What are a lawyer's ethical duties when the lawyer suspects or knows a client is in the country illegally, and must the lawyer ask about a client's immigration status?

Plain-English summary

The inquiry, submitted without a statement of facts, asked three questions: the ethical obligations of an attorney who suspects a client is an illegal alien; whether an attorney has a duty to inquire into a client's immigration status; and the obligations of an attorney who knows a client is an illegal alien. The committee answered that the obligations of a lawyer who suspects or knows a client is in the country illegally are the same as those of a lawyer who suspects or knows the client is engaged in any other form of ongoing criminal activity.

The committee explained that a lawyer who knows or suspects a client is engaged in criminal activity is governed by Rule 1.6 (confidentiality), designed to foster the trust and open communication critical to effective representation (Comment 2). Rule 1.6(a) prohibits disclosing client information unless the client gives informed consent, disclosure is impliedly authorized to carry out the representation, or it is permitted by paragraph (b). Rule 1.6(b) permits, but does not require, disclosure in certain circumstances; as to criminal activity, Rule 1.6(b)(1) permits disclosure when the client is planning a prospective criminal act. The committee read Rule 1.6(b)(1) so that neither a past criminal act, such as entering the country illegally, nor continuing status as an illegal alien constitutes a prospective criminal act within the rule, and found the remaining Rule 1.6(b) exceptions facially inapplicable to mere knowledge or suspicion that a client is in the country illegally.

The committee added that Rule 1.2(d) prohibits a lawyer from assisting a client in conduct the lawyer knows is criminal or fraudulent, which would bar helping a client remain in the country illegally, but does not prohibit assisting the client in legal affairs unrelated to immigration status. Finally, it concluded that a lawyer generally has no duty to inquire into a client's immigration status unless that status is relevant to the representation and the lawyer has reason to suspect the client is in the country illegally, citing Rule 3.3.

In practice

The opinion holds that, under the South Carolina rules as they stood at the time, a lawyer who suspects or knows a client is in the country illegally has the same duties as toward any client engaged in ongoing criminal conduct. The committee held Rule 1.6 protects the client's information and that neither illegal entry (a past act) nor unlawful presence (a continuing status) is a prospective crime triggering the Rule 1.6(b)(1) disclosure option, with the other Rule 1.6(b) exceptions inapplicable. It held Rule 1.2(d) forbids assisting the client to remain in the country illegally but allows unrelated legal work, and that there is generally no duty to inquire into immigration status unless it is relevant and the lawyer has reason to suspect illegality.

Common questions

Q: Can a lawyer disclose that a client is in the country illegally?

A: The committee concluded the Rule 1.6(b) exceptions do not apply, because illegal entry is a past act and unlawful presence is a continuing status, not a prospective criminal act under Rule 1.6(b)(1); so Rule 1.6 protects the information.

Q: Must a lawyer ask about a client's immigration status?

A: Generally no. The committee said a lawyer has no duty to inquire unless immigration status is relevant to the representation and the lawyer has reason to suspect the client is in the country illegally.

Q: Can the lawyer still represent the client?

A: Yes, on unrelated matters. The committee held Rule 1.2(d) bars assisting a client in remaining in the country illegally but does not prohibit assisting the client in legal affairs unrelated to immigration status.

Background and rules framework

The opinion applies South Carolina Rule 1.6 (confidentiality), including Rule 1.6(b)(1) (permissive disclosure for a client's prospective criminal act), Rule 1.2(d) (no assisting known criminal or fraudulent conduct), and references Rule 3.3 (candor toward the tribunal). These correspond to the like-numbered Model Rules. The committee treated suspected or known unlawful immigration status as a species of ongoing criminal activity for purposes of the analysis.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / SC Rule 1.6, 1.6(a), 1.6(b)(1) (confidentiality; permissive disclosure for prospective criminal acts), Comment 2
• MR 1.2 / SC Rule 1.2(d) (no assisting known criminal or fraudulent conduct)
• MR 3.3 / SC Rule 3.3 (candor toward the tribunal)

See also

• SC Bar Ethics Op. 22-05: Client's Forged Court Filing
• SC Bar Ethics Op. 22-03: No Duty to Report Ex-Client
• SC Bar Ethics Op. 07-02: Hiring a Prosecutor's Staffer

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-08-06/
• Original PDF: https://www.scbar.org/media/xpsjmbq4/08-06.pdf

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 08-06

SC Rules of Professional Conduct: 1.2; 1.6; 3.3

Facts

This inquiry was not accompanied by a statement of facts.

Questions

What are the ethical obligations of an attorney who suspects that his client is an illegal alien?

Does an attorney have a duty to inquire as to the immigration status of his clients?

What are the obligations of an attorney who knows that his client is an illegal alien?

Summary

The obligation of an attorney who suspects or knows that his client is an illegal alien are the same as the obligations of an attorney who suspects or knows that his client is engaged in any other form of ongoing criminal activity.

Opinion

The actions of an attorney who knows or suspects that his client is engaged in criminal activity are governed by SCRPC 1.6 concerning client confidentiality. This rule is designed to foster the trust and open communication that are critical to effective representation. See Rule 1.6, Comment 2. Therefore, Rule 1.6(a) prohibits disclosure of client information “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).”

Rule 1.6(b) permits, but does not require, disclosure of confidential information under certain circumstances. As related to criminal activity, Rule 1.6(b)(1) permits disclosure of confidential information when the client is planning to commit a prospective criminal act. As the Committee understands Rule 1.6(b)(1), neither a past criminal act (e.g., entering the country illegally) nor continuing status as an illegal alien constitutes a prospective criminal act within the ambit of the Rule. Similarly, the remaining exceptions set forth in Rule 1.6(b) are facially inapplicable to the circumstances indicated by the inquiry, i.e., mere knowledge or suspicion by the attorney that his client is in the country illegally.

Rule 1.2(d) prohibits a lawyer from assisting a client in conduct that the lawyer knows is criminal or fraudulent. By its terms, this Rule would prohibit an attorney from helping a client remain in the country illegally. It does not, however, prohibit the lawyer from assisting a client in legal affairs unrelated to the client’s immigration status.

An attorney generally does not have a duty to inquire into a client’s immigration status unless immigration status is relevant to the representation and the attorney has reason to suspect that the client is in the country illegally. See Rule 3.3.