ethical and professional rules at 8 CFR 1003.102. I like to think of these as somewhat akin to the 10 Commandments. There's more than 10 of them, but what's unique about them is they often are action based and give you a good idea of the specific actions that general counsel is looking at.


So starting with competence, you'll see at 8 CFR 1003.102 sub O, the definition really tracks the model rules pretty closely. So nothing terribly new there. What we're gonna look at here is how it applies specifically to immigration and specifically a decision called Matter of Lozada. Its a decision by the Board of Immigration Appeals governing ineffective assistance of counsel claims. And if you're in this practice, you're very familiar with Matter of Lozada. It's a 35 year old decision, which is constantly evolving and debated, and it comes up all the time because it's often in the context of a disciplinary complaint filed by successor counsel. There are a lot of resources, articles, courses, conferences on Lozada. This is a very immigration specific thing. Substantively, Matter of Lozada requires a finding of ineffective assistance of counsel that caused the client to be prejudiced in their case.

Procedurally, it requires three actions, an affidavit from the client detailing the agreement between counsel and the client about the representation. It requires notice being given to counsel that they're informed of the allegations of him or her, and given an opportunity to respond. And a motion to reopen. This is the whole point of Lozada. It provides the immigrant a chance to reopen a deportation order if their attorney was found to be deficient. They can file a motion that gets around a lot of the time bars. So you're provided equitable tolling of the deadlines to reopen your case if you can demonstrate that there was extraordinary circumstance, in this case, the ineffective assistance, that caused you or the client from meeting that deadline. So the motion must reflect whether a complaint has been filed with the appropriate disciplinary authorities, with respect to any violation of counsel's ethical or legal responsibilities. And if not, why not?

So basically, the immigrant completes an affidavit, informs their prior counsel that they intend to file a complaint against them. And they must actually file the complaint. And once they've done that, they can file a motion to reopen their removal or deportation order. So, hence, this comes up often in the case of successor counsel, seeing an immigrant's file, maybe identifying ineffective assistance, and then filing this Lozada motion to help their new client reopen their deportation case. So you can imagine this kind of thing might come up a lot. The general point I want to add is that there's always a good chance that someone will be reviewing your work in this field. It's good to just assume that and bake that point of view into your work. What will this file look like to another attorney?

That's the main point about Lozada, but more detail would require a separate course. So we'll leave that note for now and discuss competence in a little bit more detail. Separate and distinct from Lozada is the general requirement that attorneys remain competent. But there is some significant overlap when we're talking about ineffective assistance. Did you engage in conduct so deficient that it constitutes an effective assistance and was your client prejudiced? What constitutes those standards is subject again for separate training. But in terms of violations of the model rules, a finding of incompetent representation is usually coupled with some other violation. So you're not as likely to just get hit with a complaint citing competence. It's usually in combination with say communication, misconduct, diligence. Say failing to mitigate the effect of your incompetence. Or fees. Say you did a bad job. You didn't know what you were doing and you still failed to return unearned fees. And wrapping up this first rule, just understand that risks flow from repeated acts. One or two mistakes no one's gonna look at too harshly, but if this becomes a pattern in practice, you may be subjecting yourself to liability. If you're not sufficiently experienced, consider referring a case to someone else. Don't tell a client that they're not eligible for anything, unless you know everything, cuz otherwise how would you know that? And don't file a case for someone unless you're certain that they might be eligible.

To increase your competency consider again, joining the American Immigration Lawyers Association, perhaps co-counseling and or referring cases to more experienced colleagues from whom you can learn, consider pro bono volunteering and or committee work, working part-time for attorneys practicing in areas that you seek to gain competence in. And just as a general rule, proceed slowly and cautiously given the high complexity and high consequences. Next we're gonna talk about scope of representation. What is it that you're signing yourself up for? This comes up perhaps a surprising amount and may be the source of most complaints. Why this is important as immigration is because many of these cases involve multiple agencies and courts that we covered briefly. And many of these agencies are involved in processing applications involved in various immigration processes. They might start and stop in ways that you can't anticipate from the outset. Best practice is to agree, a clear agreement on objectives. Put it in writing that they clearly understand. Cases can take many years and unfold over many stages. Sometimes they'll flip from family based, to employment based, to Immigration Court, and or the asylum office, or a case might start with the Department of State, but might require a waiver that requires going back to USCIS. And you might not know all of this from the outset.

