Ask, Don’t Tell: Ethical Issues Surrounding Undocumented Workers’ Status in Employment Litigation

Christine N. Cimini - University of Denver Sturm College of Law

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The presence of an estimated 11.5 million undocumented immigrants in the United States, of which an estimated 7.2 million are working, has become a flashpoint in the emerging national debate about immigration. With undocumented immigrants participating in the workforce in such numbers, disputes between employers and employees regarding the employment relationship are inevitable. When these disputes become legal in nature, lawyers litigating these disputes are drawn into increasingly complex ethical situations. In this context, a lawyer’s actions, unless well-thought, could cause catastrophic consequences for a client including deportation, criminal charges, and/or the inability to reenter the country legally. In light of the tangle of ethical concerns and the potential consequences for clients, lawyers must be aware of their ethical obligations at all stages of legal proceedings and keep clients informed about all implications of their immigration status.

The ethical questions start with whether or not a lawyer can represent an undocumented worker in employment-related litigation. In light of prohibitions on lawyers assisting in conduct that is criminal or fraudulent, the answer to the question is not necessarily evident. Model Rules of Professional Conduct Rule 1.2(d) states, “A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent . . . .”1 In analyzing whether representation of an undocumented worker in employment related litigation assists the client in criminal or fraudulent action, it is helpful to think along a continuum. At one end of the continuum are instances in which the lawyer directly advises a client to commit a crime or fraud or directly participates in the client’s crime or fraud. For example, Rule 1.2(d) would bar representation if a lawyer advised a client to make a fraudulent conveyance or prepared documents knowing they would be used for fraudulent purposes.  On the other end of the spectrum are instances in which the client commits a crime or fraud that is so wholly unrelated to the representation that it is obvious Rule 1.2(d) would not prohibit the attorney’s representation. For example, assume a client seeks compensation under the Fair Labor Standards Act, and the state counterpart, for wages owed for completed work. In the course of representation, the client discloses to his attorney that he was previously violent toward his wife. Even assuming that his actions constituted an assault, nothing prohibits his representation in the claim for unpaid wages because Rule 1.2(d) recognizes a distinction between assisting the client in the commission of a crime or fraud and merely being aware that the client previously committed a crime or fraud.

A gray area exists in between these extremes—instances in which a lawyer’s actions can be construed as “passively assisting” the client in the commission of a crime or fraud. Consider the following factual scenarios and how they implicate the underlying policies of Rule 1.2(d).

Suppose the client enters lawfully but thereafter uses false immigration documents to obtain employment and still possesses the documents. The client seeks the lawyer’s advice and representation to recover damages and pursue reinstatement for a discriminatory termination. In this hypothetical, there are several steps the lawyer might take to comply with Rule 1.2(d). First, since it could be considered an ongoing crime to possess false immigration documents, the ethically prudent lawyer should advise the client that possession of such documents is illegal and recommend that the client no longer retain possession of them. The lawyer could then explain to the client that the ethical rules would not permit her to bring a claim seeking reinstatement based on the false immigration documents. If the client had since obtained lawful immigration status, then the lawyer could proceed with the representation, including a claim for reinstatement. If not, then she could proceed with only the claim for damages based on the discriminatory firing on the grounds that representation in a claim for damages would not further the crime of possession of false immigration documents.

In another example, assume the client enters the U.S. lawfully, but uses a fraudulent Social Security number to obtain employment and the employer thereafter fails to pay him for hours worked. Does a lawyer’s representation of the client in a wage and hour claim in this context assist him in criminal or fraudulent conduct? It is a crime to use a false Social Security number to obtain benefits but courts have found that the crime is completed when the false representation is made. Thus, representation of the client to obtain wages he is due does not directly assist him in that completed crime. There are arguments however that the representation indirectly assists the client to remain unlawfully in the United States by providing financial assistance. And, while unlawful presence in the United States is not currently a crime, it may amount to fraud. Is this type of indirect assistance that Rule 1.2(d) was designed to prohibit?

