Ask, don't tell: Ethical issues surrounding undocumented workers' status in employment litigation

Stanford Law Review

Volumn 61, Issue 2, 2008, Pages 355-415

  Cimini, Christine N ^a  

^a UNIVERSITY OF DENVER   (United States)

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EID: 62549083937     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (605)

1. JEFFREY S. PASSEL, PEW HISPANIC CTR., THE SIZE AND CHARACTERISTICS OF THE UNAUTHORIZED MIGRANT POPULATION IN THE U.S.: ESTIMATES BASED ON THE MARCH 2005 CURRENT POPULATION SURVEY 1 (2006), http://www.pewhispan.ic.org/fi. les/reports/61.pdf (explaining that as of March 2005 there were 11.1 million unauthorized immigrants in the United States).
2. Id. at ii (explaining that approximately 7.2 million unauthorized migrants were employed as of March 2005, which accounts for approximately 4.9% of the civilian labor force).
3. See Haya El Nasser, Family, Better Jobs Pull Mexicans to USA, USA TODAY, Dec. 7, 2005, at A3
4. S. Mitra Kalita & Krissah Williams, Help Wanted as Immigration Faces Overhaul: Congress Considers New Rules, and Businesses Worry About Finding Workers, WASH. POST, Mar. 27, 2006, at A1 ("Businesses say it is hard to persuade Americans to perform the unskilled jobs that immigrants easily fill.")
5. Dave Montgomery, Bush Presses Immigration Proposal: Illegal Aliens to Get Chance to Work Here 6 Years Before Return, PITTSBURGH POST-GAZETTE, Oct. 19, 2005, at All ("[F]oreign workers are needed to fill jobs that U.S. citizens often, bypass, including unskilled labor and seasonal agricultural work.")
6. Mary Lou Pickel & Matt Kempner, Reliance on Illegals Props up Economy: Law Would Hit Industry, Consumers, ATLANTA J. & CONST., Mar. 23, 2006, at Al ("[T]he hotel industry in Georgia has become a magnet for workers from, other countries who are willing to take tough, low-paying jobs, such as housekeeping . . . .").
7. See Nicholas Riccardi, States Take On Border Issues, L.A. TIMES, Jan. 16, 2006, at Al ("In New Hampshire . . . two sheriffs last year began arresting illegal immigrants, reasoning that their presence violated state laws against criminal trespass.")
8. John. Turner Gilliland, Arizona Prosecutor Has New Twist on Prosecuting Illegal Aliens, CNSNEWS.COM, Mar. 15, 2006, http://www.cnsnews.com/Nation/Archive/200603/NAT20060315b.html (describing Arizona Maricopa County Attorney's filing of felony conspiracy charges against illegal, immigrants under Arizona's antihuman smuggling law).
9. REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, 119 Stat. 231, 302-23 (preventing states from issuing standard federally recognized driver's licenses to undocumented immigrants; creating additional proof requirements in asylum claims; eliminating habeas corpus review of removal orders and expanding the grounds of inadmissibility). On December 16, 2005, the United States House of Representatives passed the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005, sponsored by James Sensenbrenner (R-WI) and Peter King (R-NY). H.R. 4437, 109th Cong. (2005). The bill includes a provision that makes "unlawful presence" in the United States a federal crime. Id. §§ 201, 203. For a description of additional measures set forth in. H.R. 4437
10. see NAT'L IMMIGRATION FORUM, THE SENSENBRENNER-KING BILL'S "GREATEST MISSES" (2006), http://www.immigrationforum.org/documents/ policyWire/legislation/SenseKi.ngGlance.pdf (summarizing some of the provisions of the bill including: a provision that makes any relative, employer, coworker, clergyman, or friend of an undocumented immigrant into an "alien smuggler" and a criminal; a provision that makes it harder for legal permanent residents to become citizens; a provision that requires employers to verify workers' legal status; a provision that denies admission to nationals of certain countries; a provision that authorizes state and local police to enforce federal immigration laws; and various provisions that erode due process, including a provision that reverses the burden of proof).
11. Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 884 (1984) (holding that undocumented workers were considered employees under the National Labor Relations Act)
12. Equal Employment Opportunity Comm'n v. Hacienda Hotel, 881 F.2d 1504, 1517 (9th Cir. 1989) (finding that the district court did not err in awarding undocumented workers back-pay under Title VII)
13. Rios v. Enter. Ass'n Steamfitters Local Union 638, 860 F.2d 1168, 1172 (2d Cir. 1988) (permitting undocumented workers remedies under Title VII prior to passage of the IRCA)
14. In re Reyes, 814 F.2d 168, 170 (5th Cir. 1987) (finding that both undocumented and documented workers are covered under the Fair Labor Standards Act (FLSA))
15. Local 512, Warehouse & Office Workers' Union v. NLRB, 795 F.2d 705, 716 (9th Cir. .1986) (finding that undocumented workers are entitled to the protections afforded under the NLRA)
16. Bevles Co. v. Teamsters Local 986, 791 F.2d 1391, 1392-93 (9th Cir. 1986) (upholding an arbitrator's award of back-pay and reinstatement to undocumented workers prior to passage of IRCA)
17. Donovan v. Burgett Greenhouses, Inc., 759 F.2d 1483, 1485 (10th Cir. 1985) (allowing for the enforcement of the FLSA on behalf of undocumented workers)
18. NLRB v. Apollo Tire Co., 604 F.2d 1180, 1183 (9th Cir. 1979) (finding that undocumented workers qualify as employees under the NLRA and are entitled, to seek relief under the act).
19. But see Del Rey Tortilleria, Inc. v. NLRB, 976 F.2d 1115, 1121 (7th Cir. 1992) (interpreting SureTan as disallowing undocumented workers back-pay under the NLRA).
20. 535 U.S. 137, 151-52 (2002).
21. Workers who are not paid can seek recovery of wages. See, e.g., Galaviz-Zamora v. Brady Farms, Inc., 230 F.R.D. 499, 501-02 (W.D. Mich. 2005)
22. Trejo v. Broadway Plaza Hotel, No. 04 Civ. 4005, 2005 U.S. Dist. LEXIS 17133, at *2-3 (S.D.N.Y. Aug. 16, 2005)
23. Cortez v. Medina's Landscaping, No. 00 C 6320, 2002 U.S. Dist. LEXIS 18831, *2-3 (N.D. 111. Sept. 30, 2002)
24. Flores v. Amigon, 233 F. Supp. 2d 462, 463-64 (E.D.N.Y. 2002)
25. Singh v. Jutla, 214 F. Supp. 2d 1056, 1060-61 (N.D. Cal. 2002)
26. Zeng Liu v. Donna Karan Int'l, Inc., 207 F. Supp. 2d 191, 192 (S.D.N.Y. 2002). Those who are discriminated against can seek relief under anti-discrimination statutes.
27. Rivera v. Nibco, Inc., 364 F.3d 1057, 1066-69 (9th Cir. 2004), cert. denied, 125 S. Ct. 1603 (2005) (holding that Hoffman does not apply to Title VII claims)
28. Escobar v. Spartan Security Service, 281 F. Supp. 2d 895, 897 (S.D. Tex. 2003) (finding that Hoffman did not preclude all remedies for undocumented workers under the NLRA or other comparable federal labor statutes)
29. De La Rosa v. Northern Harvest Furniture, 210 F.R.D. 237, 238-39 (C.D. Ill. 2002) (reasoning, in dicta, that given the differences between the authority of federal courts and the NLRB, as well as Title VII precedent favoring back-pay, Hoffman was not dispositive of issues raised by the defendant)
30. Lopez v. Superflex, Ltd., No. 01 Civ. 10010, 2002 U.S. Dist. LEXIS 15538, at *3-4 (S.D.N.Y. Aug. 21, 2002) (rejecting employer's argument that in order to state a claim of disability discrimination, the plaintiff was required to plead that he was a documented alien). Those injured on the job can pursue personal injury remedies or workers' compensation.
31. See, e.g., Farmers Bros. Coffee v. Workers' Comp. Appeals Bd., 35 CaI. Rptr. 3d 23, 27-30 (Ct. App. 2005)
32. Safeharbor Employer Services I, Inc. v. Velazquez, 860 So. 2d 984, 985-86 (FIa. Dist. Ct. App. 2003)
33. Earth First Grading v. Gutierrez, 606 S.E.2d 332, 334-36 (Ga. Ct. App. 2004)
34. Cont'l PET Techs., Inc. v. Palacias, 604 S.E.2d 627, 630-31 (Ga. Ct. App. 2004); Wet Walls, Inc. v. Ledezma, 598 S.E.2d 60, 63-64 (Ga. Ct. App. 2004)
35. Design Kitchen & Baths v. Lagos, 882 A.2d 817, 829-30 (Md. 2005)
36. Correa v. Waymouth Farms, Inc., 664 N.W.2d 324, 329-31 (Minn. 2003)
37. Rosa v. Partners in Progress, Inc., 868 A.2d 994, 997, 1001 (N.H. 2005)
38. Cherokee Indus, v. Alvarez, 84 P.3d 798, 799, 801 (Okla. Civ. App. 2003)
39. Tyson Foods, Inc. v. Guzman, 116 S.W.3d 233, 244, 247 (Tex. Ct. App. 2003).
40. Rebecca Smith, Immigrants' Right to Workers' Compensation, 40 TRIAL 48, 49 (Apr. 2004) ("Latino immigrants are now far more likely to be killed on the job than their counterparts of European, ancestry. From 1992 to 2000, fatalities among Latino immigrants rose by 67 percent-at a time when the number of fatal occupational injuries to all workers declined by 5 percent.") (citing BUREAU OF LABOR STATISTICS, CENSUS OF FATAL OCCUPATIONAL INJURIES, FATAL OCCUPATIONAL INJURIES TO FOREIGN- BORN WORKERS BY SELECTED WORKER CHARACTERISTICS (2002); CTRS. FOR DISEASE CONTROL & PREVENTION, PROTECTING THE SAFETY AND HEALTH OF IMMIGRANT WORKERS (2002), http://www.cdc.gov/programs/workforc22.htm
41. AFL-CIO, DEATH ON THE JOB: THE TOLL OF NEGLECT 9-10 (12th ed. 2003), http://www.aflcio.org/issues/ safety/memorial/upload/ death-2003-intro.pdf)
42. Rebecca Smith, Amy Sugimori & Luna Yasui, Low Pay, High Risk: State Models for Advancing Immigrant Workers' Rights, 28 N.Y.U. REV. L. & Soc. CHANGE 597, 598-600 (2003-2004) (detailing the statistics showing that immigrant workers are at greater risk of work-related injuries and death than their counterparts).
43. See Christopher Ho & Jennifer C. Chang, Drawing the Line After Hoffman. Plastic Compounds, Inc. v. NLRB: Strategies for Protecting Undocumented Workers in the Title VII Context and Beyond, 22 HOFSTRA LAB. & EMP. L.J. 473, 477 & n.12 (2005) (stating that "the conditions under which these persons work are-owing to their precarious circumstances-typically substandard, rife with exploitation by avaricious employers and, sometimes, astoundingly appalling in the extent and depth of their cruelty" and providing examples of such exploitation).
44. 8 U.S.C. § 1227(a)(1)(B) (Supp. V 2006) (making individuals who are present in the United States without lawful status deportable); see Rivera, 364 F.3d at 1064 ("While documented workers face the possibility of retaliatory discharge for an assertion, of their labor and civil rights, undocumented workers confront the harsher reality that, in addition to possible discharge, their employer will likely report them to the INS and they will be subjected to deportation proceedings or criminal, prosecution.").
45. Stepped-up verification has been included in many of the proposed bills designed to address immigration reform. See, e.g., The Secure America Through Verification and Enforcement ("SAVE") Act of 2007, H.R. 4088, S. 2368, 110th Cong. (2007) (expanding the already existing Basic Pilot/E-Verify employment eligibility verification program to require participation by all employers and all workers in the country); The Comprehensive Immigration Reform Act of 2006, S. 2611, 109th Cong. (2006) (creating a new Electronic Employment Verification System. (EEVS) for checking the employment eligibility of every newly hired worker in the United States).
46. Border Protection, Antiterrorism, and Illegal Immigration Control Act, H.R. 4437, 109th Cong. §§ 201, 203 (2002).
47. Id. § 202 (expanding the definition of "smuggling" to include a person, who knowingly "assists" an undocumented immigrant to "reside or remain" in the United States, even if that person does not encourage or induce the immigrant to come to or reside in the United States unlawfully).
48. . NAT'L IMMIGRATION LAW CTR., LITIG. GUIDE FOR IMMIGRANT WORKER ADVOCATES § 111(B)(2) (2007).
49. Throughout this Article, I refer to the American Bar Association (ABA) Model Rules of Professional Conduct in analyzing the ethical questions raised herein. While the ABA Model Rules themselves are not binding on any one state, the large majority of states have adopted them. See Alphabetical List of States Adopting Model Rules, http://www.abanet.org/cpr/mrpc/alpha-states.html (last visited Dec. 24, 2007). To the extent a state has adopted professional responsibility rules that differ from the Model Rules, the analysis might differ as well.
50. A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith, effort to determine the validity, scope, meaning or application of the law. MODEL RULES OF PROF'L CONDUCT R. 1.2(d) (2007).
51. See infra Port II.
52. Generally the Fifth Amendment privilege against self-incrimination can be invoked "whenever information sufficiently relevant to civil liability to be discoverable provides even, a clue that might point a hypothetical government investigator toward evidence of criminal conduct." Robert Heidt, The Conjurer's Circle-The Fifth Amendment Privilege in Civil Cases, 91 YALE L.J. 1062, 1065 (1982).
53. Model Rule 1.6 contains several exceptions that are arguably relevant to this context. First, Rule 1.6(b)(2) is designed, to prevent future client misconduct and allows attorneys to disclose if failure to do so will result in substantial injury to the financial interests or property of another. MODEL RULES OF PROF'L CONDUCT R. 1.6(b)(2) (2007). Second, Rule 1.6(b)(3) is designed to permit disclosure to mitigate or rectify the type of harm, described in Rule 1.6(b)(2).
54. Id. R. 1.6(b)(3). Finally, Rule 1.6(b)(6) addresses a lawyer's disclosure obligation pursuant to a court order. Additionally, Rule 4..1(b) sets forth a lawyer's obligation to disclose to third parties.
55. Id. R. 4.1(b). Since Rule 4.1(b) has many conditions that must be met before disclosure, I include this in the category of permissive or, more accurately, conditional disclosure.
56. My use of the term, "mandatory disclosure provisions" includes a lawyer's obligation to disclose to the tribunal under Model Rule 3.3(b). Id. R. 3.3(b).
57. Id.
58. Id. R. 4.1(b).
59. HAZARD & HODES, THE LAW OF LAWYERING 37-6 to 37-8 (3d ed. Supp. 2008) (stating that rule 4.1(a) "still prohibits only statements that are materially false").
60. Model Rule 3.3(b) requires only that information "related to the proceedings" be disclosed to the tribunal. MODEL RULES OF PROF'L CONDUCT R. 3.3(b) (2007).