So you have to be very careful in drafting your agreement because the clients might have the idea that you're there until the very end until they reach their ultimate objective. Whereas when you set the agreement initially, you know, your time and fees may have anticipated something of a much smaller scope. And remember that this client is the one who establishes the objectives. You are the one who controls the means to pursue those objectives. So consider being very specific about limited representation. A representative should maintain a caseload that allows for a competent quality representation. You have the obligation to ensure that you have sufficient time, knowledge, available resources and skills to do a case. And that means you cannot let your caseload get out of control. You won't be able to give each case the amount of attention that they require in that case. So look at ABA model rule 1.2C. You are able to limit scope if reasonable and under circumstances and give the client informed consent. So you can tell them I'm not gonna go from, you know, zero to 10, but I might go from zero to five and make sure that they understand that from the outset. Provide clear notice of what aspects of the immigration case you'll be handling and whether the representation will include any appeals, extra waivers, extra appearances at USCIS, or Immigration Court, et cetera. And just to give you an understanding of the breadth of issues that fall under scope, forms of representation, there's affirmative application.

So think asylum adjustment of status, applications for Green Card, et cetera. Many, many, many different types of applications in this practice. You might be making appearances with USCIS or at the Immigration Court, or perhaps with Customs and Border Protection, or at an ICE detention facility. You may be applying for bond. You may be representing someone in removal proceedings. There are pre-hearing motions and briefings, applications for relief within removal proceedings. There are preliminary what we call master hearings. There are final merits or individual hearings. There are appeals. And a case might involve some, all of these, maybe just one. It might appear to involve just one or two, but as the case unfolds, it may involve many of these different forms of representation. So please keep that in mind when drafting your agreements. Don't say, you know, all immigration representation in obtaining a Green Card, for example, cuz you have no idea what that might entail. A separate issue is the limits on the advice that you can provide. You cannot engage clients to, you cannot advise clients to engage in unlawful conduct. Look at model rule 1.2 D, which prohibits knowingly counseling or assisting a client to commit a crime or fraud. Though it does, here is your safe harbor, allow you to discuss the legal consequences of any proposed course of conduct with a client present, including both adverse consequences and potential benefits.

So this is something that isn't apparent to many people outside of the practice or many new immigration practitioners. What do I do if someone's out of status? How do I advise them? Say they've got a removal or deportation order and have basically been absconding in the United States and not complying by leaving the country. They may have question- or maybe they have questionable intent regarding their applications. You can't tell maybe, maybe you've got doubts regarding their eligibility regarding an application that they insist on filing. Remember that safe harbor, that you can advise on the adverse consequences and potential benefits. And remember, that they choose the objectives and you choose the means to pursue those objectives. However, be aware of model rule 3.3 and 4.1. Candor to the tribunal and truthfulness to others. We'll discuss those in a little bit.

But building off that point, we're looking at this slide here, client lawyer relationship rule 1.2. Again, scroll down to the bottom at D. A lawyer shall not counsel a client to engage or assist a client in conduct that you know to be criminal or fraudulent. So how are these terms defined? Looking at the next slide, they define knowledge, they define fraud. These terms are defined within the model rules. Look at the definitional section. That's knowledge is 1.O sub F, fraud is 1.O sub D. No need to cover that in great detail right now. But this relates back to the idea of informed consent, which which we'll elaborate on in a little bit. Again, client determines the objectives and you the means. And 1.D will provide you that safe harbor. You can always advise as to consequences and benefits of doing a thing or not doing a thing. Remember, you are not ICE. Your job is just to give them the information so they can make decisions. And keep in mind, immigration provides many ways to repair status. And in fact, the law anticipates that many people will be in violation and it gives them pathways to get themselves out of violating the law. You simply cannot advise people to violate the law, but you can advise them if they are in violation. When the policy gets risky or it feels bad or awkward or ambiguous, read the rule and know these terms. What is knowledge? What is fraud? And remember, you have some safe harbor in rule 1.2 D.