The question is best analyzed by focusing on the nexus between the lawyer’s actions and the client’s criminal or fraudulent activity. While the lawyer in this example has not directly caused the client to remain in the United States, there still exists a potential causal link between the representation and the presence. If the lawyer’s actions permit the worker to recover wages, that money may allow the worker to remain in the U.S. unlawfully or make it more attractive to do so. However, the connection between the lawyer’s actions and the client’s crime in this context is somewhat removed and in light of established legal and public policy principles should not be construed to bar representation of undocumented workers.

Our legal system is premised on the notion that the law should be knowable and that law is, by nature, public information. One of the lawyer’s roles is to provide clients access to the law so long as providing access is done within the bounds of the law. In fact, the preamble to the Model Rules of Professional Conduct talks about the lawyer’s obligation to assure access to the legal system. If Rule 1.2(d) were interpreted so broadly as to prohibit a lawyer from representing an undocumented worker in employment-related civil litigation, undocumented workers might be legally entitled to relief but unable to access the legal system.

While the legal system does recognize the integral relationship between rights and remedies, having a substantive right without the ability to enforce it is not unprecedented. Immunity from suit, standing limitations, narrower standards for private enforcement of civil rights, and legislation prohibiting access to federal courts are all examples where remedies have been restricted by the courts or Congress. However, each of these limitations, whether created by the courts or Congress, has independent rationales underlying it that do not relate to the attorney-client relationship. Rule 1.2(d), on the other hand, is a rule of professional responsibility designed to keep the provision of legal services within proper bounds. As such, the examples from other areas of law should not be determinative of the rights without a remedy argument in this context.

It could also be argued that because an undocumented worker intentionally ignores legal obligations, other remedies afforded by the legal system should be foreclosed to that individual. Like with the equitable doctrine of unclean hands, wrongdoers should not be able to avail themselves of legal protections when they have otherwise disregarded the law. On the other hand, however, the legal system is full of rights and protections, particularly procedural protections, that apply regardless of whether the litigant broke the law. For example, prisoners are entitled to challenge the conditions of their confinements as well as access the courts for general civil matters, such as divorce, and criminal defendants are entitled to a whole host of procedural protections designed to preserve their rights. Thus, a concern about clean hands would be addressed better by Congressional action that defines or limits the substantive rights of undocumented immigrants rather than through rules of professional responsibility.

Thus, while lawyers representing undocumented workers in employment-related civil litigation should be mindful of 1.2(d) prohibitions, it is unlikely that the rule would bar a lawyer’s representation of such clients.

If the ethical rules do not prohibit representation of undocumented workers in employment-related civil litigation, lawyers then confront the question of whether to protect or disclose a client’s immigration status. The lawyer’s decision to protect or disclose the information is, in the first instance, dependent upon whether or not immigration status is relevant to the underlying lawsuit. In deciding questions of relevance, courts are forced to address the interplay between immigration and labor and employment statutes and their respective policy rationales. Prior to 2002, courts confronting these issues developed a body of law that harmonized these two distinct areas of jurisprudence, finding, in many contexts, that undocumented workers were entitled to statutory protections in the workplace. This body of law shifted in 2002 when the United States Supreme Court decided Hoffman Plastic Compounds, Inc. v. National Labor Relations Board and found that back-pay for undocumented workers under the National Labor Relations Act (NLRA) was foreclosed by federal immigration policy. Since the Hoffman decision, lower courts have struggled to define the parameters of the case, and, while the jurisprudence is still evolving, many courts have limited Hoffman’s reach and found undocumented workers entitled to seek legal remedies for workplace violations under a variety of statutes.

