Although there is no area of the law that is not fraught with ethical conundrums, immigration lawyers face ethical dilemmas seemingly on a daily basis and for a variety of issues. Language barriers, inherent conflicts of interest in common dual-representation agreements, a frequently changing practice area, and clients who often have extremely limited funds for legal counsel all factor into the ethical quandaries facing members of the immigration bar. This article attempts to highlight some of the more common ethical challenges facing immigration lawyers. Note that this article will discuss the subject using references to the American Bar Association Model Rules of Professional Conduct (Model Rules), as most states’ rules track these pretty closely. I will also discuss how developments in artificial intelligence (AI)affect how immigration lawyers must consider some of the ethics rules discussed.
At their heart, the ethics rules boil down to the fiduciary duty lawyers owe their clients. Rules on confidentiality, conflicts of interest, diligence, supervising staff, etc., all stem from this core obligation to act in the best interests of a client with good faith, loyalty, and honesty. Given the highly sensitive and high-stakes nature of immigration matters, this duty is even more pronounced.
So, the first questions that must be addressed are when does an attorney-client relationship exist and what parameters can be set on the scope of that representation.
Immigration law has long been an area in which information is provided in public channels to assist the public as well as create awareness of a lawyer’s practice. Indeed, some of the first websites that debuted 30 years ago were launched by immigration lawyers, and immigration lawyers regularly discuss immigration law on live streams and podcasts, on platforms such as Facebook, Twitter, LinkedIn, and TikTok, as well as on blogs and an untold number of other channels. And lawyers’ websites often have content about immigration law that is read by the public (including new chatbots that answer questions based on scripts or generate answers using AI). There are also large groups on platforms such as Facebook, WhatsApp, and Telegram Messenger where people with similar immigration situations discuss their circumstances, and lawyers are sometimes invited to the conversation.
Do people who rely on information they receive in this way have a legitimate claim to an attorney-client relationship? In public settings (arguably posts), comments and replies are less likely to create an attorney-client relationship because they are typically viewed as general information. Nevertheless, providing disclaimers regarding the intention to not create an attorney-client relationship is good practice. For example, including a written disclaimer in a lawyer’s profile and web page or giving a verbal disclaimer during a podcast or livestream (and including a written disclaimer in the comments section) is a good practice.
Private communications with people who find a lawyer in one of these settings can be more of a challenge. If a lawyer answers a question by email or in a direct message on one of the platforms, does the story change? While providing information is often the norm, lawyers should still note that the information is intended to be general and not specific legal advice, and lawyers should encourage the person to contact them (or another lawyer) for a detailed consultation. Lawyers should also consider adding disclaimers to their email signatures when addressing immigration queries from non-clients.
Trickier issues arise when AI enters the mix. An app that answers questions where a lawyer has not created the text is obviously riskier because AI tools are still far from perfect and sometimes give answers containing incorrect information. Also, these apps sometimes have very human-like voices and writing styles, and users could confuse them with an actual lawyer answering their questions. These bots, at a minimum, should be configured to avoid providing specific information on legal questions or handling requested legal tasks (such as drafting a document) with no review and with no actual engagement of a lawyer. Disclaimers arguably might not be enough to avoid liability.
An initial consultation can sometimes create an attorney-client relationship if the lawyer provides specific legal advice during the meeting. Even if no formal agreement is signed, potential clients may reasonably believe that the lawyer is acting on their behalf, thus triggering the lawyer’s ethical duties. At a minimum, that would include keeping a matter confidential. And if the lawyer’s representation is sought by another party with conflicting interests, the lawyer would likely be barred from representing that other party. For example, if an employer has an initial consultation with an immigration lawyer about the rules for terminating an immigrant employee (but nothing beyond a consultation is requested), and then that employee contacts the lawyer seeking assistance in preserving his immigration status, the lawyer is going to be barred from assisting the employee.
The most straightforward way for an immigration lawyer and a client to establish an attorney-client relationship is through a mutual agreement, typically in the form of a written retainer agreement. This document outlines the scope of representation, the legal services to be provided, and the terms of payment. Once both parties sign the agreement, the relationship is formally established.