Moving on to diligence. This is a big one. Neglect is a very big complaint in the field of immigration. Attorneys very often are found to have not followed through on appeals, gotten their briefs filed timely. It's a very easy way to be admonished because it's a very clear violation. Either you met a deadline or you did not. Often attorneys will fail to adequately prepare their clients for hearings and interviews. They didn't submit sufficient documentation. But really what this often boils down to are faults of practice management. Again in a very difficult area of practice, it is incumbent on you to have the techniques and procedures available to help you manage this. This is huge in immigration. Immigration attorneys spend a lot of time, talking about technology, talking to each other about software and techniques to improve efficiency because it's increasingly complicated. So involving yourself in these conversations will really help you reduce your liability, particularly as it relates to diligence. Know what's going on in practice management and technology and just jump into it. And remember, you also have requirement and the rules to be competent. And that increasingly, that includes technological competence. You are going to be expected to understand how to take advantage of existing technologies: email, calendar and case management systems, et cetera. If you don't have these things in place, you're creating greater risk for yourself.

To that point, let's go back to the federal rules, 8 CFR 1003.102, subsection Q, you must keep up to date on change is in the law. Statutory and regulatory changes, agency guidance, policy shifts on part of the applicable agencies and where relevant, international law. You also have a duty to inform the client of available defenses forms of relief, and you should take special care to inform clients who are not currently in removal proceedings of the consequences of pursuing certain applications and petitions for benefits. Because if the application is denied, they might find themselves at the risk of removal or other adverse consequences. So remember again, complexity, consequences and competency.

Looking at the model rule 1.3 diligence, under the underlying area here, a lawyer should take whatever lawful or ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication and with zeal and advocacy upon the client's behalf. A lawyer is not bound, however, to press for every advantage that might be realized. So this is really the closest mention of zealousness in the rules. There is no rule that attorney must be zealous. You might be forgiven for watching Law and Order for thinking that there are requirements that attorneys be zealous in their advocacy. There is not, but you will find that term here in diligence and in the preamble to the model rules. So zealousness is not a requirement. However, you do have requirements to be an officer of the court, as well as an advocate for your client. So those rules are sometimes in conflict. These conflicts can be mitigated through other rules.

So as we mentioned, rule 1.2 D and also as we'll get to 4.1 truthfulness and 3.3 candor. These address more your role as officer of the court, your responsibility to the system, which prevents you from going overboard in your zealous advocacy. So these conflicts are often resolved by the model rules, your state rules of professional conduct, the code of federal regulations, ethics opinions, case law, just about every situation you can imagine in which the rules seem to conflict with each other and you find yourself in some gray territory has probably been covered. So, do your due diligence.

And on that note, we'll move from diligence to rule 4.1, which I've highlighted a few times already: communications, excuse me, 1.4, rule 1.4 A2, a lawyer shall reasonably consult with a client about the means by which the client's objectives are to be accomplished. So this is where we're talking again about informed consent. A lawyer shall explain the matter to the extent reasonably necessary, to permit the client to make informed decisions regarding the representation.

 

Leading up to 1.OE informed consent, which is 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 their proposed course of conduct. My advice: put it in writing, whether it's a memo or an email, whatever it is. But remember, you are not the one who has to make the decisions about the objectives. You give them the information and empower them to make the decisions. You don't have to bear all of the risk all of the time. When is this rule most often violated? It's typically when attorneys represent to clients the benefits involved without fully explaining any and all of the following, such as the legal strategy, that's going to be involved, whether the benefits will be sought via some underlying application for something else.