If immigration status is relevant to the underlying litigation, the information will be discoverable unless the client is entitled to claim a privilege. Assuming immigration status is relevant, the most likely claim of privilege would be a client’s claim of privilege against self-incrimination. Both the employer and employee in an employment-related civil case brought by an undocumented worker might have reason to claim the Fifth Amendment privilege. It is unlawful to enter the country without inspection, to present false documents upon entry, or to use false documents to obtain employment. Thus, information sought from the employee through discovery or questions asked at trial could lead to criminal liability. Under the Immigration Reform and Control Act (IRCA), employers can be criminally liable for knowingly hiring undocumented workers. An employee could ask questions in discovery regarding the employer’s general practice of employee verification and the specifics of other employee immigrant workers, the answers to which could lead to criminal liability.

In light of the courts’ discretion to determine the impact that claiming privilege will have on the litigation, it is difficult to predict the precise consequences for an undocumented worker. However, lawyers should advise clients that pleading the Fifth Amendment privilege against self-incrimination might result in certain claims or evidence being barred or the action being dismissed in its entirety. Lawyers should also advise clients of the potential consequences disclosure of immigration status could have on the client outside of the pending litigation, including potential deportation, criminal charges and bars upon reentry into the U.S. Ultimately, once informed of the potential consequences, this is a decision for the client to make.

If, on the other hand, immigration status is determined not relevant to the underlying litigation, the client’s immigration status would constitute confidential information and lawyers would be obligated to protect this information unless they were permitted or mandated to disclose it. The Model Rules of Professional Conduct contain a strong obligation to keep client information confidential as well as rules designed to prohibit lawyers from counseling or assisting a client in fraudulent or criminal activities. Proposed and existing legislation that characterizes an undocumented worker’s entry, presence or work in this country as criminal or fraudulent, thus, creates a tension between the lawyer’s confidentiality obligations and the potential for permissive or mandatory disclosure.

Pursuant to Rule 1.6, all information relating to the representation,2 whether it comes from the client or another source, is confidential. In the absence of implied authorization or informed consent to disclose, Rule 1.6 mandates that the information be kept confidential unless one of six express exceptions apply. In the absence of a court order, which constitutes one of the exceptions, none of the other exceptions permits the disclosure of immigration status and related client actions. There is no potential for death or substantial bodily harm; the issues do not involve the lawyer’s compliance with the rules of professional conduct; and there is no dispute between the lawyer and the client related to the representation. The remaining two exceptions involve disclosure to prevent a client from committing a crime or fraud resulting in substantial injury to the financial interests of a third party, or to mitigate damages that flow from such crime or fraud. These exceptions appear inapplicable to the undocumented worker dilemma because there is no substantial injury to the financial interests of a third party. Additionally, in order for this exception to apply, the lawyer has to be involved in the client’s crime or fraud. It is unlikely that mere representation of an undocumented worker in a civil employment matter would rise to the level of involvement contemplated by this exception.

Assuming Rule 1.6 requires lawyers to keep immigration status confidential, are there other rules that mandate or permit disclosure? Two rules address the lawyer’s obligation to disclose if a client is engaged in criminal or fraudulent acts. First, Rule 3.3(b) requires lawyers representing clients they know are intending to engage or are engaging in criminal or fraudulent conduct to take reasonable remedial measures, including disclosure of such information to the tribunal. Pursuant to that rule, only information “related to the proceedings” must be disclosed to the tribunal. The comments to Rule 3.3(b) help to define “related to the proceedings” by specifically identifying “criminal or fraudulent conduct that undermines the integrity of the adjudicative process.”3 The comments further define the term by identifying the following as conduct that would be implicated by Rule 3.3(b): “bribing, intimidating or otherwise unlawfully communicating with a witness, juror, court official or other participant in the proceeding, unlawfully destroying or concealing documents or other evidence or failing to disclose information to the tribunal when required by law to do so.”4 Rule 3.3(b) is concerned with the rules of the game and the mechanics of trial, as opposed to the substance of the underlying claims.