61. MODEL RULES OF PROF'L CONDUCT R. 1.2(d) (2007) (stating that a lawyer cannot counsel or assist a client in. perpetrating a crime or fraud)
62. id. R. 4.1(b) (stating that a lawyer shall disclose only when necessary to avoid assisting with a client's crime or fraud)
63. HAZARD & HODES, supra note 24, at 5-6 to 5-7 ("Rules 3.3(a)(3) and 4.1(b) are of like effect, for together they provide that a lawyer must disclose material facts to a tribunal or to a third party, even if the information would otherwise be confidential, when such action is necessary to avoid either participating in or passively assisting a client's fraud through silence.").
64. While this Article raises some ethical issues that lawyers for employers might face, the main focus is on the ethical, issues involved in representing undocumented employees.
65. For a discussion of ethical limitations on the employer, see infra notes 230-44 and accompanying text.
66. MODEL RULES OF PROF'L CONDUCT R. 1.2(d) (2007).
67. Prior to adoption, of the Model Rules of Professional Conduct, the ABA Model Code of Professional Responsibility stated that "a lawyer shall not counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent." MODEL CODE OF PROF'L RESPONSIBILITY at DR 7-102(A)(7) (1981). This rule was much broader in its application as "illegal" could be construed as a larger category of actions than merely criminal.
68. HAZARD & HODES, supra note 24, at 5-37 to 5-38
69. [I]t is frequently the case that educating the client about the law may function as the equivalent of suggesting or assisting in its violation. It is therefore important to note that the explicit phrasing of the rule appears to deal with this overlap directly and clearly by indicating that communicating 'the law' is always acceptable, and by itself is not to be considered suggestion or assistance. Stephen L. Pepper, Counseling at the Limits of the Law: An Exercise in the Jurisprudence and Ethics of Lawyering, 104 YALE L.J. 1545, 1588 (1995)
70. see also MODEL RULES OF PROF'L CONDUCT R. 1.2 cmt. 9 (2007) (noting that even if the client uses the advice of the lawyer in the course of criminal or fraudulent actions it does not by itself make the lawyer "a party to the course of action").
71. By "continuing offense" I mean to refer to that group of offenses that criminal law defines as ongoing. See United States v. Midstate Horticultural Co., 306 U.S. 161, 166 (1939) ("[A continuing offense is a] continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy. Where such an act or series of acts runs through several jurisdictions, the offense is committed and cognizable in each.")
72. State v. Maidwell, 50 P.3d 439, 441 (Idaho 2002) (defining a continuing offense as "a continuous, unlawful act or series of acts set in motion by a single impulse and operated by unintermittent force") (citing State v. Barlow's, Inc., 729 P.2d 433, 436 (Idaho Ct. App. 1986))
73. State v. Ramirez, 633 N.W.2d 656, 660 (Wis. Ct. App. 2001) (defining a continuing offense as '"one which consists of a course of conduct enduring over an extended period of time'"
74. (quoting John v. State, 291 N.W.2d 502 (Wis. 1980))
75. see also J. Michael Callan & Harris David, Professional Responsibility and the Duty of Confidentiality: Disclosure of Client Misconduct in an Adversary System, 29 RUTGERS L. REV. 332, 363 (1976) (defining a continuing crime as one "which, though committed in the past, has ramifications or effects which continue into the present or future").
76. But see Nancy E. Stuart, Child Abuse Reporting: A Challenge to Attorney-Client Confidentiality, 1 GEO. J. LEGAL ETHICS 243, 253 (1987) (arguing that the definition articulated by Callan & David is too narrow and should instead include continuing acts that are crimes in the future).
77. Unlawful presence in the United States, in and of itself, is not currently a crime, but it is a deportable offense. 8 C.F.R. § 287.3 (2007)
78. see also Gates v. L.A. Superior Court, 238 Cal. Rptr. 592, 603 (Ct. App. 1987) (explaining that aliens' being in the United States in violation of the immigration laws is a civil offense and exclusively within the federal domain).
79. 8 U.S.C. § 1326(a) (2000). A person found to have committed an offense under this statute shall be imprisoned for a period of ten years. Id. § 1326(b)(3).
80. Id. §§ 1325(a)(2)-(3) (defining as criminal the entry into the country by eluding examination as well, as entry by use of false or misleading representation). A person found to have committed an offense under this statute can be fined or imprisoned not more than two years, or both.
81. Id. § 1325(a)(3).
82. Id. §§ 1302, 1306 (stating that any alien who willfully fails to register after thirty days can be guilty of a misdemeanor and fined up to $.1000 or imprisoned up to six months or both).
83. 18 U.S.C. §1546(a) (2000). A person found to have committed an. offense under this statute shall be fined or imprisoned not more than ten years for the first offense. Id.
84. 42 U.S.C. §§ 408(a)(7)-(8) (2000). A person can be fined or imprisoned for not more than five years, or both, for such an offense. Id
85. 8 U.S.C. § 1227(a)(1)(B) (Supp. V 2006).
86. United States v. Payne, 978 F.2d 1177, 1180(10th Cir. 1992) (finding that falsely representing a social security number is not a continuing offense)
87. United States v. RinconJimenez, 595 F.2d 1192, 1194 (9th Cir. 1979) (finding that entering by eluding examination or inspection was not a continuing crime, but instead one that was completed at the time an unauthorized alien gains entry without inspection)
88. United States v. Joseph, 765 F. Supp. 326, 330 (E.D. La. 1991) (finding that the crime of using a false social security number with the intent to deceive is completed when the false representation is made).
89. Rincon-Jimenez, 595 F.2d at 1193-94
90. see also United States v. Pruitt, 719 F.2d 975, 978 (9th Cir. 1983) ("A violation, of 8 U.S.C. § 1325 occurs only at the time of entry and does not continue thereafter.")
91. Gates v. L.A. Superior Court, 283 Cal. Rptr. 592, 602-03 (Ct. App. 1987) (citing Rincon-Jimenez for the proposition that a violation of 8 U.S.C. § 1325(a)(2) has been held to be "consummated at the time an alien gains entry through an unlawful point and does not submit to these examinations").
92. Payne, 978 F.2d at 1180-81 (finding that using a false social security number for tax-evasion purposes, with intent to deceive, was not a continuing offense)
93. Joseph, 765 F. Supp. at 330 (finding that use of a false social security number on a credit application for a bank loan, with intent to deceive, was not a continuing offense).
94. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1047 n.3 (1984) (finding that willful failure to register after thirty days constitutes a continuing crime)
95. United States v. RuelasArreguin, 219 F.3d 1056, 1061 (9th Cir. 2000) (finding that a violation of § 1326 constitutes a "continuing offense").
96. 18 U.S.C. § 1546 (2000).
97. 397 U.S. 112, 115 (1970) (analyzing the doctrine of continuing offense in the context of statute of limitations issues and explaining that the doctrine should apply only in limited circumstances because of the tension that exists between the statute of limitations and the continuing-offense doctrine).
98. Id. at 115-16 (construing a statute and regulation that required male citizens between the ages of 18 and 26 to register for the draft).
99. See United States v. Winnie, 97 F.3d 975, 976 (7th Cir. 1996) (finding unlawful possession of a cheetah traded in violation of the Convention on International Trade in Endangered Species of Wild Fauna and Flora was a continuing offense)
100. United States v. Blizzard, 27 F.3d 100, 101 (4th Cir. 1994) (finding that the crime of receiving and concealing stolen government property was a continuing offense)
101. United States v. Jones, 533 F.2d 1387, 1391 (6th Cir. 1976) (finding that possession of a firearm constituted a continuing offense)
102. United States v. Cunningham, 902 F. Supp. 166, 168 (N.D. Ill. 1995) (finding that possession of stolen mail was a continuing offense).
103. MODEL RULES OF PROF'L CONDUCT R. 1.0(d) (2007).
104. 9 STUART M. SPEISER ET AL., THE AMERICAN LAW OF TORTS § 32:4, at 212-13 (1992) ("[I]n very general terms [fraud] can be said to comprise anything calculated to deceive, including all acts, omissions, and concealments involving a breach of legal, or equitable duty, trust, or confidence justly reposed, resulting in damage to another or by which an undue and unconscionable advantage is taken of another."). For examples of how some states define fraud
105. see Weinstein v. Weinstein, 882 A.2d 53, 62-63 (Conn. 2005): "Fraud consists in deception practiced in order to induce another to part with property or surrender some legal right, and which accomplishes the end designed.... The elements of a fraud action are: (1) a false representation was made as a statement of fact; (2) the statement was untrue and known to be so by its maker; (3) the statement was made with the intent of inducing reliance thereon; and (4) the other party relied on the statement to his detriment...."
106. Id. (quoting Mattson v. Mattson, 811 A.2d 256, 259 (Conn. App. Ct. 2002))
107. see also Vigil v. Fogerson, 126 P.3d 1186, 1197 (N.M. Ct. App. 2005) ("[F]raud is defined as 'a false representation, knowingly or recklessly made, with the intent to deceive, on which the other party acted to his [or her] detriment.'"
108. (quoting Robertson v. Carmel Builders Real Estate, 92 P.3d 653, 662 (N.M. Ct. App. 2004)))
109. McCarthy v. Wani Venture, 251 S.W. 3d. 573, 585 (Tex. Ct. App., 2007) ("[A]ctual fraud can be the concealment of material facts or the failure to disclose a material fact.").
110. See, e.g., Townsend v. State Bar of Cal., .197 P.2d 326, 327-29 (Cal. 1948) (lawyer was suspended for three years for advising his client to make a fraudulent conveyance to frustrate a judgment and prepared the deed knowing it was to be used in a fraudulent fashion and backdated it to facilitate the fraud)
111. People v. Theodore, 926 P.2d 1237, 1242 (Colo. 1996) (lawyer drove client to family home in violation of restraining order issued against client); Fla. Bar v. Brown, 790 So. 2d 1081, 1083, 1089 (Fla. 2001) (lawyer who, at client's request, solicited campaign-contribution checks from subordinate lawyers and delivered them to a corporate client and premium billed the client as reimbursement suspended for ninety days)
112. Attorney Grievance Comm'n v. Sheinbein, 812 A.2d 981, 989, 1001 (Md. 2002) (lawyer who assisted his son/client in fleeing to Israel after committing a murder disbarred)
113. In re Berglas, 790 N.Y.S.2d 119 (App. Div. 2005) (lawyer who submitted false filing to INS in order to give the New York City office jurisdiction over the matter suspended for one year)
114. Disciplinary Counsel v. Cirincione, 807 N.E.2d 320, 323, 326 (Ohio 2004) (lawyer who helped client obtain rental housing in violation of court ordered conditions for client's release from jail suspended for six months).
115. Regardless of whether actual assistance is rendered, a lawyer may never advise a client to engage in criminal or fraudulent conduct. See, e.g., People v. Gifford, 76 P.3d 519, 520, 522 (Colo. App. 2003) (lawyer who advised client to pay wife to recant testimony in criminal case disbarred)
116. Statewide Grievance Comm. v. Somers, No. CV 980585853S, 1999 WL 732978 (Conn. Super. Ct. 1999) (lawyer who counseled witnesses to testify falsely disbarred)
117. FIa. Bar v. Boland, 702 So. 2d 229 (Fla. 1998) (lawyer who told client not to comply with a court-ordered child-visitation schedule suspended for two years)
118. In re Holden, 982 P.2d 399 (Kan. 1999) (lawyer who advised client to remove child from jurisdiction in violation, of court order indefinitely suspended)
119. State ex rel. Counsel for Discipline v. Horneber, 708 N.W.2d 620, 622 (Neb. 2006) (lawyer who counseled client to violate a court order to convey title to property as part of marriage dissolution suspended for two years)
120. In re Edson, 530 A.2d 1246 (N.J. 1987) (lawyer disbarred for advising clients to invent evidence in defense of drunk driving case).
121. In this context, the lawyer should still consider her obligations under Rule 1.6 to keep this confidential, in the absence of an exception. This ultimately may cause a conflict of interest, but the fact that the client has committed a crime in and of itself does not mean that the lawyer is barred from representing that client in a wholly unrelated case.
122. In analyzing the application of Model Rule 1.2(d), courts and regulatory bodies have found no violation, for counseling a client where the lawyer provides the client broad advice or provides advice for a client who has committed some prior bad act. See, e.g., State Bar of Ariz. Comm, on the Rules of Prof'l Conduct, Op. 2000-04 (2000) (opining that a lawyer may ethically advise a client to tape record a telephone conversation in which one party has not given consent to the recording as long as the lawyer concludes that such taping is not prohibited by state or federal, law). Also, courts have found no violation for assistance where the lawyer recognizes the crime or fraud and takes steps to correct or remedy it, or where the lawyer relied upon the opinion of other counsel or conducted his own research into the facts and law and could argue that he did not have knowledge.
123. See, e.g., In re Tocco, 984 P.2d 539, 543 (Ariz. 1999) (lawyer who did not deliberately omit assets from, bankruptcy schedules not subject to discipline)
124. Iowa Supreme Court Bd. of Prof'l Ethics v. Jones, 606 N.W.2d 5, 8 (Iowa 2000) (lawyer who had no evidence a current client's transaction, with former client was fraudulent other than, that the current client's story sounded "incredible" did not knowingly assist the current client's fraud, but lawyer misstatements and omissions in persuading former client to loan money to current client did constitute misrepresentation, which resulted in suspension of the lawyer's license)
125. In re Claussen 14 P.3d 586, 595 (Or. 2000) (lawyer who misrepresented client's withdrawal of assets as in the ordinary course of business after legal research gave lawyer a basis for so opining did not assist a client's fraud)
126. In re Fink, 764 A.2d 1208, 1209, 1211 (Vt. 2000) (lawyer who incorrectly advised client that she could sign her ex-husband's name on a car title following a divorce did not knowingly assist client fraud).
127. The term, "passively assisting," as used in this context, denotes a form of assistance that does not directly assist or further a client's crime or fraud, but may do so indirectly.
128. However, even passive assistance, such as withholding information from a court or the government, may violate Model Rule 1.2. See, e.g., People v. Casey, 948 P.2d 1014 (Colo. 1997) (forty-five day suspension for lawyer who failed to inform court that client facing trespassing charge was using someone else's identity)
129. In re Price, 429 N.E.2d 961 (Ind. 1982) (lawyer withheld information from government to assist client in obtaining Medicaid benefits illegally).
130. But see Utah State Bar Ethics Advisory Op. Comm., Op. 97-02 (1997) (lawyer's failure to give law-enforcement authorities telephone number of client accused of crime does not amount to assisting client in committing crime).
131. In this Part, I talk specifically about whether or not the client's actions constitute crimes as opposed to fraud. It is certainly the case that many of the client's actions would likely be construed as fraud both in the manner of entry and the method of obtaining employment. However, I do not think that calling the action a fraud as opposed to a crime changes the analysis meaningfully.
