[Federal Register Volume 63, Number 12 (Tuesday, January 20, 1998)]
[Proposed Rules]
[Pages 2901-2911]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-1192]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 63, No. 12 / Tuesday, January 20, 1998 /
Proposed Rules
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 3 and 292
[EOIR No. 112P; A.G. ORDER No. 2138-98]
RIN 1125-AA13
Executive Office for Immigration Review; Professional Conduct for
Practitioners--Rules and Procedures
AGENCY: Immigration and Naturalization Service and the Executive Office
for Immigration Review, Justice.
ACTION: Proposed rule.
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SUMMARY: This rule proposes to change the rules and procedures
concerning professional conduct for practitioners, which includes
attorneys and representatives, who practice before the Executive Office
for Immigration Review (EOIR), which includes the Board of Immigration
Appeals (the Board) and the Immigration Courts, as well as the rules
and procedures concerning professional conduct for practitioners who
practice before the Immigration and Naturalization Service (the
Service). This rule also includes a provision pursuant to section 545
of the Immigration Act of 1990, concerning sanctions against attorneys
or representatives who engage in frivolous behavior in immigration
proceedings. This rule outlines the authority EOIR has to investigate
and impose disciplinary sanctions against practitioners who practice
before its tribunals, and clarifies the authority of the Service to
investigate complaints regarding practitioners who practice before the
Service. The procedures by which disciplinary proceedings may be
initiated before EOIR against practitioners who appear before the
Service are also outlined. This proposed rule will allow EOIR and the
Service to investigate, present, and complete disciplinary proceedings
more effectively and efficiently while ensuring the due process rights
of the practitioner. This proposed rule will allow frivolous claims to
be resolved and meritorious cases to be completed quickly and without
unnecessary delay, since the need for expeditious resolution of these
cases is critical to and in the best interests of all parties involved.
DATES: Written comments must be received on or before March 23, 1998.
ADDRESSES: Please submit written comments to both Margaret M. Philbin,
General Counsel, Executive Office for Immigration Review, 5107 Leesburg
Pike, Suite 2400, Falls Church, Virginia, 22041 and Janice B. Podolny,
Associate General Counsel, Immigration and Naturalization Service, 425
I Street, NW., Room 6100, Washington, DC 20536.
FOR FURTHER INFORMATION CONTACT:
Margaret M. Philbin, General Counsel, Executive Office for Immigration
Review, 5107 Leesburg Pike, Suite 2400, Falls Church, Virginia 22041,
telephone (703) 305-0470, or Janice B. Podolny, Associate General
Counsel, Immigration and Naturalization Service, 425 I Street, NW, Room
6100, Washington, DC 20536, telephone (202) 514-2895.
SUPPLEMENTARY INFORMATION: This rule proposes to amend 8 CFR parts 3
and 292 by changing the present rules and procedures concerning
professional conduct for practitioners, which includes attorneys and
representatives, who practice before the Executive Office for
Immigration Review (EOIR ), which includes the Board of Immigration
Appeals (the Board) and the Immigration Courts. Currently, the
regulations at 8 CFR 292.3 require the Immigration and Naturalization
Service (the Service) to investigate complaints filed regarding the
conduct of attorneys and representatives practicing before both the
Service and EOIR. If the investigation establishes, to the satisfaction
of the Service, that disciplinary proceedings should be instituted, the
General Counsel of the Service serves a copy of the written charges
upon the attorney or representative and upon the Office of the Chief
Immigration Judge. The present procedure provides for the government to
be represented by a Service attorney in disciplinary proceedings before
an Immigration Judge. The decision of the Immigration Judge may be
appealed to the Board by either party.