Model Rule 1.6 states that a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation, or the disclosure is permitted by the rule. It is not unusual in immigration matters for clients to face life-threatening risks if information they provide to a lawyer is revealed publicly. That’s particularly true in political asylum cases but also in many other types of immigration matters where discussions of clients’ immigration status history, their family circumstances, and past traumatic experiences are a necessary part of the conversation. Not surprisingly, the obligation to keep information confidential is often one of the first subjects that immigration clients will ask about before they talk to a lawyer.
An immigration lawyer faces challenges that are specific to the nature of this area of law.
First, there are language barriers. Many immigration clients are not fluent in English, and it is necessary for interpreters to be used. Here, the lawyer must ensure that the translator understands and adheres to the required confidentiality standards. Failure to do this creates a risk that translators might inadvertently or deliberately disclose confidential information. Lawyers should use translators who are bound by professional confidentiality agreements and should educate translators about the importance of maintaining confidentiality. That means asking translators to sign confidentiality agreements that explicitly state their obligation to keep all client information private. Alternatively, if a lawyer has staff who are fluent in the language, the staff can be used to translate because they are already subject to confidentiality obligations as employees of the firm. Lawyers who have limited language skills but nevertheless try to “wing it” and skip using an interpreter could face ethical challenges on the grounds of competency and diligence relating to any translation mistakes.
Second, immigration clients come from countries where confidentiality in legal proceedings may not be respected. An immigration lawyer will need to explain clearly the concept of confidentiality and reassure clients about the protections in place. For example, a lawyer may need to keep information on a client’s past unauthorized entry to the United States and only disclose it with the client’s consent as part of an application for an immigration benefit (such as asylum).
Immigration lawyers, like other lawyers, should be careful regarding how they communicate information about a client. This means using secure communications channels (such as a secure document-sharing platform) to transmit confidential data. And this responsibility now includes refraining from putting confidential information in AI chatbots that share information to train the AI company’s language model or are potentially subject to review by the company’s quality-control employees.
Model Rule 1.4 requires a lawyer to keep clients informed in a timely manner about their matter, consult with clients about the means the lawyer will use to accomplish the clients’ objectives, and promptly comply with reasonable requests for information about a case.
Just as in other legal specialty areas, this rule is a frequent source of complaints from clients. Aside from the potential need to use translators to comply with this rule, immigration lawyers face other common challenges. For example, in a visa application matter, a lawyer must promptly inform the client about any updates from U.S. Citizenship and Immigration Services (USCIS), such as requests for additional evidence (RFEs) or interview notices. This includes explaining the significance of these requests and the potential impacts on the application time line.
Immigration matters, including removal cases in an immigration court, are often governed by strict deadlines. Because clients often need to provide evidence that is difficult to obtain, a lawyer who is not timely in communicating with clients could seriously disadvantage them by not having the necessary evidence.
But most often, clients are under considerable stress and just want periodic status checks on a case. Lawyers should periodically check in with clients, promptly answer questions about the status of a case (if only to say “there is no news”), and consider using technology such as a case management system that allows clients to have on-demand information about their matter.
Model Rules 1.7 through 1.10 govern conflicts of interest, a frequent challenge for immigration lawyers. Rule 1.7 bars representing a client involving a concurrent conflict of interest where one client will be directly adverse to another client or where representing a current or past client will limit an attorney’s ability to represent another client. The rule also explains how a lawyer could still represent a client in these circumstances, including by getting a waiver. Rule 1.8 sets rules for a lawyer being paid by someone other than the client. Rule 1.9 protects former clients when the lawyer represents a new client in the same matter. Rule 1.10 governs how lawyers in a firm are to handle matters that might conflict with a client handled by another lawyer in the firm.