132. The employer, on the other hand, could be liable for not complying with the employment-authorization verification mandates set forth in the 1986 Immigration Reform, and Control Act (IRCA). See 8 U.S.C. § 1324(a)(1)(B) (2000) (establishing what is now commonly known as the 1-9 requirements). Also, in the absence of immigration reform at the national level, states have passed an unprecedented, number of bills related to immigration.
133. See Press Release, Nat'l Conference of State Legislatures, Federal Gridlock on Immigration Reform Leads States to Action (Nov. 29, 2007), available at http://www.ncsl.org/ programs/press/2007/pr112807.htm ("As of November 16, 2007, roughly 1562 pieces of legislation related to immigrants and immigration had been introduced among the 50 state legislatures. Of these bills, 244 became law in 46 states.... State legislators have introduced roughly two and a half times more bills in 2007 than in 2006. The number of enactments from 2006 (84) has more than tripled to 246 in 2007."). Many of these bills create employer sanctions.
134. See, e.g., H.B. 2779, 48th Leg., 1st Reg. Sess. (Ariz. 2007) (prohibiting employers from knowingly or intentionally hiring undocumented workers and requiring all employers to use the Basic Pilot Program to determine employees' legal status)
135. H.B. 729, 105th Gen. Assem., Reg. Sess. (Tenn. 2007) (providing for administrative procedures against employers who knowingly hire illegal immigrants, including the temporary suspension of the employer's business license)
136. S.B. 70, 2007 Leg., Reg. Sess. (W. Va. 2007) (making it unlawful for any employer to knowingly employ an unauthorized worker and. requiring employers to verify a prospective employee's legal status or authorization to work. The law also creates penalties for employing unauthorized workers, including fines, jail sentences and revocation of business licenses).
137. There is an argument that by holding oneself out for work, the individual is implicitly representing that she is authorized to work and if not so authorized is committing a fraudulent act. However, given the reality that many undocumented workers are in the workforce despite employers' knowledge of their status, and given the fact that federal law places the burden on the employer to verify employment authorization, holding oneself out for work does not necessarily mean that the employee is implicitly representing that she is lawfully authorized to work.
138. 8 U.S.C. § 1325 (2000).
139. United States v. Rincon-Jimenez, 595 F.2d 1192, 1194 (9th Cir. 1979) (finding that a violation of 8 U.S.C. § 1325 is consummated at the time of entering the United States and is not considered a continuing offense).
140. While employers in the past may not have asked for documents, given the increasing criminalization, of an employer's failure to ask for and document the immigration status of clients, as well as stepped-up enforcement, this practice may be waning. There have been a number of states that have passed statutes requiring an employer to obtain immigration information on each employee. See 8 U.S.C. § 1325 (2000).
141. This example also has the potential to raise Rule 11 issues for the lawyer representing the employee. Rule 11 of the Federal Rules of Civil Procedure states: [b]y presenting to the court a pleading, written motion, or other paper-whether by signing, filing, submitting, or later advocating it-an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:... (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery . . . . FED. R. CIV. P. 11(b). As part of the filing of a legal action, the lawyer may be required to provide a social security number on court papers such as case-designation sheets. If the lawyer provides the false social security number that the client is using, he or she could be subjected to sanctions under Rule 11 for asserting factual contentions that are not truthful.
142. 42 U.S.C. §§ 408(a)(7)(A)-(8) (Supp. V 2006). A person can be fined or imprisoned for not more than five year or both for such offense.
143. See United States v. Payne, 978 F.2d 1177, 1180 (10th Cir. 1992) (finding that using a false social security number for tax evasion purposes, with intent to deceive, was not a continuing offense)
144. United States v. Joseph, 765 F. Supp 326, 330 (E.D. La. 1991) (finding that use of a false social security number on a credit application for a bank loan, with intent to deceive, was not a continuing offense).
145. See H.R. 4437, 109th Cong. §§ 201, 203 (2005) (proposing to make unlawful presence in the United States an "aggravated felony").
146. Geoffrey C. Hazard, Jr., How Far May a Lawyer Go in Assisting a Client in Legally Wrongful Conduct?, 35 U. MIAMI L. REV. 669, 671-72 (1981) (explaining that there needs to be a nexus between the assistance and the actual, crime or fraud for 1.2(d) to bar attorney representation).
147. See infra notes 70-78 and accompanying text.
148. If the 1.2(d) analysis depended upon whether the money recovered in litigation would directly support the client to remain in the United States, lawyers would have to inquire, prior to accepting a case, how money recovered in litigation would be used. Such an interpretation of Rule 1.2(d) seems implausible.
149. Hazard, supra note 64, at 672 (referring to the lack of a nexus between the lawyer's conduct and the client's criminal or fraudulent acts as a lack of "causal proximity").
150. The analysis offered above in hypothetical three would be similar even if the client was engaged in an ongoing crime. For example, assume a client enters the country after having been previously deported. The client obtains employment, without presenting documents, and thereafter seeks legal assistance to recover wages for work performed. Similar to the hypothetical above, the lawyer may discuss the legal consequences of any proposed course of conduct with a client. As such, the lawyer would be able to advise the client that entry and presence in the United States after a deportation order is a crime. The question then is whether the lawyer's representation in wage-and-hour litigation assists in the client's criminal conduct. As described above, the analysis would depend upon how close a connection, exists between, the crime of entry and presence in the United States and the recovery of wages. While arguments exist on both sides, it is likely that the link between the lawyer's representation and the client's ongoing crime would be too tenuous to prohibit representation under Rule 1.2(d).
151. 18 U.S.C. §1546(a) (2000)
152. see also supra notes 42-45 and accompanying text.
153. Rule 1.2(d) states that "a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law." MODEL RULES OF PROF'L CONDUCT R. 1.2(d) (2007). Thus it is entirely permissible for the lawyer to explain to the client the illegal nature of some conduct and to counsel that the conduct cease. For a thoughtful discussion of when counseling can cross the line into assistance
154. see Pepper, supra note 29.
155. However, lawyers cannot counsel or assist in the obstruction of justice. Model Rule 8.4 states that it is professional misconduct for a lawyer to: "(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice." MODEL RULES OF PROF'L CONDUCT R. 8.4 (2007)
156. see also Office of Disciplinary Counsel v. Klaas, 742 N.E.2d 612, 614 (Ohio 2001) (per curiam) (suspending lawyer for one year with six months for telling a former client to "clean up his act" based on lawyer's knowledge that the FBI was going to initiate a drug raid).
157. In practical terms, after the Supreme Court's decision in Hoffman, it would be hard to argue for reinstatement on the merits, unless the client had lawful, immigration papers. To date, courts have approved only those requests for reinstatements that are conditioned upon an undocumented worker's obtaining proper work authorization within, a specified period of time. See, e.g., Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 902-03 (1984) (approving the NLRB's order that conditioned reinstatement of the injured workers upon proof of "legal readmittance to the United States")
158. NLRB v. A.P.R.A. Fuel Oil Buyers Group, Inc., 134 F.3d 50, 56-57 (2d Cir. 1997) (approving order to reinstate workers if "they present within a reasonable time, INS Form .1-9 and the appropriate supporting documents").
159. Pepper, supra note 29, at 1547.
160. Id. at 1547-48.
161. As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal, profession.... In addition, a lawyer should further the public's understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. . . . [A]U lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice . . . . MODEL RULES OF PROF'L CONDUCT pmbl. 6 (2007).
162. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) (quoting 3 WILLIAM BLACKSTONE, COMMENTARIES *23, *109) ("[I]t is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded.... [E]very right, when withheld, must have a remedy, and every injury its proper redress.").
163. Donald H. Zeigler, Rights Require Remedies: A New Approach to the Enforcement of Rights in the Federal Courts, 38 HASTINGS L.J. 665, 666 (1987) (explaining that courts have erected procedural barriers to obtaining remedies in various contexts, but, at the same time, have supported the underlying substance of the right)
164. see also David Rudovsky, Running in Place: The Paradox of Expanding Rights and Restricted Remedies, 2005 U. III. L. REV. 1199, 1202 (identifying an ongoing debate among constitutional scholars about whether rights and remedies are best understood as separate legal concepts or as being "inextricably intertwined").
165. Rudovsky, supra note 76, at 1200 ("Over the past three decades, the Supreme Court (and in recent years, the Congress) has restricted civil rights remedies through a series of complex and controversial measures, including expanded immunities from, suit, narrower standards for standing and for private enforcement of civil rights legislation, exceptions to the exclusionary rule, limitations on remedies in criminal cases and federal habeas corpus, and direct federal court door-closing legislation.").
166. For example, standing limitations are designed to promote separation of powers, serve judicial efficiency, improve judicial decision making, and serve the value of fairness. ERWIN CHEMERINSKY, CONSTITUTIONAL LAW, PRINCIPLES AND POLICIES 6.1-62 (3d ed. 2006).
167. Sovereign immunity doctrine is designed to create efficiency by limiting litigation, preserve the unhampered exercise of governmental discretion, and further separation of powers by limiting judicial review. ERWIN CHEMERINSKY, FEDERAL JURISDICTION 611-12 (4th ed. 2003).
168. HAZARD & HODES, supra note 24, at 5-6 (stating that Rule 1.2(d) is "part of an important constellation of rules directed at keeping the scope of legal services provided to clients within proper bounds").
169. See Bounds v. Smith, 430 U.S. 817, 821-22 (1977) (finding that prisoners have a constitutional right of access to the courts)
170. White v. Kautzky, 494 F.3d 677, 679-80 (8th Cir. 2007) (finding that "meaningful, access" to the courts includes the ability to bring actions "seeking new trials, release from confinement, or vindication of fundamental civil rights"
171. (quoting Bounds, 430 U.S. at 827))
172. Walbert v. Walbert, 567 N.W.2d 829, 832 (N.D. 1997) (finding that denial of an. incarcerated person's request to appear at a divorce hearing by telephone deprived him of his due process right to have reasonable access to the courts).
173. For example, the Fourth Amendment contains an exclusionary rule, Weeks v. United States, 232 U.S. 383 (1914)
174. Boyd v. United States, 116 U.S. 616 (1886), an expectation of privacy, Katz v. United States, 389 U.S. 347 (1967), and a requirement of probable cause, United States v. Harris, 403 U.S. 573 (1971) (search warrant)
175. Henry v. United States, 361 U.S. 98 (1959) (arrest warrant). The Fifth Amendment contains a privilege against self-incrimination, Miranda v. Arizona, 384 U.S. 436 (1966) (interrogation)
176. Hoffman v. United States, 341 U.S. 479 (1951) (trial). The Sixth Amendment preserves the right to counsel in certain criminal cases, Gideon v. Wainwright, 372 U.S. 335 (1963).
177. Part of the uneasiness stems from the fact that the ethical issues raised in this Article are but a symptom of the larger underlying problem-namely, what the United States will do about the millions of undocumented workers who contribute to our economy on a daily basis. In the absence of meaningful immigration reform, the ethical issues raised in this Article are timely and crucial, but they do not address the larger, unresolved, vexing problem of meaningful immigration reform.
178. FED. R. CIV. P. 26(b)(1)
179. see also Manning v. Gen. Motors, 247 F.R.D. 646, 651 (D. Kan. 2007) ("Relevancy is broadly construed, and a request for discovery should be considered relevant if there is 'any possibility' that the information sought may be relevant to the claim or defense of any party." (citing Owens v. Spring/United Mgmt. Co., 221 F.R.D 649, 652 (D. Kan. 2004)))
180. Jackson v. AFSCME Local 196, 246 F.R.D 410, 412 (D. Conn. 2007) ("Information that is reasonably calculated to lead to the discovery of admissible evidence is considered relevant for the purposes of discovery.").
181. The purpose of discovery is to allow a broad search for facts, the names of witnesses, or any other matters that may aid a party in the preparation or presentation of his case. See Engl v. Aetna Life Ins. Co., 139 F.2d 469, 472 (2d. Cir. 1943)
182. Mahler v. Pa. R. Co., 8 Fed. R. Serv. 33.351 (E.D.N.Y. 1945).
183. The rule reads, "Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." FED. R. CIV. P. 26(b)(1). Subsection (b) was intended to create a broad scope of examination and allows not only for the discovery of evidence for use at trial but also inquiry into matters that are themselves inadmissible as evidence but that might lead to the discovery of such evidence.
184. FED. R. CIV. P. 26 annot.
185. FED.R. EVID.401.
186. Dominion Exploration & Prod., Inc. v. Waters, 972 So. 2d 350, 361 (4th Cir. 2007) ("Not only may discovery be had on any relevant matter involved in a pending action, but it may be had of any matter even if inadmissible at trial, which is reasonably calculated to lead to the discovery of admissible evidence.")
187. Lee v. State, 141 P.3d 342, 347 (Alaska 2006) ("[Discovery rules are to be broadly construed and 'relevance for purposes of discovery is broader than for purposes of trial.'"
188. (quoting Hazen v. Municipality of Anchorage, 718 P.2d 456, 461 (Alaska 1986)))
189. Catrone v. Miles, 160 P.3d 1204, 1212 (Ariz. Ct. App. 2007) ('"The requirement of relevancy at the discovery stage is more loosely construed than that required at trial.'"
190. (quoting Brown v. Superior Court, 670 P.2d 725, 730 (Ariz. 1983))).
191. In many instances, questions of relevance will be raised at the pretrial and trial stage through motions for protective orders or motions to compel the production of evidence. See, e.g., Rivera v. NIBCO, Inc., No. CIV-F-99-6443, 2006 U.S. Dist. LEXIS 16967, at *21-22 (E.D. Cal. Mar. 31, 2006) (analyzing whether immigration status is relevant to the underlying case through a motion for a protective order)
192. Galaviz-Zamora v. Brady Farms, Inc., 230 F.R.D. 499, 501-02 (W.D. Mich. 2005) (deciding whether immigration status is relevant to claims under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act by ruling on Plaintiff's motion for a protective order)
193. Cortez v. Medina's Landscaping, No. 00 C 6320, 2002 U.S. Dist. LEXIS 18831, at *2 (N.D. 111. Sept. 30, 2002) (raising the question of relevance of immigration status through a motion to compel discovery)
194. De La Rosa v. N. Harvest Furniture, 210 F.R.D. 237, 238-39 (C.D. Ill. 2002) (raising the question of relevance of immigration status through a motion to compel discovery)
195. Zeng Liu v. Donna Karan Int'l, Inc., 207 F. Supp. 2d .191, 192-93 (S.D.N.Y. 2002) (using a motion to compel discovery to ascertain the relevance of immigration status).
196. For a detailed discussion of the lawyer's ethical obligations if immigration status is relevant to the underlying proceedings, see infra Part IV.
197. The term "relevant," as used in this Part, is limited to the definition under Federal Rule of Civil Procedure 26(b) relating to discovery and Federal Rule of Evidence 401 concerning relevant evidence at trial. While the term "relevant" sounds similar to the term "relating to" used in Model Rule 1.6(a) to define "confidentiality of information," the terms have different meanings. For a detailed explanation of the difference between these terms and the relationship between the two, see infra notes 169-73 and accompanying text.
198. For a detailed discussion of the lawyer's ethical obligations if immigration status is not relevant to the underlying proceedings, see infra Part IV.
