Are There Limits to What You Can Reveal When Defending Yourself?
By: Kevin Bank and Francesca D’Angelo
In both criminal and immigration proceedings, clients can seek to reopen or vacate prior court or administrative decisions based on a claim of ineffective assistance of counsel. To succeed on the claim, the client needs to make a showing that counsel acted so incompetently that the client was deprived of due process. Depending on the circumstances, a lawyer who is the subject of an ineffective assistance of counsel claim may be ordered by the court to respond to the allegations, may choose to do so of his own accord, or may decide not to respond at all. If filing a response, a lawyer must balance the requirements of the Rules of Professional Conduct (RPC) to maintain client confidences with the lawyer’s understandable interest in defending his conduct.
The dilemma is particularly apparent in immigration proceedings, where motions to reopen based on allegations of ineffective assistance of counsel are a frequent occurrence. This article focuses specifically on ethical considerations in responding in the immigration context.
In 1988, to address the rising number of ineffective assistance of counsel motions where “essential information” was lacking to evaluate the claim, the Board of Immigration Appeals (BIA), which hears appeals from decisions of immigration judges around the country, established specific standards for ineffective assistance motions. Lozada held that: 1) the motion should be supported by an affidavit attesting to the relevant facts and include a statement that sets forth the agreement with former counsel and what counsel did or did not represent to the client; 2) counsel who is the subject of the complaint must be informed of the allegations and allowed the opportunity to respond. The former counsel’s response, if any, should be submitted with the motion; and 3) the motion should reflect whether a complaint has been filed with appropriate disciplinary authorities, and if not, why not.
Although the Ninth Circuit has allowed for some flexibility in applying the Lozada factors, the essential requirements remain the same. As a result, immigration lawyers can often find themselves in a situation where they are the subject of both a disciplinary complaint and a motion before the immigration court or the BIA, both alleging lack of competence and/or diligence. Should a lawyer respond to the motion if not ordered to? Are there ethical considerations to what a lawyer can include in the response? How should the lawyer handle the disciplinary grievance?
An exception to RPC 1.6 permits a lawyer to reveal confidential information when responding to allegations made by the client concerning the lawyer’s representation, although it does not require her to do so. RPC 1.6 states:
- A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
- A lawyer to the extent the lawyer reasonably believes necessary:
(5) may reveal information relating to the representation of a client to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.
Although RPC 1.6(b) does not mandate any kind of response, ignoring allegations of misconduct in immigration matters carries its own risks. For instance, the BIA or the immigration judge could make a finding of ineffective assistance of counsel without the lawyer’s input. Such a finding could result in disciplinary charges from the Executive Office for Immigration Review, which has authority to impose disciplinary sanctions (including expulsion, suspension, and public or private censure) on lawyers who practice before the BIA and immigration courts. One ground for such discipline is if a lawyer engages in conduct that constitutes ineffective assistance of counsel, as previously determined in a finding by the Board or an immigration judge in an immigration proceeding.
Furthermore, if a client files a bar grievance against his former lawyer as occurs in most cases brought under Lozada, the Rules for Enforcement of Lawyer Conduct (ELC) require that the lawyer file a response to the grievance, or face the consequences for failing to cooperate. Under the ELC, a lawyer must file a “full and complete response” to the grievance. (ELC 5.3(e).) However, as discussed below, the ELC are a unique set of rules that apply only to disciplinary proceedings. They provide the lawyer with far more lee-way to provide information protected by RPC 1.6(a) than in other contexts.
The Lawyer Must Limit and Protect Client Information Filed with the Court or Administrative Tribunal
As interpreted by the courts and the comments to the RPC, the exception in RPC 1.6(b) covering lawyer-client disputes is limited. It does not provide the lawyer with a license to disclose any and all information about the client that the lawyer becomes privy to during the representation. Disclosure adverse to the client’s interests should be no greater than the lawyer believes reasonably necessary to accomplish the purpose of responding to the allegations. (RPC 1.6(b), Comment 14.) In other words, a controversy with the client does not give a lawyer a blanket pass to reveal everything about the representation.
Don’t Threaten or Misstate the Law
The exceptions to RPC 1.6(a) “should not be carelessly invoked.” In the Boelter case, a lawyer was hired by a client to represent him in a tax dispute with the IRS. During their initial consultation, the client revealed information that led Boelter to conclude that the client had concealed assets from the IRS. After the representation had concluded, Boelter claimed that the client still owed him $1,800 in fees. Boelter wrote a letter to the client that stated:
If we are not paid in full by October 15, 1991, we will file suit for the fees. You should understand that if we are forced to file suit, you forgo the attorney-client privilege and I would be forced to reveal that you lied on your statements to the IRS and to the bank as to your financial condition, this would entail disclosure of the tapes of our conversations about your hidden assets…The choice is yours.
The letter was accompanied by a memo that stated:
A copy of this letter is also being sent by certified mail. Our preparations to file suit have begun. I would suggest that you liquidate one of the undisclosed works of art you have & pay us by November 5, 1991. Your choice.
