Practice Advisory: Ethical Practice in uncertainty
Today, VAAP staff and volunteers attended a professional responsibility presentation by the National Immigration Project National Immigration Project entitled, Removal Defense Webinar: Ethical Issues in a Time of Uncertainty. See below a report-out of key takeaways as we prepare for rapid changes in immigration practice starting on January 20, 2025.
Sources of Ethical Obligations
Lawyers: Governed by the ABA Model Rules, Vermont Rules of Professional Conduct, EOIR's 8 CFR 1003.102, ethics opinions, and secondary sources like AILA's Ethics Compendium.
Nonlawyers: Accredited Representatives (ARs) risk losing accreditation for unauthorized or unethical practice; and nonlawyers and legal assistants must avoid practicing law. Some states criminalize unauthorized practice, and noncompliance could trigger adverse consequences for organizational hosts. Supervising attorneys bear responsibility for ensuring nonlawyers understand and adhere to ethical rules.
Competency in a Rapidly Changing Legal Landscape
Lawyers and ARs must stay current on immigration law changes, particularly in high-stakes contexts like removal defense.
ABA Model Rule 1.1 mandates continuing education and technological proficiency. “I don’t know” or “it’s too hard to catch up to fulfill my duty to advise” is insufficient to discharge existing representation is compromised by legal changes or technology breaches.
Practical Tips for Maintaining Competence and Ethics
Join professional organizations (NIPNLG, AILA), listservs, and groups (limiting personally identifying information or PII in posts).
Pursue training and pro bono cases with reputable mentors.
Obtain truly informed consent from clients for confidentiality breaches or strategy changes.
Fees and Communication
Clearly outline fee structures, addressing potential cost increases under the next administration (ABA MR 1.15(c) and 1.16(d)).
Model Rule 1.4 emphasizes timely updates and distinguishing duties to communicate administrative info (handled by staff) from duties to communicate legal advice (lawyers only).
Client-Centered Representation
Clients, not lawyers, dictate the course of their cases within ethical and legal bounds.
Informed consent under Rule 1.0(e) ensures clients understand risks, uncertainties, and legal developments.
Lawyers must avoid aiding fraudulent or criminal activities (MR 1.2(d)) while helping clients navigate ambiguities in good faith. Watch for newly criminalized conduct by immigrants and lawyers under the next administration.
Documentation and Liability Mitigation
Record complex advice in writing and document decisions.
Avoid red-flag cases and prioritize personal integrity over taking on ethically risky matters.
Seek formal ethics opinions in advance of taking action to protect against disciplinary action.
Additional Considerations for VAAP
VAAP legal volunteers must always seek supervision (for legal workers) or mentorship (for attorneys), attend rounds and trainings, and get advanced VAAP sign-off for client submissions.
Ethical vigilance is crucial in VAAP’s pending BIA recognition application and efforts to develop AR mentorship programs and fee-for-service models.
Nonprofit legal services organizations like VAAP must take care to comply with IRS 501(c)(3) and state-based regulations and nonprofit laws. See NYLPI’s ICE preparation guidance here and nonprofit compliance guidance here.
Lawyers assisting clients in a pro se or limited-scope clinic are not obligated to maintain ongoing communication after the clinic ends IF:
Ensure clinic clients have the opportunity to fully understand the limited nature of the lawyer’s role—for instance, focusing solely on completing a specific form and nothing more. Understanding comes from reinforced messaging in the client’s best language and in client-accessible format(s).
During the scope of a limited-scope clinic, adhere to all relevant communication duties related to the specific task or limited-scope retainer agreement.
Remember the attorney-client relationship is in the eyes of the client so it is incumbent on attorneys to model the limits of clinic representation. Continuing to consult or just communicate once the representation is complete and engaged duties were fulfilled may trigger an ongoing attorney-client obligation.