199. See Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 892-94 (1984) (finding that the immigration laws "as presently written" expressed only a "peripheral concern" with the employment of undocumented workers)
200. (quoting De Canas v. Bica, 424 U.S. 351, 360 (1976)))
201. see also Linda S. Bosniak, Exclusion and Membership: The Dual Identity of the Undocumented Worker Under United States Law, 1988 WIS. L. REV. 955, 979 (stating that prior to employer sanctions, immigration laws were focused on immigrants' entry and border crossing)
202. Ho & Chang, supra note 10, at 478-79 (explaining that prior to passage of the Immigration and Nationality Act (INA), immigration laws were focused on the terms and conditions under which immigrants would be classified and admitted into the country).
203. Cf. Ho & Chang, supra note 10, at 479 n.16 (noting, however, that there were other immigration laws that were designed to regulate the labor market in discrete ways, such as the Chinese Exclusion Act, which was designed to protect domestic workers from having to compete with the Chinese labor market, and the Immigration Act of .1924, which contained preferences within the quota system for those with job skills in specific sectors of the economy).
204. Del Rey Tortilleria, Inc. v. NLRB, 976 F.2d 1115, 1124 (7th Cir. 1992) (Cudahy, J., dissenting) ("Once an alien has crossed the border, however, employment is not an additional offense (in fact, it is no crime at all).").
205. See Ho & Chang, supra note 10, at 479 (referring to cases supporting protection under Title VII, the National Labor Relations Act, the Fair Labor Standards Act, the Farm. Labor Contractor Registration Act, and the Migrant and Seasonal Agricultural Worker Protection Act)
206. Michael J. Wishnie, Prohibiting the Employment of Unauthorized Immigrants: The Experiment Fails, 2007 U. CHI. LEGAL F. 193, 211 ("Before IRCA, courts and executive-branch agencies generally enforced labor and employment laws without regard for the immigration status of the employee.").
207. 8 U.S.C. §§1324(a)(l)(A)-(B) (2000). At the same time, Congress created new provisions barring employers from, discriminating against applicants or employees because of their national origin or citizenship status. Id. § 1324b(a)(1). Despite these new provisions designed to address undocumented workers, the legislative history clearly illustrates that passage of this bill was in no way intended to diminish the already existing labor law protections afforded to such workers.
208. See H.R. REP. No. 99-682(11), at 8-9 (1986), reprinted in 1986 U.S.C.C.A.N. 5757, 5758 ("[T]he committee does not intend that any provision of this Act would limit the powers of State or Federal labor standards agencies such as the Occupational Safety and Health Administration, the Wage and Hour Division of the Department of Labor, the Equal Employment Opportunity Commission, the National Labor Relations Board, or Labor arbitrators, in conformity with existing law, to remedy unfair practices committed against undocumented employees for exercising their rights before such agencies or for engaging in activities protected by these agencies. To do otherwise would be counter-productive of our intent to limit the hiring of undocumented employees and the depressing effect on working conditions caused by their employment.").
209. 8 U.S.C. § 1324a(h)(3) (2000) (defining "unauthorized alien" for the purpose of the statute).
210. Id. § 1324c(a)(2).
211. Id. §1324a(f)(1) (making employers who violate IRCA subject to criminal prosecution). Despite the new provision making it criminal for employers to hire undocumented workers, only a small percentage of arrests made in 2007 involved criminal charges against those who hired such workers.
212. See Spencer S. Hsu, Immigrant Crackdown Falls Short; Despite Tough Rhetoric, Few Employers of Illegal Workers Face Criminal. Charges, WASH. POST, Dec. 25, 2007, at A3 (citing a 2007 report by the Department of Homeland Security that found that while arrest rates had gone up to nearly four times the previous year's level, only 2 percent of the arrests involved charges against individuals who had hired undocumented workers - "[f]ewer than 100 owners, supervisors or hiring officials were arrested in fiscal 2007, compared with nearly 4,900 arrests that involved illegal workers, providers of fake documents and others, the figures show").
213. 8 U.S.C. § 1324a(b)(1) (2000) (requiring the completion of 1-9 forms designed to verify immigration status)
214. see also Michael J. Wishnie, Emerging Issues for Undocumented Workers, 6 U. PA. J. LAB. & EMP. L. 497, 500 (2004) ("In 1986, Congress passed the Immigration Reform and Control Act (IRCA), which deputized private employers in the public effort to control 'illegal immigration.'").
215. It is not the intention of the Committee that the employer sanctions provisions of the bill be used to undermine or diminish in any way labor protections in existing law, or to limit the powers of federal or state labor relations boards, labor standards agencies, or labor arbitrators to remedy unfair practices committed against undocumented employees for exercising their rights before such agencies or for engaging in activities protected by existing law. H.R. REP. NO. 99-682(1), at 58 (1986)
216. reprinted in 1986 U.S.C.C.A.N. 5649, 5662.
217. Id.
218. Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 884 (1983) (holding that undocumented workers were considered employees under the National Labor Relations Act)
219. Rios v. Enter. Ass'n Steamfitters Local Union 638, 860 F.2d 1168, 1172-73 (2d Cir. 1988) (permitting undocumented workers remedies under Title VII prior to the passage of the IRCA)
220. In re Reyes, 814 F.2d 168, 170 (5th Cir. 1987) (finding that both undocumented and documented workers are covered under the Fair Labor Standards Act)
221. Local 512, Warehouse & Office Workers' Union v. NLRB, 795 F.2d 705, 716 (9th Cir. 1986) (finding that undocumented workers are entitled to the protections afforded under the NLRA)
222. Bevies Co. v. Teamsters Local 986, 791 F.2d 1391, 1392-93 (9th Cir. 1986) (upholding an arbitrator's award of backpay and reinstatement to undocumented workers prior to passage of IRCA)
223. Donovan v. Burgett Greenhouses, Inc., 759 F.2d 1483, 1485-86 (10th Cir. 1985) (allowing for the enforcement of the FLSA on behalf of undocumented workers); see. also Ho & Chang, supra note 10, at 484-85.
224. Hoffman. Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002).
225. Id. at 146-47.
226. Id. at 149-50.
227. Id. at 151-52.
228. Id. at 149.
229. Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 894-96 (1984) (finding that the NLRA was violated when undocumented workers were reported to the Immigration and Naturalization Service (INS) as retaliation for having voted for a union).
230. Id. at 892-93, 903.
231. After Sure-Tan, the circuits split on the question of eligibility for back-pay under the NLRA for undocumented workers who were in the U.S. after discharge from employment. Compare Hoffman Plastic Compounds, Inc. v. NLRB, 237 F.3d 639 (D.C. Cir. 200.1) (en. banc) (allowing an award of back-pay to an undocumented worker in the U.S.)
232. and NLRB v. A.P.R.A. Fuel Oil Buyers Group, Inc., 134 F.3d 50, 57 (2d Cir. 1997) (allowing an award of back-pay to an undocumented worker where employer was aware of worker's status)
233. and EEOC v. Hacienda Hotel, 881 F.2d 1504, 1517 (9th Cir. 1989) (reasoning that the District Court did not err in finding that plaintiffs in a Title VII case were entitled to an award of back-pay)
234. and Rios v. Enter. Ass'n Steamfitters Local Union 638, 860 F.2d 1168, 1173 (2d Cir. 1988) (finding that plaintiffs in a Title VII case, who have remained in the country, are eligible for back-pay as of the time of the violation)
235. and Local 512, Warehouse & Office Workers' Union v. NLRB, 795 F.2d 705, 719 (9th Cir. 1986) (finding that undocumented workers who are in the U.S. remain eligible for back-pay), ató Bevies Co. v. Teamsters Local 986, 791 F.2d 1391, 1393 (9th Cir. 1986) (finding that an. arbitrator's decision granting reinstatement and back-pay to undocumented workers was not reviewable because it was not in manifest disregard of the law)
236. with Del Rey Tortilleria, Inc. v. NLRB, 976 F.2d 1115, 1115 (7th Cir. 1992) (finding undocumented workers who remain in the country are ineligible for back-pay).
237. Sure-Tan, 467 U.S. at 893-94 ("If an employer realizes that there will be no advantage under the NLRA in preferring illegal aliens to legal resident workers, any incentive to hire such illegal aliens is correspondingly lessened. In. turn, if the demand for undocumented aliens declines, there may then be fewer incentives for aliens themselves to enter in violation, of the federal immigration, laws.").
238. Hoffman, 535 U.S. at 147.
239. Id. at 147-48.
240. Id. at 148.
241. Id.
242. see Wishnie, supra note 100, at 506-07 (asserting that the majority's focus was on the use of fraudulent documents by workers, as evidenced by "its repeated invocation of the fraudulent document provisions of immigration law, but also in its attempt to align its holding with prior decisions denying reinstatement or back-pay 'to employees found guilty of serious illegal conduct in connection with their employment' and who 'had committed serious criminal acts'"
243. (citing Hoffman, 535 U.S. at 148)).
244. See, e.g., Rivera v. NIBCO, Inc., No. CIV-F-99-6443, 2006 U.S. Dist. LEXIS 16967 (E.D. Cal. Mar. 31, 2006)
245. Galaviz-Zamora v. Brady Farms, Inc., 230 F.R.D. 499, 501 (W.D. Mich. 2005)
246. Garcia-Andrade v. Madra's Cafe Corp., No. 04-71024, 2005 U.S. Dist. LEXIS 22122 (E.D. Mich. Aug. 3, 2005)
247. Colindres v. Quietflex Mfg., No. H-01-4319, 2004 U.S. Dist. LEXIS 27982 (S.D. Tex. Apr. 19, 2004)
248. Cortez v. Medina's Landscaping, No. 00 C 6320, 2002 U.S. Dist. LEXIS 18831 (N.D. Ill. Sept. 30, 2002)
249. Flores v. Amigon, 233 F. Supp. 2d 462 (E.D.N.Y. 2002); De La Rosa v. N. Harvest Furniture, 210 F.R.D. 237 (CD. 111. 2002)
250. Zeng Lui v. Donna Karan Int'l, Inc., 207 F. Supp. 2d 191 (S.D.N.Y. 2002)
251. Pontes v. New Eng. Power Co., No. 03-00160A, 2004 Mass. Super. LEXIS 340 (Mass. Dist. Ct. Aug. 17, 2004)
252. Cabrera v. Ekema, 695 N.W.2d 78 (Mich. Ct. App. 2005)
253. Llerena v. 302 W. 12th St. Condo., No. 102490/03, 2004 WL 2793176 (N.Y. Sup. Ct. Oct. 7, 2004)
254. AsgarAli v. Hilton Hotels Corp., 798 N.Y.S.2d 342 (Sup. Ct. 2004).
255. See infra notes 130-39 and accompanying text for a discussion of whether or not undocumented workers are entitled to various substantive rights.
256. See, e.g., Martinez v. Mecca Farms, Inc., 213 F.R.D. 601, 604-05 (S.D. FIa. 2002) (finding that undocumented farm workers are not precluded from having standing to sue under the Migrant and Seasonal Agricultural Worker Protection Act).
257. See, e.g., Rivera v. NIBCO, Inc., 384 F.3d 822, 825-26 (9th Cir. 2004) (finding that immigration status is relevant to back-pay and front-pay damages under Hoffman)
258. Flores v. Limehouse, No. 2:04-1295-CWH, 2006 U.S. Dist. LEXIS 30433, at *6-7 (D.S.C May 11, 2006) (finding that IRCA does not prohibit undocumented aliens from, bringing a claim under RICO)
259. Trejo v. Broadway Plaza Hotel, No. 04 Civ. 4005, 2005 U.S. Dist. LEXIS 17133, at *2-3 (S.D.N.Y. Aug. 16, 2005) (concluding that immigration status is not relevant because not seeking back-pay)
260. De La Rosa, 2.10 F.R.D. at 239 (finding that immigration status is not relevant to back-pay because back-pay would only the period between termination and reinstatement)
261. Pontes v. New Eng. Power Co., 18 Mass. L. Rep. 183, 2004 WL 2075458, at *2 (Mass. Super. Ct. Aug. 19, 2004) (finding that immigration status is not relevant to a claim, for impaired earning capacity based upon a work injury because the analysis does not implicate what the plaintiff previously did or what job the plaintiff intends to do in the future).
262. See, e.g., Galaviz-Zamora, 230 F.R.D. at 502 (finding that immigration, status is not relevant to damages for unpaid wages, nor to standing, class certification, or credibility)
263. Cortez, 2002 U.S. Dist. LEXIS 18831, at *2 (finding that immigration status does not bar recovery of unpaid wages)
264. Amigon, 233 F. Supp. 2d at 464 (determining that immigration status does not preclude a claim, for unpaid wages and overtime under the Fair Labor Standards Act)
265. Liu, 207 F. Supp. 2d at 192-93 (denying defendant's request to discover plaintiff's immigration status in a claim for back-pay)
266. Llerena, 2004 WL 2793176, at *1-2 (finding that immigration status is not relevant to a case involving tort and state labor law violations).
267. See, e.g., Galaviz-Zamora, 230 F.R.D. at 502 (finding that the prejudicial impact of disclosure far outweighs its probative value)
268. Ponce v. Tim's Time, Inc., No. 03 C 6123, 2005 U.S. Dist. LEXIS 20263 (N.D. Ill. Sept. 14, 2005) (finding that even though there was evidence that plaintiff made false statements to hide immigration status that may have been, relevant for impeaching or attacking credibility, the potential prejudice to plaintiff outweighed the possible probative value)
269. Garcia-Andrade, 2005 U.S. Dist. LEXIS 22122, at *6 (finding plaintiffs' Fifth Amendment rights bar defendants from, requiring documentation of plaintiffs' immigration statuses)
270. Amigon, 233 F. Supp. 2d at 464-65 (finding that the potential for prejudice by allowing the disclosure of immigration status far outweighs its minimal probative value)
271. Liu, 207 F. Supp. 2d at 192-93 (stating that the risk of injury to the plaintiff of the disclosure outweighs the need for disclosure)
272. Pontes, 2004 WL 2075458, at *3.
273. See, e.g., Rivera v. NIBCO, Inc., 364 F.3d 1057, 1064 (9th Cir. 2004) (concluding that immigration status does not have to be disclosed because of the substantial and particularized harm of the discovery-namely, the chilling effect that disclosure can have on the ability to enforce rights)
274. EEOC v. City of Joliet, 239 F.R.D. 490, 492-93 (N.D. 111. 2006) (concluding that the potential damages that could result from disclosure of immigration status, namely the chill on plaintiffs' enforcement of their Title VII rights, far outweigh any minimal legitimate probative value)
275. EEOC v. First Wireless Group, Inc., 225 F.R.D. 404, 406 (E.D.N.Y. 2004) (prohibiting the disclosure of immigration status based on a finding that the unacceptable burden on the public interest that would result from deterring plaintiffs from seeking relief outweighs the potential relevance).