The other relevant provision, Rule 4.1(b), requires lawyers to disclose material facts in order to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6. Given that the application of these rules arises in instances where immigration status has been determined not to be relevant to the underlying proceedings, it is extremely likely that the disclosure provisions of 4.1(b) do not apply. On the other hand, the term “material” arguably could be construed more broadly than “relevant.” If this were the case, then the lawyer would have to proceed to analyze the additional limitations imposed by 4.1(b). One limitation set forth in Rule 4.1(b) is that a lawyer shall disclose otherwise confidential information only when “necessary to avoid assisting” a crime or fraud. As analyzed above, it is unlikely that mere representation of an undocumented worker in an employment-related civil matter would amount to assisting in the commission or furtherance of a crime or fraud. Further, even if the lawyer’s actions were construed as assisting the client in a crime or fraud, Rule 4.1(b) states that the lawyer may resist disclosure of material if it is otherwise protected by Rule 1.6.

To understand the contours of a lawyer’s ethical obligations, it is helpful to apply these rules to a hypothetical. Assume the client is committing an ongoing crime that is related to the employment situation. The client enters lawfully, but thereafter uses false immigration documents to obtain employment and still possesses the documents. The employee seeks the lawyer’s assistance for a discriminatory termination. The lawyer agrees to represent the client after advising the client that possession of false immigration documents is unlawful and explaining to the client that she will not seek reinstatement or back-pay in the claim. Does the lawyer have an obligation to disclose the information about false work papers to a third party under Rule 4.1(b) or to the tribunal under Rule 3.3(b)?

Possession of false immigration documents to obtain work is likely to be considered a continuing crime. Since these are cases in which immigration status has been determined not to be relevant to the underlying proceedings, the lawyer would be barred from disclosing it to third parties under Rule 4.1(b) because it is not a “material” fact. Even if it were determined that status was related or material to the proceeding, Rule 4.1 still requires there to be a relationship between the crime or fraud and the lawyer’s actions. Specifically, the lawyer shall disclose confidential information only when necessary to avoid assisting in the commission or furtherance of the client’s crime or fraud. So long as the lawyer advises the client that possession of such documents is illegal, does not seek reinstatement or back-pay, and seeks only compensatory damages, it is difficult to construe the lawyer’s representation of the client in a claim for discriminatory termination as furthering the client’s use of false papers to obtain employment. Further, disclosure to third parties under Rule 4.1(b) would be barred because the related information is confidential under Rule 1.6 and no exceptions apply.

Pursuant to Rule 3.3(b), is the use of false immigration documents to obtain work “related to the proceedings”? While the use of false immigration documents to obtain work might subject the client to criminal and civil liability, it does not, by itself, relate to the proceedings or undermine the integrity of the adjudicative process as those terms are defined in Rule 3.3(b). If the client decided to make false statements under oath or present false evidence, and the lawyer was unable to dissuade the client, the lawyer would be required to comply with the disclosure requirements set forth in 3.3(b).

Thus, in general, Rule 4.1(b) does not appear to mandate disclosure to third parties because of the Rule 1.6 limitations. Disclosure to a tribunal under Rule 3.3(b) would only be mandated if status were determined to be “related to the proceedings.” Given the meaning of “related to the proceedings” and the fact that these issues will arise only where status is found not relevant to the underlying claim, a mandated disclosure to the tribunal pursuant to Rule 3.3(b) would seem to be required only if the client took some subsequent action in the context of the proceedings that affected the integrity of the adjudicative process, such as lying on the stand or presenting false evidence. However, if the lawyer counsels the client appropriately, disclosure to the tribunal under Rule 3.3(b) should not be necessary.

Lawyers representing employers will also be affected by the immigration status of opposing parties. For a lawyer representing an employer, ethical issues are most likely to arise when the lawyer inquires about the employee’s immigration status in an attempt to intimidate the employee, either during discovery or at trial. In order to evaluate any ethical limitations, the lawyer first needs to assess whether immigration status is relevant to the underlying litigation. If the question of relevance has not been decided by a court, or if a court has decided that status is relevant, inquiry into the opposing party’s immigration status would likely be permissible and ethical. If, however, immigration status is not relevant to the underlying litigation, several ethical rules might limit inquiry by the employer’s attorney.