For example, sometimes people will apply for asylum, but their ultimate goal is to get something called cancellation of removal, not telling the client that they're actually going to be applying for asylum as part of that process. Sometimes attorneys fail to explain the elements required for the underlying applications. For example, what does it mean to be eligible for asylum? The relative merits or strengths of such claims. Such as, do you have a good argument for asylum? Or the risks involved in such applications? For example, if your asylum application is denied, you will be sent to Immigration Court for a removal or deportation proceeding. Again, that goes to the consequences of submitting a frivolous application or petition. Previewing rule 3.1 and 8.4, meritorious claims and contentions and misconduct. Your safe harbor here, the client must review, understand and vouch for the information contained in the applications. And they need to basically know what you're doing. The next two slides cover special considerations.

But what I'd like to do is skip to the bottom of the slide, where we discuss the duty to the client, which is created when an attorney/client relationship is formed, which may be implied by actions taken on the client's behalf or by their reasonable reliance. This depends on what a reasonable client would think. No express contract is required. So be clear about when you are entering into a legal relationship with the client and what the parameters of that relationship are, harking back to scope. The next three slides, flesh this out in some detail, but we've already summarized that material.

So let's move to transactions with persons other than clients, rule 4.1 truthfulness and statements to others. Remember that the consequences, complexity and competency of your clients will push you into situations where your client may be making a representation that you're unsure about or suspect of, again, whether they're applying for asylum, whether this relates to their employment history, the actual facts of the relationship with their spouse, et cetera. Keep in mind under rule 4.1, in the course of representing a client, you shall not knowingly make a false statement of material fact or law to a third person or fail to disclose a material fact to the third person when disclosures necessary to avoid assisting a criminal or fraudulent act by a client, unless that's prohibited by rule 1.6 regarding confidentiality.

In a few minutes when we talk about rule 3.3, candor to the court, we'll talk about how to balance these different considerations, confidentiality, duty to your client, versus your duty to the court and others to be truthful.

 

Moving on now to one of our favorite topics: fees. The code of federal regulations follows the standard rules. So if you look at the model rule, you're not gonna see much deviation here in terms of how they defined what might be grossly excessive fees and how to determine the reasonableness of a fee. Skipping to the next slide, we'll talk about how to spot a fake or bad non for profit. One of the methods of doing so is the extent to which if at all, they're charging fees. There are non-attorneys who can provide legal immigration services. These are known as accredited representatives that work for organizations that have been recognized by the board of immigration appeals, under what is now known as OLAP.


The accredited representatives generally cannot accept any fee or compensation for any person, though they can in some circumstances, if they're considered to be what nominal, which is a very, very small amount. But rather than spending much time dwelling on that, let's move to the issues regarding fees that are of most concern to you. Those would be fee disputes, again, issues relating to scope, perhaps conflict of interest, you know, whose money is it, and declining or terminating representation. So when do you have to refund the fees? When can you still collect from clients who haven't paid you after the case has ended? Again, in terms of finding how much is reasonable, take a look at model rule 1.5 A, or as we discussed two slides ago, 8 CFR 1003.102 A. Fee sharing is often an issue that comes up when attorneys who are expanding their competence in immigration or expanding their resources by partnering with attorneys outside of the firm. This is something I highlighted earlier as a good idea if you're trying to increase your competence in a particular area.

Look at rule 1.5 E again, confirm this arrangement in writing and make sure that you have consent of your client. What is consent? Again look at rule 1.0 B. Attorneys in immigration typically charge flat fees or fees according to case milestones, given the number of agencies, stages and years that a case may take, again, thinking about scope. You know, we typically say, if the case goes this way, fees will be X. If it goes this way, it'll be Y. If we also do this, it will be Z. So factor that into your written agreements and billing practices and read that in conjunction with rule 1.15 regarding safekeeping of property. So your trust accounts, your IOLA, lots of attorneys use these for instance, from paying government fees. Fees that do not belong to you, but which you are handling on behalf of your client. And remember, you cannot share your fees with the non-lawyers except in very limited circumstances. And this, the point of this rule is to prevent non-lawyer interference with exercise of your professional judgment and also to ensure that your fees are not too high.