This proposed rule includes several major changes to the current
regulation. First, it separates and distinguishes the investigation of
complaints and the disciplinary proceedings involving attorneys and
representatives practicing before EOIR from the investigation of
complaints and the disciplinary proceedings involving attorneys and
representatives practicing before the Service. Under the proposed rule,
the Office of the General Counsel of EOIR will accept complaints made
against attorneys or representatives (referred to as ``practitioners'')
who appear before the Board, the Immigration Courts, or both. The
Office of the General Counsel of the Service will accept complaints
made against practitioners who appear before the Service. The Office of
the General Counsel that receives the complaint will conduct a
preliminary inquiry. If the Office of the General Counsel of EOIR or
the Service determines that a complaint is without merit, no further
action will be taken. If the Office of the General Counsel of EOIR or
the Service determines, by a preponderance of the evidence, that a
practitioner has engaged in professional misconduct as set forth in the
rule, it will issue a Notice of Intent to Discipline to the
practitioner named in the complaint. When making a decision as to
whether a Notice of Intent to Discipline should be issued, the Office
of the General Counsel of EOIR or the Service will consider the
contents of the complaint (including the nature and recency of the
conduct or behavior of the practitioner and the harm or damages
sustained by the complainant), the results of the preliminary inquiry,
and other relevant information. The practitioner will have an
opportunity to file an answer and request a hearing.
Second, the proposed rule establishes a new disciplinary process
for the adjudication of all complaints. Upon the filing of an answer by
the practitioner, the Director of EOIR will appoint an adjudicating
official and, if a hearing is requested, will designate the time and
place of the hearing. Failure to file an answer in a timely manner will
be deemed an admission to the factual allegations set forth in the
Notice of Intent to Discipline. The recommended disciplinary sanctions
in the Notice of Intent to Discipline then will become final, unless a
motion to set aside the final order is granted. The Office of the
[[Page 2902]]
General Counsel of EOIR will represent the government in the hearing,
unless the proceeding is initiated by the Service, in which case the
Office of the General Counsel of the Service will represent the
government. The practitioner may be represented by counsel of his or
her own choice at no expense to the government. The adjudicating
official will hold a hearing, take testimony, examine witnesses, and
will report his or her findings and recommendations to the Disciplinary
Committee. The Disciplinary Committee will be a three-member panel
appointed by the Deputy Attorney General, with at least one Committee
member from EOIR. The Deputy Attorney General will designate one
Committee member to serve as Chairperson. The Disciplinary Committee
may adopt, modify, or otherwise amend the recommended disciplinary
sanctions and issue a final order which may apply to practice before
the Board and the Immigration Courts or the Service, or before all
three authorities. There is no administrative appeal from the order of
the Disciplinary Committee. A practitioner who wishes to obtain a
judicial review of a decision of the Disciplinary Committee can do so
in federal district court pursuant to 28 U.S.C. 1331.
Third, the proposed rule includes a reinstatement procedure, which
will permit a practitioner to petition for his or her reinstatement if
he or she has been expelled or, in the case of a suspension, if the
period of suspension has not yet expired.
Fourth, the proposed rule revises and restates the grounds for
disciplinary sanctions, which will be reduced from fifteen to twelve by
combining several previous grounds, eliminating several others, and
adding two new grounds. Ten of the grounds for disciplinary sanctions
will apply to all practitioners appearing before the Board, the
Immigration Courts, and the Service, while the two additional grounds
will only apply to practitioners appearing before the Board and the
Immigration Courts. Wherever possible, the grounds have been revised to
include language that is similar, if not identical, to language found
in the American Bar Association Model Rules of Professional Conduct
(1995). EOIR has made these revisions in order to provide practitioners
with a set of disciplinary standards that are widely known and accepted
within the legal profession.
For example, one of the grounds for disciplinary sanctions
prohibits the charging of grossly excessive fees. This ground has been
expanded in the proposed rule to include a number of factors to be
considered in determining whether a fee is grossly excessive, such as
the time and labor required, the fee customarily charged in the
locality for similar legal services, and the experience and ability of
the attorney. The disciplinary ground banning the solicitation of
professional employment has been revised to permit a practitioner to
solicit professional employment from a prospective client known to be
in need of legal services in a particular matter with certain
restrictions. If the practitioner has no family or prior professional
relationship with the prospective client, the practitioner must include
the words ``Advertising Material'' on the outside of the envelope of
any written communication and at the beginning and ending of any
recorded communication. This change is made in light of the United
States Supreme Court decision in Shapero v. Kentucky, 486 U.S. 466
(1988), in which the Court held that legal advertising, in the form of
targeted, direct-mail solicitation, is a form of commercial speech
protected by the First Amendment but subject to regulation, such as the
requirement that a solicitation letter bear a label identifying it as
an advertisement. Shapero, 486 U.S. at 477. The disciplinary ground
regarding false or misleading communications about a practitioner's
qualifications now includes a prohibition against a practitioner's use
of the term ``certified specialist'' in immigration and/or nationality
law, unless the practitioner has been granted such certification by the
appropriate state regulatory authority or by an organization that has
been approved by the appropriate state regulatory authority to grant
such certifications. This amendment is included in order to ensure the
public that a practitioner who holds himself or herself out as a
certified specialist does so only after demonstrating proficiency in
immigration and/or nationality law, and to prevent false, deceptive, or
misleading advertising.
