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IMMIGRATION DECEMBER 13, 2024 | The Indian Eye 36

Ethical Obligations of the Attorney to Safeguard

Information About a Client’s Whereabouts with a

Removal Order Under Trump 2.0

BY CYRUS D. MEHTA AND KAITLYN United States within 90 days fol- viously given by the lawyer and obtain from an order of removal information insofar as reasonably
BOX* lowing a final order of removal, reasonably believed by the law- such as filing a motion to reopen necessary to respond to an order
an attorney may not be required yer still to be relied upon by a or reconsider. Furthermore, there by a “governmental entity claim-
he recent reelection of to cooperate with DHS or other third person, where the lawyer are several classes of noncitizens ing authority pursuant to . . . law
Donald Trump is likely to agencies by providing a nonciti- has discovered that the opinion who are authorized to remain in to compel disclosure.” The excep-
Tusher in a new era of en- zen’s whereabouts. An attorney or representation was based on the US notwithstanding a remov- tion applies even when the validi-
hanced immigration scrutiny and should not advise the client to materially inaccurate informa- al order such as recipients of the ty of the relevant law or court or-
enforcement. This shift raises a evade apprehension, but, at the tion or is being used to further Deferred Action for Childhood der, or its application, is subject to
number of ethical questions and same time, the attorney has an a crime or fraud; Arrival (DACA) program or ap- legal challenge, although, in ordi-
concerns for immigration lawyers. ethical obligation under state an- 4. to secure legal advice about plicants who have applied for and nary circumstances, compliance is
One such issue is whether immi- alogues to ABA Model Rule 1.6 compliance with these Rules or been granted Temporary Protect- not “reasonably necessary” until
gration lawyers would be required to not reveal information relating other law by the lawyer, anoth- ed Status. Those with outstanding any available legal challenge has
to provide law enforcement or a to representation of a client with- er lawyer associated with the removal orders can also remain proven unsuccessful. See Rule
government entity with the con- out the client’s consent. There are lawyer’s firm or the law firm; in the US if they have received a 1.6, cmt. [13] (“Absent informed
tact information, such as last several exceptions to the confi- 5. (i) to defend the lawyer or the stay or removal or are under su- consent of the client to comply
known address or phone number, dentiality obligation under ABA lawyer’s employees and asso- pervised release. with the order, the lawyer should
of one of their clients if asked, Model Rule 1.6 and we highlight ciates against an accusation of The other oft cited exception assert on behalf of the client non-
especially if the client has an out- the New York Rules of Profes- wrongful conduct; or (ii) to es- to Model Rule 1.6 is Rule 1.6(b) frivolous arguments that the or-
standing removal order. Lawyers sional Conduct at Rule 1.6(b), tablish or collect a fee; or (6) which permits the attorney to der is not authorized by law, the
must be prepared to handle such which proves that “a lawyer may 6. when permitted or required reveal confidential information to information sought is protected
a demand for information from reveal information relating to the under these Rules or to comply “comply with other law or a court against disclosure by an applica-
the government especially since representation of a client to the with other law or court order.” order.” What if the lawyer is asked ble privilege or other law, or the
Trump has promised to deport extent the lawyer reasonably be- Therefore, under NY Rule by ICE agents to reveal the cur- order is invalid or defective for
15 million noncitizens. Among lieves necessary”: 1.6(b)(2) the lawyer may reveal rent or former client’s address? some other reason.”).
those who can be expelled from 1. to prevent reasonably certain information “to prevent the client The authors are of the opinion In general, disclosure of cli-
the country without removal death or substantial bodily from committing a crime.” The that the lawyer is still bound by ents’ confidential information
proceedings are noncitizens who harm; client who has an outstanding Rule 1.6 and should not reveal is not “reasonably necessary” to
have outstanding removal orders. 2. to prevent the client from com- order of removal and who has the client’s information so readily. comply with law or a court order