I just mentioned that one area in which an issue with fees comes up is conflicts of interest. Most cases, again, involve a petitioner and a beneficiary, or you can think of it as the US sponsor and the immigrant. And you should assume that you'll likely have an attorney/client relationship with both parties, unless one of them has another lawyer. This is permissible, unless there is an unreconcilable conflict. So this happens often in employment based context, issues between the employer and employee. Maybe the employee wants to change the job. Maybe the employer no longer wants to retain them or go through the entire part of the process. Obviously conflicts can involve, can come into play between spouses, those serving as a financial sponsor in a family based case, for example. And in order to continue to represent both of them, if a conflict arises, you really need to get a written consent to which both parties much knowingly waive your duty of confidentiality and loyalty. The key to all of this is to prevent you from impairing your ability to effectively represent both clients. You don't have to withdraw, but you must consult with both clients to determine whether their conflict must prevent you from continuing.

Some scenarios do require it, but you should always try to resolve it when it arises. You should assume that someone is your client if you are acting on their behalf. So whether or not, you know, there's been a signed retainer agreement or, you know, traditional offer and acceptance of your services, don't think of it as you know, someone's kind of a client, but kind of not. To be safe, assume you're subject to attorney/client obligations. If you gave advice to someone or accepted confidential information and a reasonable person might rely on that and believe you are acting in their interest, you owe them the full range of duties. The next two slides are here to give you an example of situations in which this might arise. In the interest of time we're gonna skip over this, but I do certainly advise you to take a look at this if you're at all concerned about situations in which you might find yourself in a potential conflict. Just know that an attorney conflict relationship may unknowingly be formed if someone can reasonably believe that you're acting on their interest. We're now gonna look into issues relating to declining or terminating representation. This usually comes up as an added charge related to competence, diligence, conflicts of interest and candor.

So again, think of competence. You might be in over your head, in which case it may be time for you to terminate representation. Or you might be hitting the agreed upon limit in terms of scope of conduct. Maybe the client isn't aware of that, or doesn't agree. And there's some dispute as to whether or not you've completed your representation. As discussed in the last rule, you may be conflicted out of a case. Or, as relates to candor, you can't further their misrepresentation to the tribunal under the model rules. The code of federal regulations addresses this in 1003.102 Q3, which requires attorneys to conclude all matters undertaken within the scope, unless the client terminates, or permission to withdraw is obtained from the client. Can't stress this enough, hang three stars next to this next bullet. If you are in Immigration Court or if you're in the Executive Office of Immigration Review, at the trial level Immigration Court or the appellate level of the Board of Immigration Appeals, read their manuals. The Immigration Court has their manual. The BIA has their manual and they lay out the procedures. You should be familiar with this before you actually enter into representation, because you might wanna know what it's going to take to get you out of a case should you find yourself in that situation. And in the courts, it's probably a lot more difficult than you might imagine if you haven't been through this process before. Regarding Homeland Security, think USCIS, it's unclear what the procedures are, but you can check out HCFR 292.4 for an idea. But generally follow the guidelines in these practice manuals I highlighted from the courts to give you an idea, the best practice to really kind of cover yourself in this circumstance.

So on the next slide, you'll see that last bullet there, the E-28, that is the form that you sign with the immigration and submit to the Immigration Court to make you the attorney of record for a particular individual. Once you sign this thing and submit it, you are on the hook for the whole case. And the judge will exercise discretion on whether to let you withdraw from the case. And it's quite often the instance, they will not let you withdraw. If the client hasn't paid you, if you're having issues with a client, they're not communicating, participating fully to the extent that you would like, that alone might not be enough for the judge to release you from the case. And if they don't release you, you are still subject to all of the model rules. So if you're practicing the Immigration Courts again, plan for this. Keep written notes of the, to record your attempts to communicate with a client, to document specific instances in which the client is not responding, or if there's an unreconcilable conflict. If you do seek to withdraw, make sure to provide your client with lots of advanced notice. Provide summaries of their case, what's taken place, where they're at, what they're looking at going forward, and everything they need to know. And ideally, provide them some referral information perhaps to nonprofits that provide free representation or to other individuals that they can turn to, for help in picking up their case. And again, as you'll see in the next slide, the immigration judge can grant withdrawal without client consent if it can be accomplished without material prejudice to the client, but do not rely on this.

