Can a North Carolina criminal-defense lawyer advise an undocumented client to pay bond, seek a continuance, and appeal a DWI when those steps may lead to deportation or dismissal?

Plain-English summary

A DWI defendant, jailed on a secured bond and the subject of an ICE detainer, told his appointed lawyer he wanted to be deported quickly and did not want a conviction. The opinion addresses three questions about what the lawyer may do.

First, did the lawyer violate the Rules by advising the client of his legal option to pay the bond, where paying it would likely prompt ICE to begin removal within 48 hours and could lead the State to dismiss the DWI charge? The opinion answers no. Although a lawyer may not assist a client in conduct the lawyer knows is criminal or fraudulent, Rule 1.2(d) lets a lawyer discuss the legal consequences of any proposed course of conduct, and advising the client of the bond option and possible deportation is appropriate advice for a competent lawyer under these circumstances.

Second, may the lawyer move to continue the trial to give the client more time to pay the bond? Yes, on the same reasoning.

Third, after the client pleaded guilty (unable to raise the bond), was sentenced to time served, and was taken into ICE custody, may the lawyer enter a notice of appeal for a trial de novo knowing the pending deportation may result in dismissal of the superior court case? The opinion concludes the appeal is permissible. Rule 3.1 bars frivolous proceedings but allows a criminal defendant the leeway to require that every element be established, and filing the notice of appeal is not frivolous because the client has a constitutional right to a trial de novo before a jury. The question is whether the pleading is interposed for an improper purpose, which would violate Rule 3.1 and the Rule 8.4(d) prohibition on conduct prejudicial to the administration of justice. Rule 3.2 requires reasonable efforts to expedite litigation consistent with the client's interests, asking whether a competent lawyer in good faith would regard the action as having a substantial purpose other than delay. And Rule 3.3(a)(1) bars a knowing false statement of material fact to a court, in pleadings as well as in open court. The opinion finds no misrepresentation: the client's presence is not always necessary to resolve a superior court case, a trial can proceed by written waiver if the court permits, the client may in fact be available when the case is reached, and the State is unlikely to dismiss merely because the defendant has been removed. Filing the notice of appeal therefore does not violate the Rules.

In practice

Under the North Carolina rules as they stood at the time of the opinion, advising an undocumented client of the legal option to pay bond and face possible deportation is appropriate advice under Rule 1.2(d), which lets a lawyer discuss the legal consequences of a proposed course of conduct, and moving to continue the trial so the client can pay bond is likewise permitted.

Per the opinion, filing a notice of appeal for a trial de novo is not frivolous under Rule 3.1, because the client has a constitutional right to that appeal, provided it is not interposed for an improper purpose under Rule 3.1 or Rule 8.4(d). The opinion concludes the filing does not violate Rule 3.3(a)(1) because it states no false fact, given that the client's presence is not always required, a trial can proceed on written waiver if the court permits, the client may be available by trial, and the State is unlikely to dismiss merely because the defendant was removed.

Common questions

Q: Can a lawyer advise an undocumented client that paying bond may lead to deportation?

A: Yes. The opinion concludes Rule 1.2(d) lets a lawyer discuss the legal consequences of a proposed course of conduct, so advising the client of the bond option and possible deportation is appropriate advice.

Q: Can the lawyer move to continue the trial so the client can try to pay bond?

A: Yes. The opinion answers this the same way as the bond-advice question, treating the continuance as permissible.

Q: Is it improper to file a notice of appeal when deportation may moot the case?

A: Not in itself. The opinion concludes the appeal is not frivolous under Rule 3.1 because the client has a constitutional right to a trial de novo, unless it is interposed for an improper purpose barred by Rule 3.1 or Rule 8.4(d).

Q: Does filing that appeal misrepresent anything to the court under Rule 3.3?

A: No. The opinion finds no false statement of material fact, reasoning the client's presence is not always required, trial can proceed by written waiver if the court permits, the client may be available by trial, and dismissal on removal is unlikely.

Background and rules framework

The opinion applies North Carolina Rule 1.2(d) (a lawyer may discuss the legal consequences of proposed conduct but may not assist known crime or fraud, the analogue of Model Rule 1.2(d)), Rule 3.1 (meritorious claims and contentions, with the criminal-defense leeway to require proof of every element), Rule 3.2 (expediting litigation consistent with the client's interests), Rule 3.3(a)(1) and Comment [3] (candor; no knowing false statement of material fact to a court), and Rule 8.4(d) (conduct prejudicial to the administration of justice).

