Immigration Lawyer Ethics and Pro Bono Practice Examined

Introduction

Every person who comes before a court in the United States has a constitutional right to representation. That is not a right reserved for citizens alone; it is a right extended to everyone, because justice serves as the premise for the social structure in America. This is a right that the nation's founders were emphatic about, having themselves been falsely accused, held, and tried without representation. When America won her independence from Great Britain, the founders wanted to ensure that everyone who came before the justice system had the benefit of a trained legal mind to represent them. Unfortunately, this does not guarantee that the legal mind is an ethical one, or that the attorney's level of ability and skill in trial law is of sufficient quality.

The subject of this assessment is an associate attorney practicing immigration law at a firm in Seattle, Washington. He was interviewed regarding his work and approach in defending clients in cases brought before the Immigration Court for removal. He explains removal as a petition to the Immigration Court, made by the Immigration Service, to deport a defendant — legal or illegal alien — to their country of origin. As he explains, immigration cases for removal can be brought against children as well as adults, and, unlike other immigration cases where defendants are entitled to government-paid attorneys, a petition for removal does not entitle the defendant to government-funded counsel. For him, these cases are a double-edged sword: he welcomes the challenge, and the pro bono work is important to him personally. He is an attorney whose personal contributions to the community stand as testament to his integrity and dependability both as a lawyer and as a citizen.

Nearly every major metropolitan center from coast to coast faces challenges related to illegal immigration. Immigration laws that can be used to remove criminal offenders from the United States back to their country of origin serve to address the problem of undocumented individuals who commit crimes here. The attorney has made himself available to many of the people he represents because he believes they deserve the opportunity for representation, and because he understands that every opportunity to extend their stay in the United States increases the chance that they may remain here permanently. That, from his perspective, is the goal: to improve the opportunity for a better life for the people he serves.

Whether the broader community would agree with him remains to be seen. Most of his clients, he says, are not people convicted of crimes, but rather people who are victims of "a flawed international trade system and a broken immigration system." To many, this framing might suggest that his clients are criminals — if not career criminals, then people who have in some way broken the law within what he calls a broken system, which has brought them before the immigration court. He is discriminating in the cases he accepts: if a case is "winnable," he confesses, that is what he will readily take. There are cases, however, that he also accepts because his philosophy holds that the longer he can keep a client in the country, the greater their opportunity to make their stay permanent.

Reading the interview, we can see that he is an experienced immigration attorney, but we learn relatively little about the interviewer. In some respects, the interviewer missed opportunities to explore the attorney's comments in greater depth. As it stands, the interview tells us comparatively little and allows the attorney to almost completely guide the conversation in the direction he prefers — which is itself a sign of a skilled trial attorney.

It is well within an attorney's right to refuse a case if he believes the client is attempting to involve him in submitting false or misleading information. Not only should he refuse such a case, but it is professionally prudent to do so. A client who seeks to have an attorney falsify applications or records on their behalf would not hesitate to implicate that attorney as a scapegoat if problems arose later.

The Attorney's Philosophy

The attorney is correct when he states that if he is unaware of a client's fraudulent intent, it is a non-issue. If there is a flaw, it is not in his approach to practicing immigration law or in his ethics. A client who chooses to provide false and misleading information to their attorney cannot be anticipated by the lawyer, who must accept that the client is telling the truth — otherwise the entire system breaks down. If, on the other hand, the attorney becomes aware of a deception, he must decline to participate in it, and he has indicated that this is indeed his practice.

The attorney is heavily involved in pro bono work and participates in numerous community organizations through which he is approached for those kinds of services. He is a man of integrity and conscience who works within the ethical framework imposed upon him as a member of the bar and as an officer of the court.

When the attorney speaks about withdrawing from a case, it is always a matter of ethics that compels an attorney to consider withdrawal from a pro bono matter. An immigration court case is particularly difficult to withdraw from, because judges must ultimately approve an attorney's withdrawal. Most judges would require serious extenuating circumstances before permitting an attorney to leave a case that might otherwise leave a defendant without counsel. Withdrawal is a serious matter — one that is ultimately at the judge's discretion depending on how far the case has progressed.

The attorney notes that the definition of "morally" as used in the legal guidelines governing withdrawal is ambiguous. That ambiguity works to prevent a lawyer from being implicated merely by hearing a client's account of misdeeds or ideas about misdeeds. There is a confidentiality obligation under which lawyers operate, and the attorney is bound to maintain that confidentiality even if his client has committed an illegal act. That obligation does not, however, require him to assist a client in perpetrating a fraud or to continue representing someone when doing so would compromise his legal ethics. From his statements, there is no doubt that he understands how to handle himself when such situations arise — which is likely why he can state that he has never found himself in a genuinely compromising situation.

The attorney does not accept cases in which he believes the client intends to cause harm to another individual. He has also stated that most of his clients are not violent, but rather victims of systems and structures — on both sides of the border — that fail to meet basic human needs. He is a humanitarian, and this is evident in his work. He is a member of multiple humanitarian organizations within his community and says he typically carries two to three pro bono cases at any given time.

Conclusion

Some people may believe that conflicts of interest blur so easily into one another that right and wrong become difficult to distinguish. It is the lawyer's responsibility to maintain the clarity of mind needed to navigate those complexities coherently. The attorney's philosophy attempts to do precisely that, and his expressed approach is consistent with sound legal ethics and the professional standards of the practice of law.

By the time a lawyer passes the bar and begins practicing law, he or she has made a significant academic and financial investment in their career. Most attorneys therefore understand what is at stake in that investment, and carelessly disregarding it in ways that would jeopardize their license is the exception, not the rule. There are, however, malpractice complaints filed against attorneys by individuals and others, and these are serious charges that the professional organizations responsible for licensing routinely investigate. As complaints accumulate, the scrutiny intensifies. Being disbarred ends a lawyer's ability to practice and earn a living in the profession, rendering the investment in education irrelevant. This reality provides a strong structural incentive toward ethical conduct, above and beyond any personal commitment to integrity.

There is no indication that this attorney is less than mindful of his fiduciary responsibilities or his obligations as an officer of the court. The philosophy he pursues in his work is a moral one, exemplified by his hard work in community organizations and his advocacy for immigration law reform — reform consistent with the moral questions ordinary people face every day. He is a lawyer and a man who takes his responsibilities seriously, pursuing them with vigor and doing the best work he can on behalf of his clients. He does not take cases that compromise his own moral principles, nor does he accept cases he believes would be harmful to the broader society. He makes an effort to avoid representing hardened criminals, and he does not engage in fraud in his filings.

Looking at the current immigration system in America, one thing seems certain: change is coming. Given this attorney's passion and commitment to bringing about that change, it would not be surprising to find that he one day becomes a meaningful facilitator of reform in American immigration law.