Now, we are going to turn to model rule 3.3. I've highlighted this a few times already, candor before the tribunal. This refers to your role as officer to the court, your responsibilities to the court system, over those of your client. So why is this important in immigration? There are circumstances in which you may have suspicion about the merits of the case you're representing. For example, about the validity of a marriage, documents or facts arising in foreign countries, if this is a case regarding persecution or hardship in their home country and many others. So take a look again at the applicable rules and read in conjunction with some of these rules we've discussed. Such as scope. Remember rule 1.2 D, your safe harbor. Confidentiality. What can you tell the court, if you need to disclose false information? And again, truthfulness and statements to others. And the rule we recently discussed, 1.16.

At what point do you have to withdraw from a case if your client insists on proceeding with false or untruthful information? However, the first thing we have to figure out is when does this rule apply? The rule is candor before the tribunal. So it only applies if we're before a tribunal. What is that? Well, it's a court, but more specifically it's an arbitrator and a binding process regarding a legislative body. It could be an administrative agency or some basically body acting in an adjudicative capacity, which is, when a neutral official, after the presentation of evidence or argument by a party renders a binding legal judgment, directly affecting that party's interest in a particular matter. The general rule is if you're not in front of a tribunal, rule 1.6, confidentiality wins. In which case you do not disclose the information. If you are before a tribunal, your loadstar is going to be candor. You must correct the bad information in certain circumstances. And if your client insists on moving forward, you may need to withdraw.

How this shakes out in practice is very fact and context dependent, and may in fact depend on which jurisdiction in which you're practicing, because some of them jurisdiction will promote confidentiality over candor. Some may take the opposite approach. So again, you need to know not just the model rules or the code of federal regulations. You also need to know the law of the jurisdiction in which you are practicing. Rather than going down the rabbit on this topic, however, let's just note it and move on to meritorious claims and contentions. I will just say, if you have more questions about candor we will return to it in a second, but there are many materials available such as any immigration, American Immigration Lawyers Association Ethics Compendium. We address this in great detail. But before we get there, we're gonna take a little side trip into rule 3.1, meritorious claims and contentions. So remember, we talked about competency, complexity and consequences. Consequences meaning you have clients who are often in desperate situations and might be as being desperate, advancing information, which you have suspicions about.

So here, we're balancing rule 3.1 and 3.3, because they're inextricably tied in many cases. Rule 3.1 tells us that a lawyer shall not bring or defend a proceeding or assert or controvert an issue therein, unless there is a basis in law and fact for doing so, that is not frivolous and which includes a good faith argument for extension, modification or reversal of existent law. So again, I highlighted the important phrases there. There must be a basis in law and fact for the thing you're setting forth, the argument. And there's gotta be a good faith argument. If not, if there is no strong basis in law and fact, you have to at least have a good faith argument for extending the law. You know, broadening the relief. You should also be aware if you are practicing in the area of asylum that have an additional definition of frivolous, in the code of federal regulations, 1208.20, which has very serious effects. Attorneys must be aware that filing an application that's found as frivolous under this rule without any basis in law and fact, may invite bigger problems. So we're not going to discuss in detail what the asylum specific definition is. The short version is that it's false information, an outright fraud or misrepresentation versus the model rule definition, which is basically something that does not have a basis in law or fact. So there are two definitions of frivolous in the asylum specific context, but you're subject to both, your subject to both the CFR version, the more narrow one with the more serious consequences. But you're also subject to the everyday, model rule 3.1 definition of frivolous. That said, as with all of these rules, we need to read them in conjunction with each other. So comment one to model rule 3.1, a lawyer must also act with commitment and dedication to the interest of the clients and with zeal and advocacy upon the client's behalf.

