When I was growing up, my mom worked for divorce lawyers. As a result, I heard stories on a regular basis about atrocities committed by clients against spouses and ex-spouses in the course of divorce proceedings. If there’s one thing that can call forth our inner war criminal, it’s marital strife. A child custody battle can turn a geeky, harmless waif into a blood-thirsty psychopath. Because of this, my primary career aspiration as a young person was to NOT be a family lawyer.
Nevertheless, as a family-based immigration practitioner, I have been unable to completely escape the toxic fall out created by clients going through inner-family conflict. Recently, I have had a spate of clients who, after starting their spousal petitions, suffered a falling out with their husband/wife and have called me wanting to “cancel the case.” Inevitably, it’s a betrayed spouse who calls. They no longer want to continue the immigration case with their spouse because he or she is a traitor, a cheater, a liar, a monster, or all of the above. I’ve actually had two separate cases now where petitioning clients have indicated that their mother-in-law practices witchcraft and has cursed the client’s spouse, making him/her crazy and/or violent. I’ve had clients ask me to have their estranged significant other deported. These situations raise some sticky ethical issues for the family immigration attorney. When we represent both petitioner and beneficiary in a legal matter before DHS, what are we to do when our clients, our supposed allies in the fight, turn their swords upon each other?
The ethical issues at play in these situations primarily revolve around our duties of confidentiality and our obligations to avoid conflicts of interest. The disciplinary rules implicated are Rules 1.05 and 1.06 of the Texas Rules of Disciplinary Conduct (TRDC). Rule 1.05 covers lawyers’ duties of confidentiality. It says that we must not “reveal confidential information of a client or former client” to any third party and shall not “use confidential information to the disadvantage of a client” unless the client provides informed consent for us to do so. Rule 1.06 is the General Rule on Conflicts of Interest. It says that lawyers are prohibited from representation of a client if the case “involves a substantially related matter” to that of another client or former client, and in which the client’s interests are “materially and directly adverse to the interests of another client.”
The following are some fact scenarios that have come up in our office recently in which Rules 1.05 and 1.06 are potentially implicated:
- Non-LPR cancellation client wins case but is awaiting visa and issuance of green card. Backlogs in the immigration court have resulted in his next hearing being set in November of 2019. (Seriously.) Wife, upon whose medical hardship cancellation was granted, calls and says husband is cheating and she wants the case cancelled and husband deported. Husband drops by to ask a question and brings new girlfriend with him. Lawyer is disgusted, but wonders: must the dissolution of the marriage be disclosed to the court? Must lawyer withdraw? May lawyer withdraw?
- Wife, an LPR, comes to our office in distress because husband is detained by ICE. Husband becomes removal defense client. Wife becomes naturalization client, then files petition for husband as part of removal defense strategy. A few years into this process, husband and wife begin to have problems on account of husband’s mother being involved in witchcraft and cursing the relationship. Wife now wants to cancel the representation because husband moved out of the house to go live with his mother. Lawyer feels that withdrawal from USCIS petition is warranted here. But what about the representation before EOIR? Must wife provide informed consent if lawyer is to continue the representation? If she wants him deported, is lawyer acting adverse to her interests by defending husband against that?
- Husband and wife come to lawyer for a spousal petition. Wife is a U.S. citizen. Later, husband discloses to lawyer that wife has been emotionally abusive and the couple has separated. Must lawyer withdraw from husband’s case? Most attorneys would say yes. There is, however, at least one veteran practitioner who would disagree. This practitioner, who spoke on condition of anonymity, would argue that in this situation there is no breach of confidentiality to the wife because the information about the abuse was not provided by her or on account of the lawyer’s representation of her. Furthermore, he would argue that absolutely no disadvantage accrues to the wife as the result of disclosure of the alleged abuse to USCIS. Finally, if the client lives in a rural area, then it is very unlikely that he could avail himself of the representation of another advocate. Thus, this renegade practitioner would say, what would be most unethical would be to drop this client and not help him get the benefits to which he is entitled. The renegade practitioner makes a compelling case.
A few years in this practice has taught me that, very often, the “right” course of action becomes clear after a little time. For example, the spouses might reconcile thus eliminating the conflict. Alternatively, the cheater’s new girlfriend may have her own immigration attorney and cheater may decide to go with that lawyer, so that withdrawal becomes a non-issue. In any case, these are questions that will outlast many a marriage.