One of the two new grounds for disciplinary sanctions concerns
conduct by a practitioner that constitutes ineffective assistance of
counsel as previously determined in a finding by the Board or an
Immigration Judge in an immigration proceeding. A practitioner who is
the subject of an ineffective assistance of counsel claim heretofore
has been able to plead mea culpa when an alien raises the issue on a
motion to reopen with the Board or an Immigration Judge without any
disciplinary consequences from his or her admissions. In addition, a
practitioner who is consistently accused of providing ineffective
assistance of counsel has not experienced any ramifications from such
repeated claims before the Board or an Immigration Judge. By adding
this ground to the disciplinary standard, practitioners now may face
the consequences of claims of ineffective assistance of counsel from
former clients.
A factual finding of ineffective assistance of counsel in an
immigration proceeding will be necessary in order to support the
issuance of a Notice of Intent to Discipline for this ground. A mere
grant of a motion to reopen based on a claim of ineffective assistance
of counsel, absent a specific factual finding of ineffective assistance
of counsel, will not support the issuance of a Notice of Intent to
Discipline.
Federal caselaw has repeatedly addressed the standards to be used
in determining whether an alien has been the victim of ineffective
assistance of counsel. Thus, in order for an alien to prevail on a
claim of ineffective assistance of counsel, he or she must show that
his or her counsel's performance was so ineffective as to have impinged
upon the fundamental fairness of the hearing in violation of the fifth
amendment due process clause. Rabiu v. INS, 41 F.3d 879, 882 (2d Cir.
1994). See also Lopez v. INS, 775 F.2d 1015, 1017 (9th Cir. 1985)
(ineffective assistance of counsel is denial of due process only if
proceeding was so fundamentally unfair that alien was prevented from
reasonably presenting his case); Paul v. INS, 521 F.2d 194, 199 (5th
Cir. 1975) (alien must present sufficient facts to allow court to infer
that competent counsel would have acted otherwise).
Situations may arise where the Board or the Immigration Judge makes
a factual finding of ineffective assistance of counsel in an
immigration proceeding but the adjudicating official in the
disciplinary proceeding recommends that no disciplinary action be
imposed upon the practitioner. Since the practitioner in question is
not a party to an alien's motion to reopen on the basis of ineffective
assistance of counsel and may not have presented any evidence in his or
her defense with regard to this issue, the adjudicating official in the
disciplinary proceeding, upon further development of the facts, may
determine, notwithstanding the finding of the Immigration Judge or the
Board, that the attorney's conduct does not rise to a level for which
disciplinary sanctions should be imposed. Such a ruling is subject to
review by the Disciplinary Committee, which will then issue a final
decision in the matter.
[[Page 2903]]
Fifth, the proposed rule contains a provision that allows for the
immediate suspension of any practitioner who has been convicted of a
serious crime, or any practitioner who has been disbarred or is
currently under suspension or resignation with an admission of
misconduct by the bar of any state, possession, territory,
commonwealth, or the District of Columbus, or by any Federal court.
Such immediate suspension may be imposed upon the practitioner while
any appeal from the underlying conviction or discipline is pending and
will continue until such time as a final administrative decision is
made by the Disciplinary Committee. If a final administrative decision
includes the imposition of a period of suspension, any time spent by
the practitioner under immediate suspension will be credited toward the
period suspension imposed by the final administrative decision. This
provision will enable EOIR and the Service to take immediate action
against such practitioners and will provide a certain degree of
protection to those individuals most likely to be affected by the
practitioner's misconduct.
For those practitioners who are immediately suspended, the proposed
rule allows for the initiation of a summary disciplinary proceeding.