I misspoke this rule, 1.3, diligence. But again noting the limitations with scope. 1.2 D, not advise someone to engage in unlawful conduct. 3.1, don't be frivolous. 3.3, candor you must be honest before a tribunal. 4.1, you must be honest in your communications to third parties. And 8.4 C, you can't engage in conduct that's prejudicial to the administration of justice. So you must be diligent and engage in zealous advocacy upon your client's behalf, within the limits imposed by all of these other rules. Whereas your safe harbor here, again, rule 1.4, explain the consequences of submitting a frivolous filing. You can't go wrong ever by over communicating potential risks and benefits of every proposed action to your client. That's your safe harbor in almost every single one of these scenarios we're gonna discuss today. The next two slides will help you walk through this analysis a little bit if you find yourself in this situation. But again, just noting that right now, for the interest of time, we're going to look at the unauthorized practice of law in multi-jurisdictional practice. These issues can arise when duties are delegated to non-lawyer staff or supervision without adequate supervision. Legal services are offered or referrals are accepted from businesses whose non-lawyer employees provide legal services. Or if you find yourself perhaps working with someone has been disbarred, suspended, or an out-of-state lawyer who can't practice in certain areas.

Now, again, immigration is a federal practice. So you can practice from wherever you are in any state, as long as you're practicing in the field of immigration. But it does sometimes overlap with other areas such as criminal law, family law, et cetera. Only attorneys and representatives accredited by the Department of Justice, referenced them earlier in the fees section, may provide legal services, which include any advice on a matter involving one's legal rights. So the practice of immigration law as defined in the regulations concludes the selection and preparation of forms. And basically answering how to answer questions on the forms and what options somebody might have. So, again, this comes up in your terms of liability if you have non-lawyer staff who are telling people what forms they should fill out and how to answer questions on the forms. You need to be very careful whether they're engaging in the practice of law. Specifically, if they might be like some independent paralegal who you're working in association with. Everyone who's giving advice on a case in which you are the lawyer, telling someone what their status is, what their options are, what forms to fill out and how to fill them out. Keep in mind, this is the practice of law and should be performed under the direct supervision of a lawyer. The next three to four slides, discuss this in quite a bit of detail. But what I'd like to focus on right now is the next section. So from now, we're going to turn to the rules themselves to give you some ideas on how to manage your risk.

So we're moving on to the slide that says, section three, managing your risk, common areas of trouble. Let's start to summarize what we've discussed here. You can get in trouble if you're carrying excessive caseloads. If you find yourself subject to a Matter of Lozada claim, ineffective assistance in which a client was prejudiced and ended up with a deportation order. This can also fall on criminal defense lawyers. So this covers lawyers who are not immigration attorneys, but who fail to give adequate advice about the potential immigration consequences of a pleading. There is US Supreme Court law on this very particular issue. As an immigration attorney, you need to have confidence with technology to think specifically about not just managing your caseload, but also in terms of maintaining confidentiality regarding your client's information. You need to be on the watch for poor communication, particularly with interpreters and intermediaries. And think about the topic of unbundling. The court may not let you off the hook to advise client of other problems. And they may not let you off the hook if you fail to advise your client of the need to consult with others.

So at the beginning, we talked about some of the classic areas that apply not just to immigration lawyers, but lawyers in general, but here are a few specific instances that immigration lawyers might find themselves in that are unique to our area of practice. What are a few specific steps you can take to lower your liability? So say diligence and competency. A couple things you can do is try to obtain your client's file from the Office of Chief Counsel or through a Freedom of Information Act request. So if you have a client with a history of interacting with the Immigration Court, you can request that file from the Executive Office for Immigration Review or possibly through the ICE lawyers. You can also obtain their USCIS A-File through a FOIA request. You can file a FOIA request to get the records from Customs and Border Protection, from the Department of State, through a variety of circumstances, FBI, lots of different ways to get your clients' records, to see the entire record of their interacting with any type of enforcement actor. You should be sure to review any records of prior proceedings by making request to the Immigration Court. So you can actually contact the Immigration Court directly and request to see their paper file, what they call the record of proceedings. And it's always your duty to thoroughly research the applicable law, of course, including legal precedent, statutory and regulatory provisions. Aside from being diligent to increase your competency, again, consider joining AILA, co-counseling, referring cases to more experienced colleagues, volunteering, engaging in part-time work. And just generally please proceed slowly and cautiously given the complexity and the high consequences.