276. See, e.g., Chellen v. John Pickle Co., 446 F. Supp. 2d 1247 (N.D. Okla. 2006)
277. Zavala v. Wal-Mart Stores, Inc., 393 F. Supp. 2d 295 (D.N.J. 2005)
278. Martinez v. Mecca Farms, Inc., 213 F.R.D. 601 (S.D. Fla. 2002)
279. Gomez v. Falco, 792 N.Y.S.2d 769 (App. Div. 2004).
280. See, e.g., Renteria v. Italia Foods, Inc., No. 02 C 495, 2003 U.S. Dist. LEXIS 14698, at *19-20 (N.D. 111. Aug. 21, 2003) (finding plaintiffs not entitled to back-pay under FLSA for retaliatory discharge because this would contravene the policies embodied in IRCA, but they are entitled to compensatory damages)
281. In re Tuv Taam. Corp., 340 N.L.R.B. 756, 759-60 (2003) (granting back-pay conditionally and leaving for the compliance stage a determination of whether any of the discriminatees were lawfully entitled to be present and employed in the United States).
282. Madeira v. Affordable Hous. Found., Inc., 315 F. Supp. 2d 504, 506-08 (S.D.N.Y. 2004)
283. Echeverría v. Lindner, No. 018666/2002, 2005 WL 1083704, at *12 (N.Y. Sup. Ct. Mar. 2, 2005)
284. CeIi v. 42d St. Dev. Project, Inc., No. 37491/01, 2004 WL 2812902, at *3, 2004 (N.Y. Sup. Ct. Nov. 9, 2004)
285. Cano v. Mallory Mgmt., 760 N.Y.S.2d 816 (Sup. Ct. 2003).
286. See, e.g., Balbuena v. IDR Realty LLC, 845 N.E.2d 1246, 1259-60 (N.Y.2006)
287. Majlinger v. Cassino Contracting Corp., 802 N.Y.S.2d 56, 66 (App. Div. 2005)
288. Tyson Foods, Inc. v. Guzman, 1.16 S.W.3d 233, 244 (Tex. Ct. App. 2003).
289. But see Veliz v. Rental Serv. Corp. USA, Inc., 313 F. Supp. 2d 1317, 1335-36 (D. Fla. 2003) (finding that undocumented status precludes an award of lost U.S. wages).
290. Hernandez-Cortez v. Hernandez, No. 01-1241-JTM, 2003 U.S. Dist. LEXIS 19780, at *19 (D. Kan. Nov. 4, 2003) (finding that an undocumented alien can only recover money based on country of origin wages)
291. Rosa v. Partners in Progress, Inc., 868 A.2d 994, 1000 (N.H. 2005) (holding that if defendant knew or should have known that plaintiff was undocumented then the undocumented worker can recover U.S. wages, but if the defendant did not know or had no reason to know then the undocumented worker can only recover damages based upon country of origin wages)
292. Jallow v. Kew Gardens Hills Apts. Owners, 803 N.Y.S.2d 18 (Sup. Ct. 2005)
293. Sanango v. 200 E. 16th St. Hous. Corp., 788 N.Y.S.2d 314, 321 (App. Div. 2004), overuled by Balbuena, 812 N.Y.S.2d 416.
294. Rivera v. NIBCO, Inc., 364 F.3d 1057, 1066-70 (9th Cir. 2004) (suggesting that Hoffman may not apply in the Title VII context because of the differences between Title VH and the NLRA)
295. De La Rosa v. N. Harvest Furniture, 210 F.R.D. 237, 239 (C.D. Ill. 2002) (noting that Hoffman was not dispositive in addressing the question of whether undocumented workers are entitled to back-pay under Title VII).
296. Escobar v. Spartan Sec. Serv., 281 F. Supp. 2d 895, 897 (S.D. Tex. 2003) (suggesting that Hoffman precludes undocumented workers from receiving back-pay under Title VII, but does not foreclose other remedies available to plaintiffs)
297. see also Nancy Montwieler, EEOC: EEOC Limits Undocumented Workers' Relief Based on Recent Supreme Court Decision, 126 Daily Lab. Rep. (BNA), at A2 (July 1, 2002) ("[T]he Hoffman decision in no way calls into question the settled principle that undocumented workers are covered by the federal employment discrimination statutes . . . .").
298. But see Morejon v. Terry Hinge & Hardware, No. B162878, 2003 Cal. App. Unpub. LEXIS 10394, at *23-25 (Ca1. Ct. App. Nov. 4, 2003) (finding plaintiff barred from bringing discrimination claim because of unclean, hands doctrine for use of false documents)
299. Crespo v. Evergo Corp., 841 A.2d 47.1, 476-77 (N.J. Super. Ct. App. Div. 2004) (barring undocumented worker from economic and noneconomic damages in state anti-discrimination action because of status).
300. Escobar, 281 F. Supp. 2d. at 897.
301. See, e.g., Safeharbor Employer Serv. I, Inc. v. Velazquez, 860 So. 2d 984, 986 (FIa. Dist. Ct. App. 2003) (finding plaintiff is not barred from workers' compensation because of undocumented status as there is no federal preemption)
302. Earth First Grading v. Gutierrez, 606 S.E.2d 332, 334 (Ga. Ct. App. 2004) (finding plaintiff entitled to workers' compensation benefits as federal law does not preempt award)
303. Cont'l PET Techs, v. Palacias, 604 S.E.2d 627, 631 (Ga. Ct. App. 2004) (finding plaintiff entitled to workers' compensation because no federal preemption)
304. Wet Walls, Inc. v. Ledezma, 598 S.E.2d 60. 63 (Ga. Ct. App. 2004) (finding plaintiff entitled to workers' compensation because no federal preemption)
305. Correa v. Waymouth Farms, Inc., 664 N.W.2d 324, 329-30 (Minn. 2003) (finding IRCA does not preempt undocumented workers from, receiving state workers' compensation benefits).
306. See, e.g., De Jesus Uribe v. Aviles, No. B166839, 2004 Cal. App. Unpub. LEXIS 9698, at *12-13 (Cal. Ct. App. Oct. 26, 2004) (finding undocumented workers may not be eligible for vocational rehabilitation benefits but that plaintiff was entitled to workers' compensation regardless of his immigration status)
307. Cherokee Indus., Inc. v. Alvarez, 84 P.3d 798, 801 (Okla. Civ. App. 2003) (finding that status alone does not deprive an alien from all worker compensation benefits, but claimant may not be eligible for vocational rehabilitation or medical treatment by a specific doctor).
308. It is important to note that information not relating to the representation is not considered confidential. MODEL RULES OF PROF'L CONDUCT R. 1.6(a) (2007). However, the terms "relevant" to the litigation and "relating" to the representation are distinct, with "relating to the representation" being broader. Because of this, information can be related to the representation, and thus confidential, but not relevant to the underlying litigation. For a detailed explanation of the difference
309. see infra notes 169-73 and accompanying text.
310. . FED. R. CIV. P. 26(b)(1) ("Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense-including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter....").
311. FED. R. EVID. 401 (defining relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination, of the action, more probable or less probable than it would be without the evidence"). Of course at trial there can be many different things that bar the admission of evidence, but it must, at a minimum, be relevant to the proceedings in order to be admissible.
312. Keith Cunningham-Parmeter, Fear of Discovery: Immigrant Workers and the Fifth Amendment, 41 CORNELL INT'L L.J. 27, 59 (2008).
313. The privilege against self-incrimination derives from the Fifth Amendment to the Constitution. U.S. CONST, amend. V.
314. Kastigar v. United States, 406 U.S. 441, 444 (1972)
315. see also United States v. U.S. Coin & Currency, 401 U.S. 7.15, 718 (1971) (civil forfeiture proceedings)
316. In re Gau.lt, 387 U.S. 1, 49 (1967) (delinquency proceedings)
317. Bigby v. U.S. Immigration & Naturalization Serv., 21 F.3d 1059, 1060-61 (11th Cir. 1994) (deportation proceedings)
318. Gonzales v. McEuen, 435 F. Supp. 460, 470 (C.D. Cal. 1977) (school disciplinary proceedings).
319. But, as in the criminal context, the privilege can only be asserted by individuals, not by corporations. Fisher v. United States, 425 U.S. 391, 424-26 (1976); Hale v. Henkel, 201 U.S. 43, 69-70 (1906).
320. Heidt, supra note 19, at 1065.
321. Id.
322. see also Martin I. Kaminsky, Preventing Unfair Use of the Privilege Against Self-incrimination in Private Civil Litigation: A Critical Analysis, 39 BROOK. L. REV. 121, 122 (1972)
323. Marjorie S. White, Plaintiff as Deponent: Invoking the Fifth Amendment, 48 U. CHI. L. REV. 158, 160 (1981).
324. Hoffman v. United States, 341 U.S. 479, 486 (1951).
325. The privilege may be used even if the invokers realize that they would not likely be prosecuted for the conduct they would be forced to reveal. United States v. Johnson, 488 F.2d 1206, 1209 (1st Cir. 1973)
326. United States v. Miranti, 253 F.2d 135, 139 (2d Cir. 1958).
327. Capitol Prod. Corp. v. Hernon, 457 F.2d 541, 542 (8th Cir. 1972).
328. See, e.g., SEC v. Thomas, 116 F.R.D. 230, 231-34 (D. Utah 1987)
329. ; United States v. Second Nat'l Bank of Nashua N.H., 48 F.R.D. 268, 271 (D.N.H. 1969).
330. De Antonio v. Solomon, 42 F.R.D. 320, 322 (D. Mass. 1967).
331. Gordon v. FDIC, 427 F.2d 578, 580 (D.C. Cir. 1970)
332. Backos v. United States, 82 F.R.D. 743, 744 (E.D. Mich. 1979)
333. United States v. 47 Bottles, More or Less, Each Containing 30 Capsules of Jenasol R.J. Formula '60,' 26 F.R.D. 4, 5-6 (D.N.J. 1960)
334. Paul Harrigan & Sons, Inc. v. Enter. Animal Oil Co., 14 F.R.D. 333, 335 (E.D. Pa. 1953).
335. Gordon, 427 F.2d at 580-81
336. FDIC v. Logsdon, 18 F.R.D. 57, 58 (W.D. Ky. 1955)
337. United States v. Fishman, 15 F.R.D. 151, 152 (S.D.N.Y. 1953)
338. Mayo v. Ford, 184 A.2d 38 (D.C. 1962)
339. Simkins v. Simkins, 219 So. 2d. 724, 725-27 (Fla. Dist. Ct. App. 1969).
340. Wehling v. Columbia Broad. Sys., 608 F.2d 1084, 1084-87 (5th Cir. 1979), reh'g denied, 61.1 F.2d 1026 (5th Cir. .1980)
341. In re Folding Carton Antitrust Litig., 609 F.2d 867, 869-73 (7th Cir. 1979)
342. In re Master Key Litig., 507 F.2d 292, 292-94 (9th Cir. 1974)
343. Justice v. Laudermilch, 78 F.R.D. 201, 202-03 (M.D. Pa. 1978)
344. In re Penn Cent. Sec. Litig., 347 F. Supp. .1347, 1348 (E.D. Pa. 1972)
345. Alioto v. Holtzman, 320 F. Supp. 256, 257 (E.D. Wis. 1970)
346. Duffy v. Currier, 291 F. Supp. 810, 812, 814 (D. Minn. 1968)
347. De Antonio v. Solomon, 41 F.R.D. 447, 449 (D. Mass. 1966)
348. Lowe's of Roanoke, Inc. v. Jefferson Standard Life Ins. Co., 219 F. Supp. 181, 183-90 (S.D.N.Y. 1963)
349. Nat'l Discount Corp. v. Holzbaugh, 13 F.R.D. 236, 237 (E.D. Mich. 1952).
350. Henry v. Sneiders, 490 F.2d 315, 316-17 (9th Cir. 1974)
351. cert, denied, 419 U.S. 832 (1974)
352. In re Turner, 309 F.2d 69, 70 (2d Cir. 1962)
353. De Antonio v. Solomon, 42 F.R.D. 320, 321, 323 (D. Mass. 1967).
354. 8 U.S.C. §1324a(a)(1)(A) (Supp. V 2006) (making it illegal to knowingly hire an illegal, alien); see also id. § 1324a(a)(2) (stating an employer is criminally liable for continuing employment of an illegal alien). IRCA includes an extensive employee verification system designed to deny employment to undocumented workers. Id. § 1324a(b)(1). As part of the verification process, employers are required to complete forms for each employee. Id. § 1324a(b)(1).
355. Eric Schnapper, Righting Wrongs Against Immigrant Workers, 39 TRIAL 46, 54 (2003) (explaining that if the employer asserted a defense under Hoffman Plastic Compounds, an employee "would be entitled to engage in discovery regarding the employer's prior knowledge of his or her immigration status. Proof of an employer's general practices and knowledge regarding other immigrant workers would also be relevant evidence").
356. Issues also might be raised under Rule 11 of the Federal Rules of Civil Procedure if the employer claims, as a defense, that the employee is undocumented. Under Rule 11, the lawyer for the employer can only raise this defense if the assertion is based upon "knowledge, information, and belief." FED. R. CIV. P. 11(b). There are instances where this assertion could be in direct conflict to the employer's representation on the 1-9 form, that "to the best of his/her knowledge" the plaintiff was not an undocumented alien.
357. See Schnapper, supra, at 54.
358. This discussion, proceeds upon the assumption that the Fifth Amendment privilege was not effectively resisted. In order to resist the assertion of the privilege, the challenger must show that the response would not incriminate or the crime for which the invoker's response incriminates is barred by the attachment of jeopardy, the running of the statute of limitations, or past grants of immunity.
359. See Heidt, supra note 19, at 1071-80 (detailing each of the ways in which an opponent can. resist the invocation of the privilege).
360. See, e.g., Lefkowitz v. Turley, 414 U.S. 70, 71-74, 83 (1973) (canceling of government contracts);
361. Uniformed Sanitation. Men Ass'n v. Comm'r of Sanitation, 392 U.S. 280, 282, 284-85 (1968) (government employment);
362. Spevack v. Klein, 385 U.S. 511, 514 (1967) (attorney discipline);
363. Garrity v. New Jersey, 385 U.S. 493, 494-98 (1967) (police employment).
364. 425 U.S. 308, 316 (1976);
365. see also Hasbro, Inc. v. Serafino, 958 F. Supp. 19, 24-25 (D. Mass. 1997) (adverse inferences may be drawn from defendant's assertion of Fifth Amendment privilege where there is other probative evidence in civil RICO suit);
366. United States v. Bonanno Organized Crime Fam., 683 F. Supp. 1411, 1444 (E.D.N.Y. 1988) (adverse inference may be drawn from assertion of privilege in civil cases).
367. But see Avirgan v. Hull, 932 F.2d 1572, 1580 (11th Cir. 1991),
368. cert, denied, 502 U.S. 1048 (1992) (invocation of privilege does not give rise to inference sufficient to avoid summary judgment).
