Ethical Issues in Immigration Practice Panelists: Becki Young, Hammond Young Immigration Law Andrea Shuford, Shuford Immigration Law Thomas Mason, Harris, Wiltshire & Grannis LLP Discussion Leader:

Emerging Challenges in Social Media & Online Marketing

Legal Ethics & Social Media When using social media, ensure you are complying with ethical rules regarding legal advertising. Avoid making false or misleading statements, such as identifying yourself as a “specialist” or an “expert.” Be careful about sites (i.e. LinkedIn and Avvo) that may identify you as a “specialist” or “expert” without your knowledge. © 2016 AILA D.C. Chapter Fall Conference

Legal Ethics & Social Media Avoid making prohibited solicitations. Is a Facebook friend request, or a LinkedIn connection request, a solicitation? Do not disclose confidential information – no posting about clients on social media without their express consent! © 2016 AILA D.C. Chapter Fall Conference

Legal Ethics & Social Media How about “friending” judges on Facebook? Rules vary by jurisdiction; Maryland allows with limitations (MD Op. 2012-07). While publicly available social media content is fair game, connecting with individuals (either represented or unrepresented) in order to gain access to their private social media content is general prohibited. © 2016 AILA D.C. Chapter Fall Conference

Legal Ethics & Social Media Beware of creating the impression of an attorney-client relationship by responding to a blog post or to legal questions posted online (i.e. Avvo), or engaging in online conversations (i.e. Facebook chat). If you claim your profile on social media sites like LinkedIn and Avvo, you must ensure that all information conforms to the ethics rules.  Source: 10 Tips for Avoiding Ethical Lapses When Using Social Media (https://www.americanbar.org/publications/blt/2014/01/03_harvey.html). © 2016 AILA D.C. Chapter Fall Conference

Navigating Limited Representation Engagements

Unbundled Legal Services & Limited Scope Representation In 2002, the ABA modified Rule 1.2 of the Rules of Professional Conduct to make it ethical for attorneys to limit the scope of their representation. The reasons for this change were: Transactional attorneys were already offering unbundled legal services. Expansion of the availability of legal services to moderate income people was necessary.  Resource: Handbook on Limited Scope Legal Assistance, A Report of the Modest Means Taskforce, American Bar Association, Section of Litigation © 2016 AILA D.C. Chapter Fall Conference

Unbundled Legal Services & Limited Scope Representation To determine whether an offer of unbundled legal services complies with the ethics rules, the attorney must Consider the reasonableness of the offered terms. Obtain informed consent from the client. Other important aspects to consider when offering unbundled legal services are: Client selection (e.g., most sophisticated clients will not want unbundled legal services). Effectiveness in representing clients in a particular matter (e.g., full pro-bono services may allow the attorney to more effectively represent clients). © 2016 AILA D.C. Chapter Fall Conference

Unbundled Legal Services & Limited Scope Representation Unbundled legal services are intended to allow consumers to buy a lawyer’s time and counsel in discrete areas. In immigration law, while some clients may want to hire an attorney for a specific process (e.g., file an I-140, but not the AOS), others may want to hire an attorney until the case is approved and visas are issued. Immigration attorneys should explicitly indicate the type of representation they will provide in the engagement letter. In a recent immigration-related case, an attorney was sanctioned by the MD Grievance Commission because he violated the communications rule (rule 1.4) by giving the impression that he was going to represent his client in immigration court (see Attorney Grievance Commission v. Akpan). © 2016 AILA D.C. Chapter Fall Conference

Unbundled Legal Services & Limited Scope Representation Two ways in which this issue frequently comes up in our practice: “Can you review a case that I have prepared before I file it?” “Can you include an extension for my dependent that I prepared, along with my H-1B extension?” © 2016 AILA D.C. Chapter Fall Conference

Pitfalls of Dual Representation

© 2016 AILA D.C. Chapter Fall Conference Dual Representation Whether in business or family immigration matters, attorneys often represent a petitioner and a beneficiary. Before any fee agreement is signed by either party, the attorney must inform both parties of the benefits and drawbacks of this type of representation. © 2016 AILA D.C. Chapter Fall Conference