Boelter’s client filed a grievance. The court found that Boelter had misrepresented the scope of the RPC 1.6(b) exception, specifically the phrase that stated that a lawyer may reveal client confidences and secrets to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and client. While RPC 1.6(b) would have permitted Boelter to reveal information in litigation to recover fees if he reasonably believed that such disclosure was necessary, he would not have been forced to do so as he claimed in the letter. The court noted that it was a “leap in logic” to even claim that such a disclosure could be made voluntarily under the exception. Revealing the information regarding the client’s allegedly concealed assets would have been permissible in Boelter’s hypothetical lawsuit only in response to the client’s claim of an inability to pay Boelter’s claimed fee. The client had not offered such a defense and was unlikely to do so, because inability to pay is not a valid defense to an entry of judgment and Boelter had failed to consider that the client would raise other defenses such as evidence in the record that Boelter “grievously overcharged” him.
Limit Your Disclosure to What Is Reasonably Necessary to Establish the Claim or Defense
Even if disclosure of client confidences and secrets has benefits, such as exposing a former client’s corruption, it must be weighed against the harm that occurs when a lawyer breaches the client’s trust by revealing confidential information. Breaches are harmful to society because they weaken the public perception that people can seek assistance and rely on their lawyers without being concerned about the consequences of disclosure. Thus, even if a lawyer personally believes that revealing client information will be beneficial to the court or to society at large, she must consider the importance the Supreme Court has placed on preserving client confidences.
In a recent stipulated disciplinary case, a lawyer was reprimanded for revealing more than was necessary to the immigration court after the client filed a Lozada motion. A client consulted with a lawyer about filing an application for asylum. The meeting took place within the one-year deadline for filing such a petition. The lawyer met the client twice but ultimately chose not to represent him. In his Lozada motion, the client claimed that the lawyer provided ineffective representation because he did not tell him that there was a one-year deadline for bringing an asylum petition. The client also claimed in his Lozada affidavit that he had met with the lawyer several times, but that the lawyer told the client he could not take the case because he was too busy.
The lawyer filed a responsive affidavit with the immigration court which stated that he had asked the client why he was afraid to return to his country of origin when discussing the asylum claim, and then asked the client to obtain documentary evidence to support his case. The lawyer continued:
The documents not only did not support his prior representations to me they so contradicted in his prior representations that it appeared to be a different story to me. I decided not to take the case at this point because I could not in good faith assist him in making an application based on facts I did not trust.
The lawyer stated that the purpose of disclosing this information was to rebut the client’s claim that he did not take the client’s case because he was too busy. Notwithstanding the lawyer’s declaration, the court granted the client’s motion to reopen and the client was ultimately granted asylum.
The lawyer stipulated to a violation of RPC 1.6(a). The revelation of information about the client’s differing stories for needing asylum did not fall within the exception of RPC 1.6(b), as the information was not reasonably necessary to respond to the client’s allegation that the lawyer was ineffective because he did not inform the client of the one-year deadline for filing asylum applications. Further, the lawyer did not seek a protective order or make other arrangements to limit disclosure of any of the confidential information he had revealed.
Similarly, in a disciplinary case from West Virginia, the court imposed a four-month suspension on a lawyer where he revealed unnecessary information in an affidavit supporting a motion to withdraw. In that case, the client entered a nolo contendre plea, but later changed his mind. He accused the lawyer of misrepresenting the plea deal to him and told him that he would seek to set it aside. The lawyer filed a motion to withdraw with an affidavit alleging that his client had engaged in a “flat out lie” to the court when he accused the lawyer of misrepresentation, and that in fact, the client told him that he would have been convicted if the matter had gone to trial. The court found that the statements revealed confidential information and were inappropriate and unnecessary in the context of a motion to withdraw.
Protect the Information
If a lawyer does disclose confidential information, he should ensure that the disclosure is made in the least public manner and only to the people who need to know it. The lawyer should seek protective orders or make other arrangements to minimize the risk of avoidable disclosure.
There are provisions in immigration court procedural rules which would permit a judge to protect information or evidence from public disclosure. An immigration judge can close a hearing to protect witnesses, parties, or the public interest.
There are provisions in immigration court procedural rules which would permit a judge to protect information or evidence from public disclosure. An immigration judge can close a hearing to protect witnesses, parties, or the public interest. A lawyer could also request that documents be filed under seal, although the rules do not specifically address whether a private litigant (as opposed to government counsel) can do so.
Responding to the Bar Grievance
In contrast to defending one’s actions in an immigration court proceeding, in responding to the disciplinary grievance, the lawyer has leeway to reveal client confidences, even if the information revealed is not directly related to the client’s allegations. A lawyer responding to a bar grievance can provide information otherwise protected by RPC 1.6(a) and also be assured that under the ELC, the grievance, response, and other information gathered in the investigation will be kept confidential by the Bar Association (with the limited exception of the release of information necessary to conduct the investigation.) Thus, a lawyer may decide to file a more detailed response to the Bar Association’s grievance, and a more limited response to the immigration court or the BIA. Simply copying the lawyer’s Bar grievance response to the immigration court could violate RPC 1.6 if the response includes confidential information obtained during the representation that is not reasonably necessary to respond to the client’s allegations. It may be necessary to file separate responses in those situations.
In summary, in responding to the immigration court or the BIA to motions alleging ineffective assistance of counsel under Lozada, lawyers are permitted to reveal information related to the representation that would otherwise be protected under RPC 1.6(a), but only to the extent that is necessary to address the client’s allegations. If the information released would otherwise be confidential, the lawyer should move to protect the information.
A lengthier version of this article originally appeared in the March 2012 issue of Bar News, published by the Washington State Bar Association (WSBA), and is reproduced here with the permission of the WSBA. [Issues of Bar News are no longer available on the WSBA website.]