When Lawyers for the Other Side Reveal Your Immigration Status

briefcaseLawyers tend to take very seriously their duty to keep their own client’s confidential information — otherwise known as secrets — to themselves.

But guess what: They get a little fuzzier on the question of whether that duty extends to the clients on the other side of a case, for example in a divorce or other civil case, or in a criminal case.

And in a particularly ugly example of how this can play out, the State of Washington’s Latino/a Bar Association (LBAW) has been investigating cases of “immigration retaliation” — in which an attorney “harasses, coerces, or intimidates another person using that person’s actual or perceived immigration status.”

This comes from an article called, “The Unethical Use of Immigration Status in Civil Matters,” by M. Lorena Gonzales and Daniel Ford, in the March, 2014 issue of NYLawyer.

Put in starker terms, immigration retaliation encompasses actions like notifying immigration enforcement authorities that an undocumented person is expected to arrive at a certain courthouse on a certain date; or that a woman participating in the prosecution of a domestic violence case may have no legal status. (“May” being the operative term here — the article discusses cases where the U.S. authorities, after being “tipped off,” wrongly detain the immigrant.)

Thankfully for immigrants in the State of Washington, the state bar association issued a formal ethics opinion several years ago prohibiting lawyers from threatening to report someone to the immigration authorities in order to “gain an advantage in a civil matter.”

A fat lot of good that opinion seems to have done since then, but to drive the point home, the LBAW got the Washington State Supreme Court to issue a formal comment in 2013. That comment prohibits lawyers from making inquiries into or assertions about someone’s immigration status for purposes of intimidation, coercion, or obstruction of justice.

I wonder what’s going on in the other 49 states?

In the meantime, this is a good opportunity to remind immigrants and their counsel of the availability of the U visa, which can provide temporary lawful immigration status to non-citizens assisting law enforcement.