A few more quick tips regarding scope. Be sure to sign the G 28. That's the notice of entry for attorney before Department of Homeland Security upon commencing a case. And indicate the specific nature of your representation. You do have some ability to limit your representation on these forms. So if you don't want to find yourself on the hook for an entire case, this is one place where you can protect yourself from that at the very outset. Regarding supervision, make staff aware that the attorney/client privilege extends to them and that staff under rule 5.3, you must ensure that your office complies with the model rules. Or rather, that your staff ensures that your office complies with the rules. It is not always enough to say, well, I'm not the one who screwed up, it was my legal assistant. Your legal assistant needs to be made aware of the standards that they must uphold to as part of your office.

For issues related to termination and withdrawal, again, look at the Immigration Court or BIA practice manual. Look at rule 1.16 and incorporate this into your practice at the front end. Please know what it takes to get out of a case before you find yourself on the hook for the entire case. And some communication basics. So the same considerations that may apply with clients of diminished capacity, due to issues related to language and unfamiliarity with US culture and the legal system, you should apply to your own clients. Don't assume they know what you're talking about. You must communicate so that they can make decisions regarding the scope and objectives regarding both of these points. You can never hurt yourself by putting it in writing. Don't assume they understand, even if they appear to and please specify all relevant deadlines. This comes up all the time, and you can protect yourself by having put that, all of these deadlines in writing, providing a copy to your client and maintaining a copy of that communication in your own file. The next six slides provide a lot of very specific examples of other tips and tricks for keeping your liability at a manageable level. But for the interest of time, we're gonna skip now to section four, penalties and procedures. What happens if you are charged?

So again, as noted at the outset attorneys practicing in immigration subject themselves to regulation of their behavior by Department of Justice and Homeland Security, in addition to State and Court Bar Associations and state laws. So again, a lot of eyes looking at your conduct. So the next few slides will take you through these processes in much more detail. But for now, I just want to note them and leave them there for you to investigate should you have more questions on that particular topic. In addition to a few more rules, such as rule 4.- excuse me, 5.3, responsibilities regarding non-lawyer assistance, I do advise you to look at that slide because just know that's not enough to review the rules with your non-lawyer staff. There's a few examples there where this might come into play. They don't often charge this rule as a violation, but this might frequently be a source of problems in your office that might lead to complaints that might themselves lead to an investigation in which they charge you with different offenses. So, this is still a very valuable rule to know, how to supervise your non-lawyer staff. And misconduct 8.4, does get charged in the immigration context, particularly conduct that is prejudicial to the administration of justice.

So we covered some related rules, 3.1 frivolous filings. There are some criminal statutes related to misconduct. So you can find yourself in some rather serious trouble if you let yourself go too far. And filing frivolous or outright false applications is a way to find yourself in the deep end if you are engaging in a pattern of practice of doing so. And rule 8.4 is frequently brought in relation to this charge as well.

With that said, I'll direct you now to the last slide regarding sources and resources. We talked about the code of federal regulations and cannot promote this enough, the American Immigration Lawyers Association Ethics Compendium, modern legal ethics for immigration lawyers. It's a huge and free resource with an AILA membership. Not trying to be an AILA shill but quite honestly, it, I myself have found it very hard to practice competently and ethically without these types of resources behind us, again, given the high levels of complexity and the high stakes involved in this area. You can also just as you know, Google laws, State Bar ethics opinions, State Bar ethics counsel, know your own jurisdiction's rules. Again, the CFR rules are up there. So, it's out there in the ether. These will give you some guide as to where to find the applicable rules and opinions in order to resolve these questions. And hopefully, these slides will help you in this regard address the professional and ethical issues that you will come up against most commonly in the immigration practice. I hope this has been helpful. Thank you for joining us today, and thank you for using Quimbee to continue your legal education.

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