Although INA § 243 im- mitting a crime; not left the US will potentially be New York’s analogous Rule if there are reasonable, lawful
poses criminal sanctions upon a 3. to withdraw a written or oral committing a crime under INA § 1.6(b)(6) has been exhaustively alternatives to disclosure. Even
noncitizen who fails to depart the opinion or representation pre- 243. Since disclosure under 1.6(b) interpreted in New York, N.Y. when disclosure is reasonably
(2) is not a mandatory obliga- City Bar Opinion 2017-5. This necessary, the attorney must
tion, it behooves an attorney opinion concerns a lawyer’s duty take reasonably available mea-
to follow ABA Model Rule to protect clients’ confidential sures to limit the extent of dis-
1.2(d) and its relevant state information from unauthorized closure. See, e.g., ABA Formal
analogue if advising a client disclosure during the analogous Op. 10-456 (July 14, 2010). For
who has an outstanding re- scenario of a crossing at the U.S. example, compliance with a sub-
moval order: border, provides guidance on this poena or court order to disclose
A lawyer shall not question. This opinion addresses confidential information is not
counsel a client to engage, the question of what “an attor- “reasonably necessary” until the
or assist a client, in conduct ney’s ethical obligations [are] attorney or the attorney’s client
that the lawyer knows is with regard to the protection of (or former client) has asserted
criminal or fraudulent, but confidential information prior any available non-frivolous claim
a lawyer may discuss the to crossing a U.S. border, during of attorney-client privilege. See,
legal consequences of any border searches and thereafter?” e.g., NYCBA Formal Op. 2005-3
proposed course of conduct The opinion provides the follow- (March 2005). Likewise, a lawyer
with a client and may coun- ing analysis: must ordinarily test a government
sel or assist a client to make Rule 1.6(a) prohibits attor- agency’s request for client confi-
a good faith effort to de- neys from knowingly disclosing dential information made under
termine the validity, scope, “confidential information” or color of law. See, e.g., NYCBA
meaning or application of using such information to the Formal Op. 1986-5 (July 1986)
the law. disadvantage of the client, for the (“[I]f presented with a request by
Under Model Rule lawyer’s own advantage, or for a governmental authority for pro-
1.2(d) a lawyer may discuss the advantage of a third person, duction of information pertaining
the legal consequences of unless the client gives informed to escrow accounts when a client
any proposed course of consent or implied authorization is a target of an investigation, a
conduct while not advising or the disclosure is permitted by lawyer must, unless the client has
the client to evade appre- Rule 1.6(b). Rule 1.6(b), in turn, consented to disclosure, decline
hension and can also ad- permits, but does not require, an to furnish such information on
m of vise on all the contours and attorney to use or disclose confi- the ground either that it is pro-
CYRUS D. MEHTA & PARTNERS PLLC exceptions set forth in this dential information in specified tected by the attorney-client priv-
ilege or that it has been gained in
provision. INA § 243(a)(2)
exceptional circumstances, of
contains the following ex- which only 1.6(b)(6) is relevant the course of a confidential rela-
ception: “It is not a violation to the above-described bor- tionship. . . . If disclosure is [sub-

of paragraph (1) to take any der-search scenario. sequently] compelled [by a court],
proper steps for the purpose Rule 1.6(b)(6) permits an it will not breach a lawyer’s ethical

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­ of securing cancellation of or attorney to “reveal or use” confi- obligation with respect to his cli-
€
‚   exemption from such order dential information to the extent ent’s confidences or secrets.”).
of removal or for the pur- the attorney “reasonably believes At the same time, attorneys
pose of securing the alien’s necessary . . . when permitted or need not assume unreasonable
release from incarceration required .. . to comply with other burdens or suffer significant
or custody.” Thus, it would
law or court order.” Comment
harms in seeking to test a law or
be well within the scope of [13] to Rule 1.6 recognizes that court order. See, e.g., NYSBA
2 6th Floor a lawyer’s duties to advise a this exception permits the dis- Ethics Op. 945 (Nov. 7, 2012)

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client of all relief they can closure of a client’s confidential (indicating that “when the law
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