The first limitation stems from Rule 4.4(a) which states that “a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.”5 Where immigration status is not relevant, the question is whether the employer has a “substantial purpose” to inquire. Given the information’s lack of substantive consequence to the litigation, the inquiry likely lacks “substantial purpose” and instead is likely being used to gain unfair advantage in the litigation. Further, Rule 8.4(d) states that it is professional misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of justice.”6 The comments help define the parameters of this rule and state that “[a] lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice.”7 When immigration status is not relevant, intentional inquiry into such information may reflect bias or prejudice based upon national origin. And, if the inquiry deters the employee from proceeding with her claims, it could be construed as prejudicial to the administration of justice.

A second, but somewhat related, limitation can be found in Rule 3.4(d), which states that a lawyer shall not, “in pretrial procedure, make a frivolous discovery request.”8 Again, if a court has determined that immigration status is not relevant to the underlying litigation, inquiry by the employer’s attorney as to the employee’s immigration status could be viewed as a frivolous discovery request under Rule 3.4(d).

A third limitation involves the use of threats of criminal prosecution as a way to gain advantage in a civil action. This could happen expressly if the employer threatens to report the worker to police or immigration officials. It could also arise implicitly through questions about immigration status in the civil case. Under the Model Rules of Professional Conduct, a threat to bring criminal charges to advance a civil claim would violate the Model Rules if the criminal wrongdoing was unrelated to the client’s civil claim, if the lawyer did not believe both the civil claim and the potential criminal charges to be well-founded, or if the threat constituted an attempt to exert or suggest improper influence over the criminal process.9

In this context, since it has already been determined that immigration status is not relevant to the underlying litigation, immigration status may not be sufficiently related to the claim to insulate the lawyer from improper ethical conduct. Further, in the absence of a relationship between the threat and the underlying claim, the actions of the employer’s lawyer might be construed as extortion, which is a disciplinary offense under Rule 8.4. The Model Penal Code defines extortion as obtaining the property of another through threats, including threats to accuse another of a criminal offense. However, if the employer has an honest belief that the charges were well founded, the actions would not constitute extortion.

If the employer threatens criminal prosecution without any actual intent to proceed with such a claim, the lawyer’s actions could violate Rule 4.1, which imposes upon lawyers a duty to be truthful when dealing with others. And, even if the lawyer’s actions do not amount to extortion because they are based upon an honest belief that the charges are well founded, if his purpose in making the threat is merely to harass a third person, his actions could constitute a violation of Rule 4.4(a).

This piece identifies some of the issues that arise in the context of litigating employment-related disputes involving undocumented workers and attempts to apply the rules of professional conduct to help resolve these issues. Though at times the analysis of these issues requires an application of the professional rules that borders on the hyper-technical, a thorough and precise application of the rules ultimately results in a set of guidelines that are simple enough to be useful to practitioners. The correct application of these guidelines, and of the rules of professional conduct, will guide lawyers in the appropriate handling of information related to the employee’s immigration status.dingbat



Copyright © 2009 Stanford Law Review.

Christine N. Cimini is Associate Professor of Law at University of Denver, Sturm School of Law.

This Legal Workshop Editorial is based on the following full-length Article:   Christine N. Cimini, Ask, Don’t Tell: Ethical Issues Surrounding Undocumented Workers’ Status in Employment Litigation, 61 STAN. L. REV. 355 (2008).

  1. MODEL RULES OF PROF’L CONDUCT R. 1.2(d) (2008).
  2. In this context, the term “relating to the representation” as defined in Rule 1.6 should be construed as much broader than relevant to the litigation.
  3. MODEL RULES OF PROF’L CONDUCT R. 3.3 cmt. 12.
  4. Id.
  6. Id. R. 8.4(d).
  7. Id. R. 8.4 cmt. 3.
  8. Id. R. 3.4(d).
  9. See ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 92-363 (1992).

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