369. See Hiley v. United States, 807 F.2d 623, 628 (7th Cir. 1986);
370. Mount Vernon Sav. & Loan Ass'n. v. Partridge Assoc., 679 F. Supp. 522, 529 (D. Md. 1987);
371. Stop & Shop Co. v. Interstate Cigar Co., 110 F.R.D. 105, 108 (D. Mass. 1986).
372. Wansong v. Wansong, 478 N.E.2d 1270, 1272 (Mass. 1985).
373. SEC v. Graystone Nash, Inc., 25 F.3d 187, 192 (3d Cir. 1994);
374. United States v. Parcels of Land, 903 F.2d 36, 44-45 (1st Cir. .1990);
375. Black Panther Party v. Smith, 661 F.2d. 1243, 1266 (D.C. Cir. 1981);
376. Wehling v. CBS, 608 F.2d 1084, 1088 (5th Cir. 1980).
377. Clients might be concerned that if they claim, their Fifth Amendment privilege against self-incrimination the employer will make assumptions about their status and report them to the Bureau of Immigration and Customs Enforcement (BICE). While this risk does exist, employers also face the risk of incriminating themselves if they knew, or should have known, that the employee lacked proper work authorization. See Schnapper, supra note 151, at 54.
378. Model Rule of Professional Conduct 1.2(a) states, "a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued." MODEL RULES OF PROF'L CONDUCT R. 1.2(a) (2007). Objectives are defined as those decisions that directly affect the ultimate resolution of the case or the substantive rights of the client.
379. See ANNOTATED MODEL RULES OF PROF'L CONDUCT 30-31 (5th ed. 2003) [hereinafter ANNOTATED MODEL RULES]. The claim, of a client's privilege against self-incrimination afforded by the Fifth Amendment could impact the ultimate resolution of the case and affect the client's substantive rights.
380. Dean Wigmore's classic statement of the privilege, as reformulated in a modern legal ethics text, contains eight elements: 1) where legal advice is sought; 2) from a professional legal advisor in his capacity as such; 3) the communications relating to that purpose; 4) made in confidence; 5) by the client; 6) are at the client's instance permanently protected; 7) from disclosure by himself or the lawyer; 8) except if the privilege is waived. See GEOFFREY HAZARD, SUSAN KONIAK & ROGER CRAMTON, THE LAW AND ETHICS OF LAWYERING 206 (3d ed. 1999).
381. Compare Restatement section 68, which permits invocation of the privilege where: "1. a communication; 2. [is] made between privileged persons; 3. in confidence; 4. for the purpose of obtaining or providing legal assistance for the client." RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 68 (2000).
382. HAZARD & HODES, supra note 24, at 9-28.
383. As stated by Professors Hazard, and Hodes, "[n]either the traditional nor the modern formulation of the privilege directly protects against compelled disclosure the substance of the underlying confidential communication; only the content of the communication between client and lawyer is protected. Thus a client may be compelled to testify about the underlying facts of an occurrence or transaction (unless able to refuse under the Fifth Amendment, for example), but not whether those facts were related to the client's lawyer."
384. Id. at 9-26. This distinction between the communication and the facts underlying the communication has long been established in. the law.
385. See Upjohn Co. v. United States, 449 U.S. 383, 386, 395 (1981).
386. A lawyer must assert the attorney-client privilege whenever it is not frivolous to do so. ABA Standing Comm. on Ethics and Prof'l Responsibility, Formal Op. 94-385 (1994). Once a court rules that the privilege does not apply and subsequently orders disclosure, a lawyer is relieved of her ethical duty to claim the privilege. Once the ethical constraint is lifted, disclosure becomes mandatory under Rule 1.6(b)(6). HAZARD & HODES, supra note 24, at 9-33.
387. See RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 82 (2000).
388. HAZARD & HODES, supra note 24, at 9-41 to 9-42.
389. For a more detailed discussion of whether or not a lawyer is assisting the client in a crime or fraud by representing them in an employment-related civil case as well as whether any of these offenses constitute "continuing crimes," see supra Part II.
390. See infra notes 176-78 and accompanying text.
391. Rules 4.1(b) and 3.3(b) each involve a balancing of various interests. Rule 4.1(b) involves the balance between two important values in the law of lawyering: maintaining confidentiality of client information and ensuring that lawyers represent client interests only within the bounds of the law and do not become participants in wrongdoing. MODEL RULES OF PROF'L CONDUCT R. 4.1(b) (2007). Rule 3.3(b) is a balance between duties to the client and duties to the tribunal. Based on the language and interpretation of Rule 3.3(b), where there is a danger that the tribunal will be misled, a lawyer may be required to forsake his client's immediate and narrow interests in favor of the interest of the administration of justice.
392. Id R. 3.3(b).
393. Id R. 1.6 cmt. 3.
394. Id. R. 1.6 cmt. 4.
395. HAZARD & HODES, supra note 24, at 9-60. For a critique of the inclusion of information in the public domain under the definition of confidentiality,
396. see Allan W. Vestal, Former Client Censorship of Academic Scholarship, 43 SYRACUSE L. REV. 1247, 1247-48 (1992) (describing a former client who threatened to report the author to the disciplinary authorities for publishing an article that contained public information about a case).
397. For cases involving the disclosure of information generally known, see, for example, In re Anonymous, 654 N.E.2d 1128, 1129 (Ind. 1995) (finding that lawyer violated Rule 1.6 by disclosing information relating to representation of client, even though information "was readily available from public sources and not confidential in nature");
398. Lawyer Disciplinary Bd. v. McGraw, 461 S.E.2d 850, 851 (W. Va. 1995) ("The ethical duty of confidentiality is not nullified by the fact that the information is part of a public record or by the fact that someone else is privy to it.");
399. State Bar of Ariz. Comm. on the Rules of Prof'l Conduct, Op. 2000-11 (2000) ("[T]he lawyer is required to maintain the confidentiality of information relating to representation even if the information is a matter of public record.").
400. But cf. In re Sellers, 669 So. 2d 1204, 1206 (La. 1996) (finding that lawyer violated Rule 4.1 by failing to disclose existence of collateral mortgage to third party because "mortgage was filed in the public record, disclosure of its existence could not be a confidential communication, and was not prohibited by Rule 1.6");
401. In re Detention of Williams, 22 P.3d 283, 286 (Wash. Ct. App. 2001) (stating that the fact that client gave social security records to lawyer did not render such documents "confidential" under Rule 1.6 and therefore "undiscoverable").
402. To contrast the public domain inclusion, see RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 59 (2000), under which information that is generally known is not confidential.
403. For these purposes, the term, "status" includes the fact of lawful immigration documentation as well as the manner of entry and of obtaining employment. Because information about lawful immigration documentation, manner of entry and of obtaining employment all impact the legal relief a client may be entitled to, such information should be considered related to the proceedings.
404. See Schnapper, supra note 151, at 54 (explaining that plaintiffs should be able to avoid discovery requests about immigration status by limiting the relief requested).
405. See HAZARD & HODES, supra note 24, at 9-6 to 9-7.
406. MODEL RULES OF PROF'L CONDUCT R. 1.6(a) (2007).
407. Id. R. 1.6 cmt. 5;
408. see also RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 61 (2000) (permitting disclosures that advance the interests of clients).
409. ABA Comm. on Prof'l Ethics and Grievances, Formal Op. 01-421 (2001).
410. ABA Comm. on Prof'l Ethics and Grievances, Formal Op. 98-411 (1998).
411. MODEL RULES OF PROF'L CONDUCT R. 1.6(a) (2007).
412. Id. R. 1.0(e).
413. This definition was added to the terminology section of the rules in 2002 upon the recommendation of the Ethics 2000 Commission and replaced the prior term which was "consent after consultation." HAZARD & HODES, supra note 24, at 2A-6 to 2A-7. ABA's House of Delegates accepted this recommendation, not as a substantive change, but as a way to adopt a more frequently used and easily understood term.
414. See ABA Report to the House of Delegates, No. 401 (Aug. 2001), Model Rule 1.6, Reporter's Explanation of Changes.
415. See infra Part V for a discussion of those instances in which clients might want to strategically disclose and the corresponding obligations of the lawyer in that context.
416. A. lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death, or substantial bodily harm; (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services; (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services; (4) to secure legal advice about the lawyer's compliance with these Rules; (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or (6) to comply with other law or a court order. MODEL RULES OF PROF'L CONDUCT R. 1.6(b) (2007). Rule 1.6(b)(2) and (b)(3) were added in 2003
417. and are not yet in effect in many states. HAZARD & HODES, supra note 24, at 9-7 to 9-8.
418. MODEL RULES OF PROF'L CONDUCT R. 1.6 cmt. 14 (2007) (explaining the lawyer may disclose information only "to the extent" the lawyer "reasonably believes necessary" to carry out the purpose of the exception).
419. Id. R. 1.6 cmt. 15. However, some states have adopted versions of Rule 1.6 that use the term "shall" as opposed to "may" when addressing the exception to the general rule of confidentiality.
420. See, e.g., III. RULES OF PROF'L CONDUCT R. 1.6(b) (2007) ("A lawyer shall reveal information about a client to the extent it appears necessary to prevent the client from committing an. act that would, result in death or serious bodily harm.");
421. WIS. RULES OF PROF'L CONDUCT FOR ATTORNEYS R. 1.6 (2007) ("A lawyer shall reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm or in substantial injury to the financial interest or property of another.");
422. N.M. RULES OF PROF'L CONDUCT R. 1.6 (B) (2007) ("To prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm, a lawyer should reveal such information to the extent the lawyer reasonably believes necessary.");
423. PA. PROF'L CONDUCT R. 1.6(b) (2007) ("A lawyer shall reveal such information if necessary to comply with the duties stated in Rule 3.3.").
424. If a court orders disclosure and all of the lawyer's challenges to that order have failed, then. an. otherwise permissive disclosure option becomes mandatory. See HAZARD & HODES, supra note 24, at 9-109.
425. Rule 1.6(b) states, "A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm . . . . ." MODEL RULES OF PROF'L CONDUCT R. 1.6(b)(1) (2007).
426. . Rule 1.6(b) states, "A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: . . . (4) to secure legal advice about the lawyer's compliance with these Rules...." Id. R. 1.6(b)(4).
427. A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: . . . (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim, against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client. . . . Id. R. 1.6(b)(5).
428. A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: . . . (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services . . . . Id. R. 1.6(b)(2). Scholars have noted that the scope of the rule is narrowed by two limitations: it must be the client's crime or fraud that threatens another with financial ruin and it only applies if the client has used or is using the lawyer's services in furtherance of the scheme.
429. HAZARD & HODES, supra note 24, at 9-8.
430. A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: . . . (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain, to result or has resulted from the client's commission of a crime or fraud in. furtherance of which the client has used the lawyer's services. MODEL RULES OF PROF'L CONDUCT R. 1.6(b)(3) (2007).
431. For a description of the history leading to the 2003 adoption, of (b)(2) and (b)(3), see HAZARD & HODES, supra note 24, at 9-89 to 9-97.
432. Arguably, the government is losing some tax dollars if undocumented workers fail to pay taxes, but this incorrectly assumes that all undocumented workers fail to pay taxes, and, even if some portion of workers do not, it would be hard to argue that this shortfall is bringing the government to the brink of financial ruin.
433. See Karen Brooks, The Give-and-Take of Illegal Immigration Study: Their Taxes Lift State, But Services Drain Counties, DALLAS MORNING NEWS, Dec. 8, 2006, at IA (citing to a report that found that, while illegal immigrants cost Texas $1.16 billion in services, they pay $1.58 billion in taxes and fees every year for a profit of $420 million);
434. Shikha Dalmia, Immigrants Contribute More to the Economy Than They Take-(Illegal Immigrants Pay), L.A. BUS. J., May 22, 2006, at 51 (stating that eight million of the approximately twelve million illegal aliens in the United States file personal income taxes);
435. Eduardo Porter, Here Illegally, Working Hard and Paying Taxes, N.Y. TIMES, June 19, 2006, at A1 (explaining that many of the undocumented workers in the United States who get regular pay checks pay taxes).
436. Both Rule 1.6(b)(2) and Rule 1.6(b)(3) require lawyer involvement. Thus, if a lawyer simply discovers a client's planned or ongoing fraud, she is not permitted to disclose information despite a desire to do so. HAZARD & HODES, supra note 24, at 9-91.
437. MODEL RULES OF PROF'L CONDUCT R. 3.3(b) (2007).
438. In 1983, when the Model Rules of Professional Conduct were first promulgated, there were four specific duties of candor to the tribunal set out in Rule 3.3(a). RONALD D. ROTUNDA & JOHN S. DZIENKOWSKI, LEGAL ETHICS: THE LAWYER'S DESKBOOK ON PROFESSIONAL RESPONSIBILITY 643 (2005). The second duty required a lawyer to disclose information when silence would be tantamount to assisting a client's crime or fraud.
439. Id.
440. Based, upon the recommendations of the Ethics 2000 Commission, Rule 3.3 was revised. HAZARD & HODES, supra note 24, at 29-5.
441. The duty to disclose information when silence would amount to assisting a client's crime or fraud was eliminated and a more general duty was imposed under Rule 3.3(b).
442. Id. For an explanation of the specific reasons for the changes made by the Ethics 2000 Commission,
443. see Margaret Colgate Love, The Revised ABA Model Rules of Professional Conduct: Summary of the Work of Ethics 2000, 15 GEO. J. LEGAL ETHICS 441, 465-66 (2002), which explains: The Commission deleted paragraph (a)(2) of the present rule, and addressed the lawyer's duty to disclose crime or fraud in connection with an adjudicative proceeding more generally in a new paragraph (b). . . . The new paragraph (b) provides that a lawyer who knows that any person, including the lawyer's client, intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding, shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A new comment identifies the type of conduct sought to be reached under the rule: '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.' New commentary describes remedial measures short of disclosure, including remonstrating with the client, consulting with the client about the lawyer's duty of candor to the tribunal, and withdrawal from the representation.
444. MODEL RULES OF PROF'L CONDUCT R. 3.3(b) (2007);
445. see HAZARD & HODES, supra note 24, at 29-6 ("Lawyers are not all-purpose 'truth police'; the duties of candor are therefore imposed only where the lawyer can be said to have contributed [even if unwittingly] to the court's being led astray.").
446. According to Professors Hazard and Hodes, "In these situations, the conception of lawyer as 'officer of the court' is given its maximum, force." HAZARD & HODES, supra note 24, at 29-4.
447. MODEL RULES OF PROF'L CONDUCT R. 3.3(c) (2007) ("The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.").
448. Id. R. 3.3 cmt. 1 ("This Rule governs the conduct of a lawyer who is representing a client in the proceedings of a tribunal. . . . It also applies when the lawyer is representing a client in an ancillary proceeding conducted pursuant to the tribunal's adjudicative authority, such as a deposition.").
449. Id. R. 3.3 cmt. 12.
450. Id. R. 4.1.
451. For a description of the changes made to Rule 4.1 by the Ethics 2000 Commission, see Love, supra note 193, at 466, which states: "The Commission made no change in the text of Rule 4.1 ("Truthfulness in Statements to Others') but clarified the duty imposed by paragraph (b) (a lawyer may not knowingly 'fail to disclose a material, fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure would be prohibited by Rule 1.6'). This duty is identified in commentary as a 'specific application' of the general duty set forth in Rule 1.2(d),... and it is most frequently invoked where a client's wrong-doing involves a lie or misrepresentation to a third party. The commentary explains the remedial measures the lawyer may be required to take to avoid assisting client crime or fraud, subject to the lawyer's duty of confidentiality to the client under Rule 1.6.
