The Unethical Use of Immigration Status in Civil Matters

"[T]he Washington Supreme Court unanimously adopted a formal Comment to RPC 4.4(a) to provide guidance on the use of immigration status in civil matters. The comment became effective on Sept. 1, 2013.

The comment notes that “[i]ssues involving immigration status carry a significant danger of interfering with the proper functioning of the justice system.” Immigrants participating in the civil justice system are vulnerable to efforts to take advantage of their actual or perceived immigration status. When immigrants fear that they, their family members, or friends may be deported, their ability to bring meritorious claims is diminished. Using or threatening to use immigration status to intimidate, coerce, or obstruct a participant in a civil matter undermines the justice system.

The new comment addresses the application of RPC 4.4(a) to the use of actual or perceived immigration status in a civil matter. Rule 4.4(a) states: “In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person . . . .” The new comment clarifies that RPC 4.4(a) prohibits “a lawyer’s assertion or inquiry about a third person’s immigration status when the lawyer’s purpose is to intimidate, coerce, or obstruct that person from participating in a civil matter.” The comment recognizes that immigration-related abuse can take place both through assertions (e.g., “I could call immigration”) and through inquiries (e.g., “Do you really want to expose your illegal
status by testifying in this case?”). The new comment also states that a lawyer may violate the rule by an implied assertion that is effectively the same as an express assertion." - M. Lorena González and Daniel Ford, Mar. 2014.