Best Practices for Handling Conflicts of Interest

What Clients Need to Know Potential conflicts, even if none exist at the beginning of representation What will happen in the event of a conflict What is considered confidential information What is expected regarding confidential information The lawyer’s duty to disclose information and to be equally loyal to both parties Resource: AILA Ethics Compendium, ABA Model Rule 1.7, Conflict of Interest: Current Clients; Sherry K. Cohen (2017) © 2016 AILA D.C. Chapter Fall Conference

Potential Conflicts – Must Be Disclosed Spouses separating or divorcing Domestic violence between beneficiary and petitioner in almost any family immigration case Parent/Guardian petitioning for SIJS who has a prior removal order (if representing both parent in family and child in immigration court) Employee who wishes to change employer or employer who wishes to fire employee I-9 compliance issues © 2016 AILA D.C. Chapter Fall Conference

Rules on Conflicts Waivers D.C. does not require written conflict waivers or consents. Comment [28] to D.C. Rule 1.7 Virginia requires that the waiver or consent be “memorialized in writing,” which can just be a lawyer’s notes. Virginia Rule 1.7 (b)(4) and Comment [20]. Maryland requires that waivers be “confirmed in writing,” which at a minimum means a writing by the lawyer delivered to the client. Maryland Rule 1.7(b)(4) and Comment [20] © 2016 AILA D.C. Chapter Fall Conference

Confidentiality

Applicable Ethics Rules Lawyers are subject to the disciplinary jurisdiction of each state bar to which they belong. Some states assert disciplinary jurisdiction over non-members as well. ABA Model Rule 8.5(a). © 2016 AILA D.C. Chapter Fall Conference

Applicable Ethics Rules Immigration practitioners are also subject to discipline by the Board of Immigration Appeals of the Department of Justice and by DHS. 8 CFR 1003.101 et seq and 8 CFR 292.3 © 2016 AILA D.C. Chapter Fall Conference

Applicable Ethics Rules The immigration authorities have their substantive ethics rules. See 8 CFR 1003.102 (followed by both DOJ and DHS). © 2016 AILA D.C. Chapter Fall Conference

Applicable Ethics Rules For conduct before the Board of Immigration Appeals or DHS, the rules set forth at 8 CFR 1003.102 apply. These rules may also be applied by state bar authorities in the exercise of their disciplinary jurisdiction. ABA Model Rule 8.5(b)(1). © 2016 AILA D.C. Chapter Fall Conference

© 2016 AILA D.C. Chapter Fall Conference Confidentiality Confidentiality is not covered by the DOJ/DHS rules, so the default are the state bar rules. Confidentiality covers more than simply privileged information. E.g., D.C. Rule 1.6(a). The fact that information is “public” does not mean that a lawyer can freely disclose it. Confidentiality follows the client relationship. A lawyer is obligated to keep protected information (i.e., information covered by Rule 1.6) confidential except as otherwise authorized. Disclosure to non-clients without the client’s informed consent or if not in furtherance of the client’s objectives is problematic unless covered by another exception to Rule 1.6. © 2016 AILA D.C. Chapter Fall Conference

© 2016 AILA D.C. Chapter Fall Conference Confidentiality Joint Representations: a lawyer cannot keep relevant information provided by one client from another. Confidentiality is not covered by the DOJ/DHS rules so the default would be the state bar rules. Confidentiality covers more than simply privileged information. E.g., Comments [15] and [16] to D.C. Rule 1.7. This has particular application in immigration matters where a lawyer can represent families, couples or employers and employees. © 2016 AILA D.C. Chapter Fall Conference

Candor to the Tribunal & False Statements to Third Parties

False Statements/Evidence A lawyer cannot make knowing or reckless false statements of material fact or law or willfully mislead or misinform any person relating to a case, including the offering of false evidence. If a lawyer has offered material evidence in good faith but comes to learn of the falsity of the evidence, the lawyer shall take appropriate remedial measures. 8 CFR 1003.102(c). Compare with ABA Model Rule 3.3 and D.C. Rule 3.3. © 2017 AILA D.C. Chapter Fall Conference

Q & A