452. HAZARD & HODES, supra note 24, at 37-3.
453. In. some jurisdictions, Rule 4.1(b) may have broader application, as some jurisdictions have defined fraud and misrepresentation to include "mere nonfeasance," a "failure to disclose material facts even absent prior creation of the misapprehension." Id. at 37-12.
454. Id. at 37-8.
455. MODEL RULES OF PROF'L CONDUCT R. 4.1(b) (2007).
456. For examples of cases in which lawyers have either directly participated in a client's crime or fraud or advised the client to commit a crime or fraud, see supra notes 48-49 and accompanying text.
457. For examples of cases in which lawyers are merely aware that the client has committed or is committing a crime or fraud, see supra note 51 and accompanying text.
458. MODEL RULES OF PROF'L CONDUCT R. 4.1(b) (2007). Rule 4.1(b) does not require disclosure of confidential information even to avoid assisting a client's crime or fraud.
459. See ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 93-375 (1993) (opining that a lawyer representing a client in a bank examination is under no duty to disclose weaknesses in client's case or otherwise reveal confidential information to third parties, unless the lawyer becomes a party to the fraud). This final limitation on Rule 4.1 is not without detractors. Professors Hazard and Hodes argue that Rule 4..1(b) does not comport with the other model rules that address fraud and misrepresentation, including Rules 1.2(d), 1.6(b), and 3.3(a), in that Rule 4..1(b) appears to give automatic preference to the confidentiality provisions of Rule 1.6 and neglects the complexity of the relationship between the confidentiality and justice obligations.
460. HAZARD & HODES, supra note 24, at 37-3 to 37-4. The authors argue for a saving interpretation of the rules: Silence assists client fraud in situations to which Rule 4.1(b) applies; the lawyer must therefore speak up to avoid providing the assistance that is forbidden by Rule 1.2(d). According to Rule 4.1(b), the lawyer may not speak if prevented from doing so by Rule 1.6; however, Rule 1.6 does not prevent her from speaking, because she is required by law - Rule 1.2(d) - to speak.
461. Id. at 37-14. Thus, the action would fall under the "other law" exception to Rule 1.6(b)(6) and disclosure would be permitted.
462. Id. at 37-15. The authors believe that a lawyer can "maintain total confidentiality only when he has not yet drafted any offending papers and has not advanced his client's scheme by his silence."
463. Id. In this situation, "the lawyer has knowledge only of a possible future fraud and may not warn the potential victim under any version of Rule 1.6."
464. Id. Several jurisdictions have amended Rule 4.1(b) to require disclosure of information even if it is protected by Rule 1.6. See, e.g., THE MD. LAWYERS' RULES OF PROF'L CONDUCT R. 4.1 (2002);
465. NJ. RULES OF PROF'L CONDUCT R. 4.1 (2006).
466. See generally ANNOTATED MODEL RULES,
467. Morgan Cloud, Privileges Lost? Privileges Retained?, 69 TENN. L. REV. 65, 92 (2001) (asserting that many dilemmas created by "contradictory and far from self-explanatory commands" of Rules 1.2, 1.6, 1.8, 1.16, 3.3, and 4.1 could be "resolved by permitting disclosures to prevent or rectify harms suffered by third parties because of crimes or frauds committed by the lawyers' clients").
468. MODEL RULES OF PROF'L CONDUCT R. 3.3(b) (2007).
469. For an analysis of the term "relating to" under Rule 1.6(a), see supra notes 169-73 and accompanying text.
470. MODEL RULES OF PROF'L CONDUCT R. 3.3 cmt. 12 (2007).
471. Id.
472. Rule 3.3(b) deals with other frauds outside of the area of evidentiary frauds, such as bribes, intimidation or unlawful communications with a witness, juror, court official or other participant in the proceeding, unlawfully [sic] destruction or concealment of documents or other evidence or failure to disclose information to the tribunal when required by law to do so. ROTUNDA & DZIENKOWSKI, supra note 193, at 664.
473. MODEL RULES OF PROF'L CONDUCT R. 4.1(b) (2007);
474. see also HAZARD & HODES, supra note 24, at 37-8 ("[Representations that do not go to the heart of the matter may be considered to be 'not material.'").
475. For an argument that lawyers should not be required to correct immaterial falsehoods that have no bearing on the issues before the court, even if made in the courtroom setting, see W. William Hodes, Two Cheers for Lying (About Immaterial Matters), PROF. LAWYER, May 1994, at 4.
476. MODEL RULES OF PROF' L CONDUCT R. 4.1 (b) (2007).
477. See supra Part II.
478. MODEL RULES OF PROF' L CONDUCT R. 3.3 (c) (2007).
479. Id. R. 4.1(b).
480. The employer could be liable, both civilly and criminally, for not obtaining an I-9 form and not ensuring that the employee was lawfully permitted to work. See, e.g., 8 U.S.C. § 1324a(e)(4)(A) (2000) (subjecting to civil fines employers who hire, recruit or refer for a fee, or employ aliens knowing the aliens are unauthorized aliens);
481. id. § 1324a(f)(1) (subjecting to criminal penalties employers who hire, recruit or refer for a fee, or employ aliens knowing the aliens are unauthorized aliens).
482. For a response to the argument that holding oneself out for work is an implicit representation of proper authorization to work and thus constitutes fraud, see supra note 56.
483. See 8 U.S.C. § 1325(a) (2000).
484. United States v. Rincon-Jimenez, 595 F.2d 1192, 1193-94 (9th Cir. 1979) (finding that a violation of 8 U.S.C. § 1325 is consummated at the time of entering the United States and is not considered a continuing offense).
485. The employer, on the other hand, may face criminal or civil liability. See supra note 15.1 and accompanying text.
486. See, e.g., Gabu Than Chellen v. John Pickle Co., 446 F. Supp. 2d 1247, 1276-78 (N.D. Okla. 2006);
487. Zavala v. Wal-Mart Stores, Inc., 393 F. Supp. 2d 295, 320-25 (D.N.J. 2005); Martinez v. Mecca Farms, Inc., 213 F.R.D. 601, 604-05 (S.D. Fla. 2002);
488. Gomez v. Falco, 792 N.Y.S.2d 769, 769 (App. Div. 2004).
489. Galaviz-Zamora v. Brady Farms, Inc., 230 F.R.D. 499, 500-02 (W.D. Mich. 2005) (finding that immigration status is not relevant to damages for unpaid wages, nor to standing, class certification, or credibility);
490. Cortez v. Medina's Landscaping, No. 00 C 6320, 2002 U.S. Dist. LEXIS 18831, at *l-*3 (N.D. 111. Sept. 30, 2002) (denying a motion to compel discovery concerning the plaintiff's citizenship status in a case where unpaid wages for work, but not back-pay, is at issue);
491. Flores v. Amigon, 233 F. Supp. 2d. 462 (E.D.N.Y. 2002) (determining that immigration status is undiscoverable in a claim for unpaid wages and overtime for time worked under the Fair Labor Standards Act);
492. Zeng Liu v. Donna Karan Int'l, Inc., 207 F. Supp. 2d 191, 192-93 (S.D.N.Y. 2002) (denying discovery of plaintiff's immigration status on the grounds that it is not relevant to a claim for unpaid wages for time worked);
493. Llerena v. 302 W. 12th St. Condo., 799 N.Y.S.2d 161 (Sup. Ct. 2004) (refusing to compel evidence relating to immigration status in a case involving tort and state labor law remedies for unpaid wages for time worked).
494. 42 U.S.C. §§ 408(a)(7)-(8) (2000). A person can be fined, or imprisoned for not more than five years, or both, for such offense. Id. § 408(a).
495. United States v. Payne, 978 F.2d 1177, 1180 (10th Cir. 1992) (finding that falsely representing a Social Security number is not a continuing offense); United States v. Joseph, 765 F. Supp. 326, 330 (E.D. La. 1991) (finding that the crime of using a false Social Security number with the intent to deceive is completed when the false representation is made).
496. See cases cited supra note 220.
497. HAZARD & HODES, supra note 24 at 2-6 to 2-7.
498. See supra notes 182-92 and accompanying text.
499. See supra notes 69-71 and accompanying text.
500. See supra notes 42-45 and accompanying text; see also 18 U.S.C. § 1546(a) (Supp. V 2006).
501. If status is relevant, as it may be in some discriminatory-termination cases, or in some aspects of a discriminatory-termination case (e.g., damages), then status could be required to be disclosed in discovery and at trial unless the employee asserts a privilege. See supra Part III.A.
502. In. addition to ethical limitations, the employer may take action that raises the specter of potential criminal liability. For example, if the employer signed an I-9 form verifying that the employee was documented, but either knew, or had reason to know, that the employee lacked lawful status, the employer might subject himself to criminal liability for knowingly hiring an undocumented worker. See 8 U.S.C. § 1324a(a) (2000) (subjecting employers who violate IRCA to criminal prosecution).
503. MODEL RULES OF PROF' L CONDUCT R. 4.4(a) (2007).
504. Id. R. 8.4(d).
505. Id. R. 8.4 cmt. 3. Further, while there is no explicit language in the rules themselves about harassment, the preamble to the Model Rules states that "[a] lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others." Id. pmbl. 5.
506. Id. R. 3.4(d).
507. MODEL CODE OF PROF'L RESPONSIBILITY DR 7-.105(A) (1980). Some states have retained the old Model Code approach.
508. See, e.g., CONN. RULES OF PROF'L CONDUCT R. 3.4(7) (1986);
509. D.C. RULES OF PROF'L CONDUCT R. 8.4(g) (1990);
510. III. RULES OF PROF'L CONDUCT R. 1.2(e) (1990); ME. BAR RULES R. 3.6(c) (1986);
511. TEX. DISCIPLINARY RULES OF PROF'L CONDUCT R. 4.04(b)(1) (1989).
512. See HAZARD & HODES, supra note 24, at 40-8 (explaining that the omission was deliberate because its inclusion was viewed as redundant);
513. CHARLES W. WOLFRAM, MODERN LEGAL ETHICS 718 (1986) (explaining that the drafters of the Model Rules deliberately omitted DR 7-105(A)'s language based, upon the belief that "extortionate, fraudulent, or otherwise abusive threats were covered by other, more general prohibitions in the Model Rules and thus that there was no need to outlaw such threats specifically").
514. For an exploration of when threatening criminal action may be an ethics violation, see ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 94-383 (1994) (examining whether a lawyer can use the threat of filing a disciplinary complaint or report against opposing counsel to obtain advantage in a civil case);
515. ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 92-363 (1992) (examining when a threat to bring criminal charges for the purpose of advancing a civil claim would violate the ethics rules).
516. ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 92-363 (1992).
517. For a discussion of the purpose behind the relatedness requirement, see id. ("A relatedness requirement avoids exposure to the charge of compounding .... It also tends to ensure that negotiations will be focused on the true value of the civil claim, which presumably includes any criminal liability arising from the same facts or transaction, and discourages exploitation of extraneous matters that have nothing to do with evaluating that claim.").
518. MODEL RULES OF PROF'L CONDUCT R. 8.4 (2007) ("It is professional misconduct for a lawyer to: . . . (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.").
519. MODEL PENAL CODE § 223.4(2) (2001).
520. While the lawyer's actions might not rise to the level of extortion, if the lawyer uses even a well-founded threat of criminal charges merely to harass a third person, the lawyer's actions could violate Rule 4.4(a), which states, "[i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person." MODEL RULES OF PROF'L CONDUCT R. 4.4(a) (2007);
521. see also ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 92-363 (1992).
522. MODEL RULES OF PROF'L CONDUCT R. 4.1 (2007) ("In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person . . . .").
523. Id. R. 4.4(a) ("[A] lawyer shall not us[e] means that have no substantial purpose other than to embarrass, delay, or burden a third person . . . .");
524. see also ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 92-363 (1992) ("A lawyer who uses even a well-founded threat of criminal charges merely to harass a third person violates Rule 4.4.").
525. For a description of the potential consequences to the plaintiff of claiming the Fifth Amendment privilege, see supra notes 159-64 and accompanying text.
526. See supra notes 9-11 and accompanying text (describing some of the potential dangers that could accompany disclosure of immigration status).
527. Some clients determine that money is more important to them than a deportation, order because they are willing to go back and forth across the border. In such instances, what might be better for individual clients might not be better for the larger client community. While the possibility of differing interests of individual clients and the larger community raise interesting questions about the scope and nature of a lawyer's advice, such inquiry is beyond the scope of this Article.
528. MODEL RULES OF PROF'L CONDUCT R. 1.2(a) (2007).
529. For a discussion of the historical development of ethical limitations on the allocation of decision-making authority, see Judith L. Maute, Allocation of Decisionmaking Authority Under the Model Rules of Professional Conduct, 17 U.C. DAVIS L. REV. 1049, 1053-57 (1984).
530. For a description of the specific changes made to Rule 1.2(a) in 2002, see Love, supra note 193, explaining: The Commission was concerned that the current formulation sends conflicting signals: on the one hand it might be read to require consultation with the client before the lawyer takes any action; and on the other it suggests that the lawyer is not obliged to abide by the client's decisions with respect to the 'means,' as opposed to the 'objectives,' of the representation. After considering and rejecting a number of alternative formulations, the Commission decided to add a new sentence to clarify that '[a] lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation,' and to leave the resolution of disagreements with clients about means to be worked out within a framework defined by the law of agency, the right of the client to discharge the lawyer, and the right of the lawyer to withdraw from the representation, if the lawyer has a fundamental disagreement with the client. To emphasize the lawyer's obligation to consult, a cross reference to Rule 1.4 ('Communication') was added to the text.
531. Id. at 447.
532. See, e.g., Blanton. v. Womancare Inc., 696 P.2d 645, 650-51 (Cal. 1985) (finding that decisions that would impair substantive rights differ from procedural decisions "both in the degree to which they affect the client's interest, and in the degree to which they involve matters of judgment which extend beyond technical competence");
533. Conn. Bar Ass'n Comm. on Prof'l Ethics, Informal Op. 97-37 (1997) (holding that the decision about whether to join a third party in civil action is an issue relating to the objectives of representation and is therefore a matter for the client to decide). One scholar has described the attorney-client relationship as similar to a joint venture in which each venturer presumptively takes on certain tasks, but without a sharp dividing line between their responsibilities.
534. Maute, supra note 248, at 1066-69.
535. ANNOTATED MODEL RULES, supra note 159, at 30-31.
536. HAZARD & HODES, supra note 24, at 5-13.
537. For examples of cases distinguishing between, "objectives" and "means," see United States v. Beebe, 180 U.S. 343, 352 (1901) (finding that decision, whether to settle belongs to client rather than lawyer);
538. Hawkeye-Sec Ins. Co. v. Indemnity Ins. Co., 260 F.2d 361, 363 (10th Cir. 1958) (finding that decision whether to appeal belongs to client rather than lawyer). Failure to respect this allocation of decision-making responsibility constitutes a breach of professional responsibility on the part of the lawyer.
