October 2013 Bar Bulletin
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October 2013 Bar Bulletin

New RPC Comment Addresses Immigration Status

By Dan Ford


On July 10, the Washington Supreme Court unanimously adopted a formal comment to Rule of Professional Conduct (RPC) 4.4 to provide guidance on the use of immigration status in civil matters. The comment became effective on September 1.

The comment notes, "Issues involving immigration status carry a significant danger of interfering with the proper functioning of the justice system."1 Immigrants participating in the civil justice system are vulnerable to efforts to take advantage of their actual or perceived immigration status. When immigrants fear that they, their family members or friends may be deported, their ability to bring meritorious claims is diminished.2 Using or threatening to use immigration status to intimidate, coerce or obstruct a participant in a civil matter undermines the justice system.3

To address this concern, the comment applies RPC 4.4(a) to the use of actual or perceived immigration status in a civil matter. Rule 4.4(a) states, "In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person ...." The comment clarifies that RPC 4.4(a) prohibits "a lawyer's assertion or inquiry about a third person's immigration status when the lawyer's purpose is to intimidate, coerce, or obstruct that person from participating in a civil matter."4

It recognizes that immigration-related abuse can take place both through assertions (e.g., "I could call immigration.") and through inquiries (e.g., "Do you really want to expose your illegal status by testifying in this case?"). The comment also states that a lawyer may violate the rule by an implied assertion that is effectively the same as an express assertion.5

In addition to RPC 4.4(a), the comment references several other rules that may be relevant to intimidation, coercion or obstruction in connection with immigration status. For example, there is a reference to RPC 8.4(d), which prohibits conduct prejudicial to the administration of justice.6 A 2009 North Carolina State Bar Opinion relied on Rule 8.4(d) in finding that reporting a party to immigration authorities is unethical unless it is required by law.7

There is a further reference to RPC 8.4(h),8 which prohibits conduct prejudicial to the administration of justice that is directed toward other parties and witnesses, and that a reasonable person would interpret as manifesting prejudice or bias on the basis of race or national origin. Although there is no authority directly applying RPC 8.4(h) to immigration abuse, there are analogies arising from civil litigation.

In a case involving the admissibility of statements related to immigration status, the Texas Supreme Court condemned numerous disparaging references to a witness's status, concluding, "Such appeals to racial and ethnic prejudices ... cannot be tolerated because they undermine the very basis of our judicial process."9 Thus, references to immigration status may manifest prejudice based on national origin or race and undermine the administration of justice.

Finally, the new comment cites RPC 8.4(b), which prohibits criminal acts that reflect adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer. Threatening to report a party or witness to immigration authorities may constitute the crime of extortion under RPC 8.4(b) if the lawyer's purpose is to knowingly deprive the opposing party of something of value and the elements of extortion are otherwise present.10 Extortionate threats are likely to adversely reflect on the trustworthiness or fitness of the lawyer making the threats.

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