Defending Immigration Attorneys Facing EOIR Ethics Complaints and Investigations Presidential Memorandum (March 22, 2025) Regarding Enforcement of • 8 C.F.R. 292.1 et seq. • 8 C.F.R. 1003.101 et seq. • 8 C.F.R. 1292.19.

On March 22, 2025, the White House issued a memorandum to be utilized by the United States Attorney General and the Secretary of Homeland Security regarding “Preventing Abuses of the Legal System and the Federal Court.” (“White House Memo”). It created a series of modifications in the enforcement of the prevailing attorney ethics regime overseen by the Department of Justice’s Executive Office for Immigration Enforcement.

The following are five critical changes to the immigration attorney ethics enforcement mechanism engendered by the White House Memo that practitioners must keep in mind.

1. Immigration attorney ethics enforcement is now a priority for the Attorney General and Secretary of Homeland Security.

The DOJ and DHS have always had the jurisdiction to enforce the requirement that attorneys practicing under their regulatory scheme do so within ethical guidelines. However, the White House has now made it clear that it shall be a priority to enforce, among others, the following regulatory schemes: 8 C.F.R. 292.1 et seq., 8 C.F.R. 1003.101 et seq., 8 C.F.R. 1292.1 et seq.

8 C.F.R. 292.1 et seq. and  8 C.F.R. 1292.1 et seq.   concern representation of others at various points in the immigration process, including most notably “[a]ny attorney as defined in 8 CFR 1.2.”  8 C.F.R. 1003.101 et seq. concerns the ethical guidelines for attorneys appearing before the Board of Immigration Appeals (BIA).

2. How does the White House Memo broaden the scope of ethics investigations and complaints that must be undertaken by the Attorney General?

Pursuant to the White House Memo, there have been a number of enhancements to the scope of ethics enforcement that the Justice Department is required to undertake. These include the requirement for “the Attorney General to take all appropriate action to refer for disciplinary action any attorney whose conduct in Federal court or before any component of the Federal Government appears to violate professional conduct rules, including rules governing meritorious claims and contentions, and particularly in cases that implicate national security, homeland security, public safety, or election integrity.”

3. Can the alleged unethical conduct of a junior attorney be attributed to the senior attorney supervising them?

Importantly, the White House Memo includes the requirement that “the Attorney General shall consider the ethical duties that law partners have when supervising junior attorneys, including imputing the ethical misconduct of junior attorneys to partners or the law firm when appropriate.”

Importantly, this intersects with the standard already embodied in ABA Rule of Professional Conduct 5.1(c).  That RPC sets forth two scenarios in which a supervising attorney will be responsible for the acts or omissions of a junior attorney: (1) when “the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved” or (2) when the attorney has managerial or supervisory authority over the junior attorney and “knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.”

Rule 5.1: Responsibilities of Partners, Managers, and Supervisory Lawyers   

(a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.

(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.

(c) A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if:

• the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved

  the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Emphasis added.

4. The Attorney General is also encouraged to consider additional steps to take against the entire law firm if sanctions or other disciplinary action is warranted.

Importantly, the White House Memo makes it clear that in the event the Attorney General determines that sanctions or other disciplinary actions are warranted, they may initiate a process to recommend to the President that additional steps be taken, some of which can be implemented against the entire law firm. These can include such items as

• • reassessment of security clearances held by the attorney,
  • termination of any contract for which the relevant attorney or law firm has been hired to perform services, or
  • any other appropriate actions.

5. Can the Attorney General take action now for conduct that attorneys or the law firms engaged in years ago? If so, how far is the look-back period?

There is an eight year look-back period for “the Attorney General in consultation with any relevant senior executive official, to review conduct by attorneys or their law firms in litigation against the Federal Government over the last 8 years.”

If that process results in a finding that there was misconduct over the last eight years such as “filing frivolous litigation or engaging in fraudulent practices,” that “may warrant additional action,” they may initiate an internal process that can lead to the recommendation to the President of steps such as

• • reassessment of security clearances held by the attorney,
  • termination of any contract for which the relevant attorney or law firm has been hired to perform services, or
  • any other appropriate actions.

The Nissenbaum Law Group can Defend Immigration Attorneys Facing Ethics Investigations, Complaints, or Other Sanctions by the Department of Justice EOIR and other Federal Agencies.

In sum, The White House Memo has greatly increased the possibility of an immigration attorney being accused of unethical conduct. Moreover, the scope of sanctions has been enhanced to include not only the attorney acting or omitting to act, but also both their supervising attorneys and their law firms.

The Nissenbaum Law Group has a robust attorney ethics defense practice in New York, New Jersey and Pennsylvania. Its practice before the EOIR, BIA and/or DHS is an adjunct to that foundational practice. The firm welcomes inquiries from attorneys who the subject of any such matters.