Legal Strategies for Defending Attorneys Accused by the EOIR of Violating Immigration Attorney Ethics Pursuant to 8 C.F.R. § 1003.102

Our law firm has perceived a marked increase in preliminary inquiry  disciplinary ethics investigations involving immigration attorneys by the Executive Office for Immigration Review (“EOIR”). They typically stem from a complaint being filed by the Board of Immigration Appeals (“BIA”). [1] 

Since our firm’s attorney ethics defense practice involves representing immigration attorneys who have been accused of ethics violations under 8 C.F.R. § 1003.102, we have developed an approach to defending attorneys facing these sorts of issues.  Set forth below is a list of four of the more typical alleged attorney ethics violations involving counsel practicing before the BIA. Each includes a basic defense that can be raised, subject to the specifics of the matter’s applicable factual and legal issues.

POTENTIAL ETHICS VIOLATION #1

Defending the allegation under Rule 8 C.F.R. § 1003.102(c) that the immigration attorney “knowingly or with reckless disregard ma[de] a false statement of material fact or law…”

Under 8 C.F.R. § 1003.102(c) an attorney “shall be subject to disciplinary sanctions in the public interest if” the attorney

Knowingly or with reckless disregard makes a false statement of material fact or law, or willfully misleads, misinforms, threatens, or deceives any person (including a party to a case or an officer or employee of the Department of Justice), concerning any material and relevant matter relating to a 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 shall take appropriate remedial measures.

The typical defense to this allegation is that any errors were not made knowingly, with reckless disregard, nor with the intent to deceive or mislead the BIA. In other words, if there were inaccuracies, they were honest mistakes that did not materially undermine the truth of what was being communicated by the attorney.

POTENTIAL ETHICS VIOLATION #2

Defending the allegation under Rule 8 C.F.R. § 1003.102(j) that the immigration attorney “engage[d] in frivolous behavior when he or she kn[ew] or reasonably should have known that his or her actions lack[ed] an arguable basis in law or in fact”

Under 8 C.F.R. § 1003.102(j) an attorney “shall be subject to disciplinary sanctions in the public interest if” the attorney

Engages in frivolous behavior in a proceeding before an immigration court, the Board, or any other administrative appellate body under title II of the Immigration and Nationality Act, provided

(1) A practitioner engages in frivolous behavior when he or she knows or reasonably should have known that his or her actions lack an arguable basis in law or in fact, or are taken for an improper purpose, such as to harass or to cause unnecessary delay. Actions that, if taken improperly, may be subject to disciplinary sanctions include, but are not limited to, the making of an argument on any factual or legal question, the submission of an application for discretionary relief, the filing of a motion, or the filing of an appeal. The signature of a practitioner on any filing, application, motion, appeal, brief, or other document constitutes certification by the signer that the signer has read the filing, application, motion, appeal, brief, or other document and that, to the best of the signer’s knowledge, information, and belief, formed after inquiry reasonable under the circumstances, the document is well-grounded in fact and is warranted by existing law or by a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, and is not interposed for any improper purpose.

Id.

The most direct defense to this allegation is there were legitimate grounds to have taken the legal position before the immigration court. Likewise, it is important that the threat of being accused of advancing a frivolous position not unduly and unreasonably inhibit immigration counsel from advancing novel legal theories.

POTENTIAL ETHICS VIOLATION #3

Defending the allegation under Rule 8 C.F.R. § 1003.102(o) that the attorney “fail[ed] to provide competent representation to [their] client.”

Under 8 C.F.R. § 1003.102(o) an attorney “shall be subject to disciplinary sanctions in the public interest if” the attorney

Fails to provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners.

Generally speaking, a common defense to such an allegation is that the attorney’s acts or omissions did not reflect a lack of competence, but rather a strategic decision to emphasize certain legal issues over others. It should be remembered that the standard is not perfection, but what is reasonably required to zealously represent the immigration client.  

POTENTIAL ETHICS VIOLATION #4

Defending the allegation under Rule 8 C.F.R. § 1003.102(q) that the attorney “[f]ail[ed] to act with reasonable diligence and promptness in representing a client.”

Under 8 C.F.R. § 1003.102(q) an attorney “shall be subject to disciplinary sanctions in the public interest if” the attorney “[f]ails to act with reasonable diligence and promptness in representing a client.” Id. In that regard, the rule provides three specific categories:

(1) A practitioner’s workload must be controlled and managed so that each matter can be handled competently.

(2) A practitioner has the duty to act with reasonable promptness. This duty includes, but shall not be limited to, complying with all time and filing limitations. This duty, however, does not preclude the practitioner from agreeing to a reasonable request for a postponement that will not prejudice the practitioner’s client.

(3) A practitioner should carry through to conclusion all matters undertaken for a client, consistent with the scope of representation as previously determined by the client and practitioner, unless the client terminates the relationship or the practitioner obtains permission to withdraw in compliance with applicable rules and regulations. If a practitioner has handled a proceeding that produced a result adverse to the client and the practitioner and the client have not agreed that the practitioner will handle the matter on appeal, the practitioner must consult with the client about the client’s appeal rights and the terms and conditions of possible representation on appeal;

The key to defending against such an allegation is to start with the fact that the attorney-client relationship is premised upon discretionary decision-making on the part of the attorney. It is not  inherently unethical for to have deviated from the way the Department of Justice or even the Board of Immigration Appeals might otherwise have expected the attorney to have handled the matter.  

The attorney should generally start their defense by highlighting that they made a good faith effort to advocate for their client and addressed the key legal issues in that client’s case. Likewise, they should emphasize that the decision regarding how to do that is one that, perforce, must be left to the attorney’s reasonable exercise of discretion within the bounds of prevailing law and court procedures.

The Nissenbaum Law Group welcomes inquiries from immigration attorneys in need of defense with regard to disciplinary matters instituted either before the EOIR, BIA or DHS.

See an overview of the firm’s immigration attorney ethics practice. For an overview of the firm’s practice representing attorneys in defense of state bar ethics matters, please click the following state: New Jersey, New York, and Pennsylvania.