Citations and references

Rules of Professional Conduct:

• MR 1.2 / NC Rule 1.2(d) (discussing legal consequences; not assisting known crime or fraud)
• MR 3.1 / NC Rule 3.1 (meritorious claims; criminal-defense leeway)
• MR 3.2 / NC Rule 3.2 (expediting litigation consistent with the client's interests)
• MR 3.3 / NC Rule 3.3(a)(1) and Comment [3] (candor toward the tribunal)
• MR 8.4 / NC Rule 8.4(d) (conduct prejudicial to the administration of justice)

See also

• ABA Formal Op. 491: Avoiding Client Crime or Fraud
• ABA Formal Op. 93-376: Client Lying in Discovery

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2011-formal-ethics-opinion-3/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Inquiry #1:

Client A is arrested for driving while impaired. The magistrate sets a secured bond of $2000, schedules the trial for district court and notifies U.S. Immigration and Customs Enforcement (ICE) that Client A may be in the country illegally. Client A is taken to the county jail to wait for trial. At Client A’s first appearance, the judge appoints Attorney A to defend him.

ICE determines that Client A is an undocumented alien and gives the jail notice that it should be advised when Client A is released. Once Client A’s bond is paid, Client A will be held in the jail for an additional 48 hours to give ICE the opportunity to begin proceedings. If ICE does not serve Client A with a notice to appear within this time period, the jail will release him.

Client A tells Attorney A that he wants to be deported as soon as possible and does not want a conviction on his record. Attorney A discusses Client A’s options with him. If Client A pays the bond, ICE will probably come to the jail, transport him to a federal holding facility and begin removal proceedings within 48 hours of paying the bond. Once Client A is deported, the State might dismiss Client A’s DWI charge. Attorney A knows that, should Client A someday choose to re-enter the United States legally, a DWI conviction would be detrimental to an immigration application or an application for a work permit.

Attorney A is aware that the existence of an ICE detainer is only an indication that Client A might be removed before the resolution of the case. ICE may choose not to pick Client A up; it may serve him and then release him pending a removal hearing; it may offer him an immigration bond which can be posted so that he can secure his release during immigration proceedings; or he may be eligible for a remedy, such as cancellation of removal, which would allow him to receive permanent residency in the United States.

Did Attorney A violate the Rules of Professional Conduct by advising Client A of his legal option to pay the bond?

Opinion #1:

No. Although a lawyer may not assist a client in conduct that the lawyer knows is criminal or fraudulent, a lawyer “may discuss the legal consequences of any proposed course of conduct with a client”. Rule 1.2(d).. Advising Client A of his legal option to pay the bond and face possible deportation is appropriate advice for a competent lawyer to give to a client under these circumstances.

Inquiry #2:

May Attorney A move for a continuance of the trial to give Client A more time to pay the bond?

Opinion #2:

Yes. See Opinion #1.

Inquiry #3:

Client A and Attorney A decide that Client A will plead guilty to DWI in district court because Client A has been unable to raise the money necessary to pay the bond. Client A is sentenced to time served. The jail immediately notifies ICE that it has 48 hours to pick up Client A before he is released. ICE takes custody of Client A and transports him to a federal holding facility. Attorney A knows that Client A has the right to appeal for a trial de novo in superior court. Attorney A also knows that the superior court may dismiss the case if Client A is deported.

May Attorney A enter a notice of appeal knowing that Client A’s pending deportation may result in the dismissal of the superior court case?

Opinion #3:

Rule 3.1 prohibits a lawyer from advancing frivolous or meritless proceedings or arguments but permits a lawyer in a criminal proceeding that may result in incarceration the leeway to “so defend the proceeding as to require that every element of the case be established.” Comment [1] to the rule observes that “[t]he advocate has a duty to use legal procedure for the fullest benefit of the client's cause, but also a duty not to abuse legal procedure.” Rule 3.2 requires a lawyer to make reasonable efforts to expedite litigation “consistent with the interests of the client”. However, comment [1] to this rule adds, “[t]he question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay.”

Filing a notice of appeal for Client A is not, in itself, frivolous or meritless because Client A has a constitutional right to a trial de novo in superior court before a jury. The question is whether the pleading is interposed for an improper purpose which would violate not only Rule 3.1 but also the prohibition on conduct prejudicial to the administration of justice set forth in Rule 8.4(d).

Rule 3.3(a)(1) prohibits a lawyer from knowingly making a false statement of material fact to a court. This prohibition applies to statements in pleadings as well as to statements in open court. Rule 3.3, cmt. [3]. Comment [3] to the rule adds that “[t]here are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation.”

Although Attorney A believes that Client A may not be available for trial in superior court, a client’s presence is not always necessary to resolve a case in superior court. If a trial is necessary, it can be done by written waiver if the court permits. Moreover, by the time the case is reached for trial, the client may, in fact, be available. Lastly, it is unlikely that the State will actually dismiss the charges simply because the defendant has been removed. Therefore, filing a notice of appeal for Client A does not violate the rules.