539. See, e.g., Silver v. State Bar, 528 P.2d 1157, 1161-62 (Cal. 1974) (lawyer disciplined for dismissing appeal without client's consent and with a view to his own gain);
540. In re Stern, 406 A.2d 970, 972 (N.J. 1979) (lawyer disciplined for settling matter over client's objection);
541. In re Paauwe, 654 P.2d 1117, 1120 (Or. 1982) (lawyer disciplined for appealing case without client consent).
542. MODEL RULES OF PROF'L CONDUCT R. 1.2(a) (2007). This rule is subject to a few limitations, such as the limitation that the objectives must be lawful.
543. HAZARD & HODES, supra note 24, at 5-14. If, however, proper specific objectives are identified by the client and explained to the lawyer, a lawyer's failure to pursue them will constitute a violation of Rule 1.2(a).
544. See, e.g., People v. McCaffrey, 925 P.2d 269, 271 (Colo. 1996) (finding that lawyer's delay in filing suit until statute of limitations lapsed violated Rule 1.2(a));
545. In re Hagedorn, 725 N.E.2d 397, 399-400 (Ind. 2000) (holding that lawyer hired to assist clients in adopting a child failed to take steps to effectuate adoption, thereby violating Rules 1.1, 1.2(a), 1.3, and 1.4).
546. MODEL RULES OF PROF'L CONDUCT R. 1.2(a) (2007) ("A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation."). Thus, there may be circumstances in which the lawyer could make a decision that a particular means or objective would be approved by the client, in the absence of an explicit discussion.
547. HAZARD & HODES, supra note 24, at 5-13 to 5-14. The choice of means is still subject to mandatory "consultation" with the client as provided for in Rule 1.4.
548. See MODEL RULES OF PROF'L CONDUCT R. 1.4 (2007).
549. See Marcy Strauss, Toward a Revised Model of Attorney-Client Relationship: The Argument for Autonomy, 65 N.C. L. REV. 315, 324 (1987) ("[T]hat which is often thought to be an end might really be a means; that which is assumed to be just a means could be an end to a particular client."). This distinction will be difficult to adhere to where procedure begins to blend into substance. For example, some tactical decisions are so crucial to the litigation that they impact the objectives of the representation and clients will want to make the decision.
550. HAZARD & HODES, supra note 24, at 5-14 to 5-14.1 ("[Disagreement is especially likely where the lines between an 'objective' and 'means' to achieving that objective are most indistinct. In order to resolve certain commonly arising allocation questions of this sort, Rule 1.2(a) specifies important decisions that are to remain under the exclusive control of the client."). Given this blurring of the express delineation, Professors Hazard and Hodes have suggested that "[t]he more a decision marks a critical turning point in the representation, whether for tactical, strategic, economic, or even political and moral reasons, the more the lawyer should defer to the client."
551. Id. at 5-17.
552. See, e.g., DAVID A. BINDER ET AL., LAWYERS AS COUNSELORS: A CLIENT-CENTERED APPROACH 266-67 (1991) (criticizing courts and professional standards that allocate decisions regarding the "ends" of the representation to clients and those concerning the "means" to lawyers);
553. DOUGLAS E. ROSENTHAL, LAWYER AND CLIENT: WHO'S IN CHARGE? .154 (1974) (suggesting a participatory model of client counseling in which clients are active decision makers in addressing their problems and share control and decision-making responsibility with the lawyer);
554. Arnold I. Siegel, Abandoning the Agency Model of the Lawyer-Client Relationship: A New Approach for Deciding Authority Disputes, 69 NEB. L. REV. 473 (1990);
555. Mark Spiegel, Lawyering and Client Decisionmaking: Informed Consent and the Legal Profession, 128 U. PA. L. REV. 41, 43 (1979) (arguing that the distinction, which purportedly gives the lawyer control over procedural and tactical decisions and clients control over the subject matter of the litigation is inappropriate).
556. BINDER ET AL., supra note 255, at 268 (proposing that lawyers should defer to clients "whenever a lawyer using 'such skill, prudence, and diligence as other members of the profession commonly possess and. exercise,' would or should know that a pending decision is likely to have a substantial legal or nonlegal impact on a cllent"(quoting W. PROSSER & W.P. KEETON, THE LAW OF TORTS 185-93 (1984))).
557. In. terms of the technical or means-based decisions, Binder, Bergman and Price state that such issues are "generally for [the lawyer] alone to decide, even though they may have a substantial impact," unless that impact is "beyond that normally associated with the exercise of lawyering skills and crafts."
558. Id. at 270 (emphasis added). Finally, the authors explain that "[i]n counseling clients, lawyers should provide clients with a reasonable opportunity to identify and evaluate those alternatives and consequences that similarly situated clients usually find pivotal or pertinent."
559. Id. at 275. ROSENTHAL, supra note 255, at 154 (suggesting a participatory model of client counseling in which clients are active decision makers in addressing their problems and share control and decision-making responsibility with the lawyer);
560. Siegel, supra note 255, at 515-27 (proposing the development of an informed consent doctrine that would account for the interests of the client, lawyer, and the public). Additionally, various authors have written about decision making between the lawyer and client in specific contexts.
561. See, e.g., Thomas F. Geraghty & Will Rhee, Learning from Tragedy: Representing Children in Discretionary Transfer Hearings, 33 WAKE FOREST L. REV. 595 (1988) (discussing decision making in the context of representing children);
562. Ann Southworth, Lawyer-Client Decisionmaking in Civil Rights and Poverty Practice: An Empirical Study of Lawyers' Norms, 9 GEO. J. LEGAL ETHICS 1101, 1131-47 (1996) (examining lawyer-client decision making in the context of poverty law and civil rights practices);
563. Rodney J. Uphoff & Peter B. Wood, The Allocation of Decisionmaking Between Defense Counsel and Criminal Defendant: An Empirical Study of Attorney-Client Decisionmaking, 47 U. KAN. L. REV. 1 (1998) (exploring the attorney-client decision-making paradigm in the context of criminal defense);
564. Tracy N. Zlock, The Native American Tribe as a Client: An Ethical Analysis, 10 GEO. J. LEGAL ETHICS 159 (1996) (addressing the problem of allocation of decision-making authority when representing Native American tribes).
565. What if, for example, there is a disagreement between the lawyer and the client regarding who gets to make this decision? Rule 1.2 does not specify an exact procedure for resolving such a disagreement. The lack of specificity is due in part to the "varied nature of the matters about which a lawyer and client might disagree and because the actions in question may implicate the interests of a tribunal or other persons." MODEL RULES OF PROF'L CONDUCT R. 1.2 cmt. 2 (2007).
566. If, after consultation with the client, there is no mutually agreeable solution, the lawyer could characterize the disagreement as fundamental and seek permission to withdraw from the representation. Id, R. 1.16(b)(4).
567. The client could also discharge the lawyer if unsatisfied with the service being provided. Id. R. 1.16(a)(3).
568. Of course there are other ethical rules that would impact whether or not a lawyer can disclose or must disclose in this situation. For a detailed discussion of ethical limitations when immigration status is relevant to the case, see supra Part III. A.
569. See Rivera v. NIBCO, Inc., 364 F.3d 1057, 1064 (9th Cir. 2004), cert. denied, 544 U.S. 905 (2005) ("While documented workers face the possibility of retaliatory discharge for an assertion of their labor and civil rights, undocumented workers confront the harsher reality that, in addition to possible discharge, their employer will likely report them to the INS and they will be subjected to deportation proceedings or criminal prosecution.").
570. For a description of potential criminal liability, see supra notes 31-37 and accompanying text. Finally, a client who is found to have been in the United States unlawfully for a year or more and who thereafter seeks re-admission into the United States will be barred from, admission for ten years. 8 U.S.C. § 1182(a)(9)(B)(i)(II) (2000).
571. A general practice of permitting such discovery might deter litigation by documented workers concerned that their immigration status could later change, or that litigation might lead to revelation of immigration problems of relatives or friends. The specter of deportation arouses considerable fear among some immigrant groups; the chilling effect of discovery orders could deter legal action simply because the potential plaintiffs did not fully understand the relationship between their immigration status and civil, litigation. Schnapper, supra note 151, at 54.
572. Such a position is not without support. There are a series of cases in which courts have decided, in the context of an ongoing professional relationship, that the client's judgment should prevail even in matters of tactics, procedure, or drafting of documents.
573. See, e.g., State v. Ali, 407 S.E.2d 183, 189 (N.C. 1991) ("[W]hen counsel and a fully informed criminal defendant client reach an absolute impasse as to such tactical decisions, the client's wishes must control; this rule is in accord with the principal-agent nature of the attorney-client relationship.");
574. Olson v. Fraase, 421 N.W.2d 820, 829-30 (N.D. 1988) (explaining that the lawyer had a duty to follow client's reasonable instructions to prepare documents to create joint tenancy, despite honest belief that instructions were not in client's best interest);
575. Cultum v. Heritage House Realtors, Inc., 694 P.2d 630 (Wash. 1985);
576. Olfe v. Gordon, 286 N.W.2d 573 (Wis. 1980) (determining that a lawyer may not ignore client's wish to obtain certain type of collateral); Pa. Bar Ass'n Comm. on Legal Ethics and Prof'l Responsibility, Informal Op. 97-48 (1997) (finding that a lawyer who thinks client is mistaken in wanting to take particular legal action is obligated to either follow client's instructions or withdraw from representation).
577. See supra notes 176-78 and accompanying text.
578. HAZARD & HODES, supra note 24, at 9-6 ("As a matter of professional ethics and discipline, lawyers are obligated - with only a few narrowly drawn exceptions-to preserve their clients' confidences inviolate.").
579. See supra notes 176-78, 181-99 and accompanying text.
580. See supra notes 181-99 and accompanying text.
581. MODEL RULES OF PROF'L CONDUCT R. 1.4(2007).
582. As originally promulgated, Rule 1.4(a) simply stated that "[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information." ROTUNDA & DZIENKOWSKI, supra note 193, at 117.
583. In 2002, the Rule was amended to identify five specific requirements. MODEL RULES OF PROF'L CONDUCT R. 1.4(a) (2007). Section (b) is designed to make operational the obligations implicit in Rule 1.2, which requires that the lawyer consult with clients about the means utilized to achieve clients' objectives.
584. HAZARD & HODES, supra note 24, at 7-7.
585. MODEL RULES OF PROF'L CONDUCT R. 1.4 cmt. 2 (2007).
586. Id. R. 1.4(a) states, "A lawyer shall. . . reasonably consult with the client about the means by which the client's objectives are to be accomplished . . . ."
587. HAZARD & HODES, supra note 24, at 7-5 (finding that the duty of the lawyer to communicate with the client under Rule 1.4 is qualified by the concept of reasonableness). Thus, whether or not a lawyer has a duty to consult requires a context-sensitive analysis based on. objective factors.
588. MODEL RULES OF PROF'L CONDUCT R. 1.4 cmt. 3 (2007).
589. If the lawyer is impliedly authorized to act in certain situations, the obligation to consult is alleviated. COMM'N ON EVALUATION OF THE RULES OF PROF'L CONDUCT, REPORT TO THE ABA HOUSE OF DELEGATES (2001) (explaining changes to Model Rule 1.2).
590. MODEL RULES OF PROF'L CONDUCT R. 1.4 cmt. 5 (2007).
591. ANNOTATED MODEL RULES, supra note 159, at 93;
592. see, e.g., Attorney Grievance Comm'n v. Snyder, 793 A.2d 515 (Md. 2002) (finding that in failing to explain implications of DWI case adequately to client and incorrectly advising her that she need not appear in court for initial appearance which resulted in her arrest, attorney committed misconduct). Accordingly, a lawyer must explain the legal effect of entering an agreement or executing a legal document.
593. See, e.g., In re Morse, 470 S.E.2d 232 (Ga. 1996) (disciplining attorney for asking client to sign agreement settling worker's compensation claim without explaining its legal effect);
594. In re Ragland, 697 N.E.2d 44 (Ind. 1998) (finding attorney violated professional conduct rules in failing to explain impact of settlement and indemnity agreement);
595. see also In re Flack, 33 P.3d 1281 (Kan. 2001) (finding that by failing to meet individually with clients to explain estate plans, and relying on nonlawyer staff to explain plans to clients, attorney violated Rule 1.4(b)).
596. See, e.g., In re Sullivan, 727 A.2d 832 (Del. 1999) (finding improper the acts of a lawyer who failed to file a brief which resulted in dismissal of appeal and, more than a year later, sent a letter to client informing her there were "no claims pending" in her case);
597. In re Cable, 715 N.E.2d 396 (Ind. 1999) (finding that in failing to inform client that he was too busy to handle appeal, lawyer neglected to explain matter to the extent reasonably necessary to allow client to make informed decisions about representation);
598. Attorney Grievance Comm'n v. Cassidy, 766 A.2d 632 (Md. 2001) (finding misconduct by a lawyer who was hired to draft and record deed but failed to tell client he had been suspended, which was vital information because the law requires certification by a lawyer to record deed);
599. In re Howe, 626 N.W.2d 650 (N.D. 2001) (finding that attorney's conduct in failing to explain to client he was not following through with his commitment to reduce award to judgment resulted in client's inability to make informed decision to secure alternate counsel to complete matter before interest rate was locked and constituted misconduct).
600. In determining whether the information, and explanation provided are reasonably adequate, relevant factors include whether the client or other person is experienced in legal matters generally and in making decisions of the type involved, and whether the client or other person is independently represented by other counsel in giving the consent. Normally, such persons need less information and explanation than others, and generally a client or other person who is independently represented by other counsel in giving the consent should be assumed to have given informed consent. MODEL RULES OF PROF'L CONDUCT R. 1.0 cmt. 6 (2007);
601. see also RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 62 (2000) ("When the question concerns the lawyer's duty to the client, the client's consent is effective only if given on the basis of information and consultation reasonably appropriate in the circumstances.").
602. See HAZARD & HODES, supra note 24, at 9-65 ("[I]f a lawyer who is relying on client consent to justify disclosure of client information has not actually received consent, or has not communicated sufficiently with the client, the lawyer may be subjected to discipline.");
603. see also, e.g., In re Winkel, 577 N.W.2d 9, 11 (Wis. 1998) (finding that failure to inform clients about risk of criminal prosecution if clients surrendered business assets to bank and law firm without arranging to pay subcontractor bills amounted to failure to explain matter to clients to extent reasonably necessary to permit them to make informed decision);
604. ABA Comm. on Prof 1 Ethics and Grievances, Formal Op. 02-425 (2002) (explaining that for lawyer and client to agree to retainer provision calling for binding arbitration of disputes regarding fees and malpractice claims, lawyer must fully apprise client of advantages and disadvantages of arbitration, including informing client that arbitration normally results in client's waiver of significant rights, such as right to jury trial, broad discovery, and appeal).
605. See supra Part II.