Facing Justice: Ethical Choices in Representing Immigrant Clients
The Georgetown Journal of Legal Ethics
Among the core lessons learned by lawyers representing immigrant clients is how to build trust in a cross-cultural setting.' Trust-building between attorneys and their clients usually is an ongoing process. As a client's trust in her attorney grows, it is not unusual for new information to emerge that the client did not feel prepared to reveal in the beginning. For example, in gender-based asylum or battered spouse cases, clients are often reluctant to reveal that they have experienced rape or other forms of sexual abuse, and attorneys may not identify symptoms of post-traumatic stress absent striking indicia of trauma or memory loss. At other times, clients may withhold evidence, particularly past criminal activity, that may or may not be relevant to the merits of their case out of embarrassment or fear that their lawyers will refuse or withdraw representation. At other times, some clients may feel compelled to provide fraudulent documentation to corroborate their claims. And at still other times, clients may seek to put a positive spin on a bad situation. As the client becomes more comfortable with the attorney, however, she is more likely to share this delicate information. If and when a client ultimately reveals the "truth' surrounding this information, the timing of its revelation can raise major ethical dilemmas for her attorney. Many times, a crisis could have been averted if the client revealed this new information before trial or the filing of pleadings. Revelation of new or different information after the case has progressed to a critical stage, however, often threatens to derail the case altogether, placing the client's advocate in an ethical quandary. This Article will explore the particular challenges encountered by an attorney when his client disclosed damaging information over the course of his representation in immigration court which conflicted with information that was previously on the record. In so doing, this Article will attempt to address the broader question of how to apply ethical norms in an increasingly draconian legal environment. On December 26, 2005, The New York Times published a front-page article describing several federal judges' scathing critiques of immigration judges' handling of immigration cases. The author cited one opinion by Seventh Circuit Court of Appeals Judge Richard Posner, who wrote that "'the adjudication of these cases at the administrative level has fallen below the minimum standard of legal justice." The article also references another appellate judge from the Third Circuit Court of Appeals who described how "'time and time again"' he had to "rebuke immigration judges for their 'intemperate and humiliating remarks." In apparent response, less than two weeks later, on January 9, 2006, U.S. Attorney General Alberto Gonzales issued a memorandum to immigration judges expressing concerns about these reports and concluding: "I believe there are some whose conduct can aptly be described as intemperate or even abusive and whose work must improve."' This Article will examine how one attorney ("Attorney S") confronted an ethical crisis at the eleventh hour of his case. The crisis was the result of competing obligations Attorney S had towards his client ("Bertha Harwood") and the tribunal when his client provided him with certain information after her Individual Hearing that conflicted with information on the record. The Article will examine the process by which Attorney S assessed his ethical obligations towards his client of zealous advocacy and confidentiality and his competing duty of candor toward the tribunal under both the Model Rules of Professional Conduct ("Model Rules") and the EOIR Rules of Professional Conduct. Specifically, the attorney in this case grappled with the question of whether he had to take remedial action under the rules, and if so, what remedial measures were appropriate. After much reflection, he chose a course of action that reframed certain questionable evidence but which favored the interests of his client over absolute candor towards the tribunal. Although he ultimately concluded that he was acting within the bounds of the relevant rules, Attorney S recognized that the choices he made tested the outer limits of his ethical obligation of candor toward the immigration court, and that a more cautious attorney might have made different ethical choices. Part II of this Article provides the backdrop of the governing rules of professional responsibility, including relevant Model Rules and the EOIR Rules, exploring the relationship between the two sets of rules. Part III presents the story of Attorney S's representation of his client and the ethical dilemmas he faced in his representation of her. Part IV sets forth conclusions about whether the ethical and moral choices the attorney made were consistent with his professional obligations. It also attempts to arrive at some broader lessons regarding the appropriate role of the immigration practitioner when the duties of zealous advocacy and confidentiality on behalf of the client collide with the duty of candor toward the tribunal in the current draconian context of immigration law enforcement.
Lauren Gilbert, Facing Justice: Ethical Choices in Representing Immigrant Clients, 20 GEO. J. LEGAL Ethics 219 (2007).