Conflicts in immigration law typically follow a few fact patterns. One involves family immigration cases where a lawyer represents more than one member of a family and the interests of the individual members diverge. For example, say a lawyer is representing a husband and wife in their respective immigration applications. If the couple is separating or divorcing (or one of the parties indicates an intent to separate from or divorce the other), a lawyer may be unable to continue representing both parties because of a conflict of interest. In some cases, it might be possible to continue representing one of the clients if both parties consent. But such waivers present risks for the lawyer because it might be argued that the consent was not truly informed (particularly if one of the parties has weak English skills and a translator is not used). The more conservative practice would be to withdraw from representation and have each client seek separate representation.
Another example of a conflict is when a lawyer represents both an employer and an employee in an employer-sponsored visa application. If an employer indicates she might be terminating a worker (or a worker indicates he is planning to leave the employer), the lawyer’s ability to impartially represent both parties is compromised. In most employment-based visa petitions, a single lawyer represents both the employer and employee, so these types of conflicts are not rare. A lawyer might be able to continue representing one of the parties if both parties provide informed consent. Otherwise, the lawyer needs to withdraw from representing both parties in the matter. Some lawyers may attempt to craft an engagement letter to represent one party, but this is risky because many experts believe dual representation cannot be waived when there is a power imbalance between an employer and an employee.
Model Rule 1.1 states that a lawyer “shall provide competent representation to a client” and further states that “competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
Violating the duty of competence can come up in a variety of ways for an immigration lawyer. Immigration law changes rapidly, and lawyers who don’t stay informed on new developments can be found liable.
An immigration lawyer who fails to thoroughly investigate the facts of a client’s case, such as verifying the authenticity of documents or corroborating the client’s claims with additional evidence, can be in violation.
Family, corporate, and criminal law questions sometimes arise in immigration matters, and immigration lawyers who wing it could face a Rule 1.1 complaint. Consulting with a competent lawyer in one of those fields may be necessary if the immigration lawyer doesn’t have knowledge of the other practice area.
Model Rule 1.5 states that “a lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.” The rule comes up in a few instances for immigration lawyers. Most immigration lawyers charge on a flat-fee basis, and questions can sometimes arise concerning when a fee is properly earned. For example, is it ethical to charge an entire fee up front? Must the fee be put in a trust account? Many immigration lawyers will charge on a benchmark basis and charge an approximation of an hourly fee upon reaching each stage of a case. Other lawyers may charge on a monthly basis, with payments stretching out over the course of a case (or longer), working under the assumption that this approximates how much time a lawyer is likely spending each month. Some lawyers argue that they can charge a substantial engagement fee before work begins and that the fee has been earned up front because clients are paying to “reserve” a lawyer and ensure that the lawyer is available to work on their matter versus another client’s.
Many jurisdictions bar immigration lawyers from charging on a contingency fee basis because the jurisdiction forbids charging a fee unless there is a money payment at stake. Immigration cases typically involve only a government decision, so these jurisdictions hold that a contingency fee is improper.
Immigration lawyers are some of the earliest adopters of AI tools, so a great deal of discussion is happening relating to how ethics rules come into play. As a full disclosure, the author of this article is a founder of a company developing software in that space (the author is also a practicing immigration lawyer). The easiest way to analyze these questions is to consider using AI as another form of outsourcing (or insourcing when it comes to delegating work to nonlawyer staff members and junior attorneys). All the rules governing those situations generally apply to AI usage. (A good overview of this topic can be found in Melissa Heidrick, The Evolution of Gen AI and Legal Ethics, Law Prac., Mar./Apr. 2024.)
There are, of course, a variety of other ethics issues that immigration lawyers face. A big one involves the unauthorized practice of law because immigration is a federal practice area and ethics rules are imposed by states. Immigration is a paralegal-heavy practice, and immigration lawyers are relying more and more on contract staff (both in the United States and abroad); lawyers who delegate tasks without closely supervising the work produced by contract staff may violate rules surrounding diligence and supervision.
Fortunately for immigration lawyers, a superb treatise on legal ethics as it impacts immigration law has been published by the American Immigration Lawyers Association (AILA). Titled The AILA Ethics Compendium: Modern Legal Ethics for Immigration Lawyers, the book is freely available for download to members of AILA via its website.
