If you don’t know these rules exist, it’s of course hard to make sure you comply with them. So, awareness is a good first step.
I mmigration lawyers should be aware that, in addition to state rules that are based upon the ABA rules taught in law schools, there are federal rules governing the professional conduct of lawyers at 8 CFR 1003.102.
In teaching ethics programs and also representing lawyers in disciplinary matters, I see three categories of lawyer awareness of these rules:
- Lawyers who are completely unaware of these federal rules.
- Lawyers who are somewhat aware of the rules but believe they only apply to immigration court lawyers who represent clients before the Executive Office of Immigration Review (EOIR).
- Lawyers who are aware that these rules apply to representation before both EOIR and DHS.
I f you don’t know these rules exist, it’s of course hard to make sure you comply with them. So, awareness is a good first step.
A few brief comments on these rules:
- They were first promulgated back in 2000 (See 65 FR 39526 and then extended to DHS in 2010 (See 75 FR 5528).
- The rules tend to be court-centered, meaning protective of government interests, though there are some interesting additional protections for clients and even some provisions that provide additional leeway for practitioners before EOIR and DHS.
- These rules might conflict with state ethics rules. Compare, e.g., 8 CFR 1003.102(c) with CA Rule of Professional Conduct 1.6 and CA Business and Professions Code 6068.
- Choice of rules can be complicated in immigration practice. See, e.g., Attorney Grievance Commission of Maryland v. Celestine Tatung, Misc. Docket AG No. 14, Sept. Term, 2020.
- In my view, it is safer to interpret federal and applicable state rules harmoniously whenever possible.
- Compared with the ABA Model Rules, they are brief. So, if you are an immigration lawyer, please read them sometime soon!