Such a proceeding will be conducted in a manner similar to the standard
disciplinary proceeding set forth in this rule, except that a certified
copy of a judgment of conviction or judgment or order of discipline
shall serve as a rebuttable presumption of the commission of the crime
or the professional misconduct, and the burden of proof shall be upon
the practitioner to show cause why the proposed disciplinary sanctions
should not be imposed. This summary proceeding will enable EOIR and the
Service to expeditiously bring disciplinary proceedings against
practitioners who have engaged in criminal or unethical conduct while
providing an opportunity for the practitioner to challenge the
disciplinary charges and proposed sanctions.
Finally, the proposed rule contains a provision that addresses the
issue of confidentiality with regard to complaints, preliminary
inquiries, settlement agreements, and disciplinary proceedings. The
provision provides that information concerning complaints or
preliminary inquiries will be confidential unless a waiver is made, but
in certain circumstances a waiver is not required before information
can be disclosed. Resolutions, such as warning letters, admonitions,
and agreements in lieu of discipline reached prior to the issuance of a
Notice of Intent to Discipline will remain confidential. Notices of
Intent to Discipline and action taken subsequent thereto, including
settlement agreements, may be disclosed to the public. Disciplinary
hearings will also be open to the public. This provision will
adequately protect practitioners who may be the subject of a complaint
or preliminary inquiry and also will maintain the integrity and
credibility of the disciplinary process by keeping the sytem open to
the public.
This proposed rule will allow EOIR and the Service to investigate,
present, and complete disciplinary proceedings more effectively and
efficiently while ensuring the due process rights of the practitioner.
This proposed rule will allow frivolous claims to be resolved and
meritorious cases to be completed quickly and without unnecessary delay
because the need for expeditious resolution of these cases is critical
to and in the best interests of all parties involved. EOIR and the
Service recognize that the primary purposes of disciplinary
proceedings, and any sanctions that are imposed as a result of such
proceedings, include the protection of the public, the preservation of
the integrity of the immigration courts and the legal profession, and
the maintenance of high professional standards by practitioners.
The proposed rule regarding the authority of EOIR to investigate
complaints and to conduct disciplinary proceedings has been placed in 8
CFR part 3 for several reasons: (1) To highlight the independence of
EOIR from the Service; (2) to provide EOIR with the ability to police
its own tribunals and the persons who come before them; and (3) to
provide a more efficient and effective disciplinary system. The
proposed rule and the amendments to 8 CFR part 292 clarify the
authority of the Service to investigate complaints regarding attorneys
and representatives who practice before the Service and outline the
procedures by which disciplinary proceedings may be initiated before
EOIR against practitioners who appear before the Service. Once the
Service decides to issue a Notice of Intent to Discipline, the
complaint will be heard and decided under the same procedures used for
disciplinary actions initiated by the Office of the General Counsel of
EOIR. Moreover, the rule also provides for notice of the initiation of
disciplinary actions and coordination of disciplinary sanctions
regarding the Service as well as the Board and the Immigration Courts.
Regulatory Flexibility Act
In accordance with 5 U.S.C. 605(b), the Attorney General certifies
that this rule affects only those practitioners who practice
immigration law before EOIR and the Service. Approximately 5000
immigration attorneys and 400 accredited representatives will be
subject to this rule. This rule will not have a significant adverse
economic impact on a substantial number of small entities because the
rule is similar in substance to the existing regulatory process and
will only affect those practitioners who have committed serious crimes
or who have lost their license to practice law or otherwise engaged in
professional misconduct. Therefore, this rule does not have a
significant economic impact on a substantial number of small entities.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United states-based companies to compete with foreign-
based companies in domestic and export markets.
Executive Order 12866
The Attorney General has determined that this rule is not a
significant regulatory action under Executive Order No. 12866, and
accordingly this rule has not been reviewed by the Office of Management
and Budget.
Executive Order 12612
This rule has no federalism implications warranting the preparation
of a Federalism Assessment in accordance with Executive Order No.
12612.
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Executive Order 12988
The rule meets the applicable standards provided in sections 3 (a)
and 3 (b) (2) of Executive Order No. 12988.
List of Subjects
8 CFR Part 3
Administrative practice and procedure, Immigration, Legal services,
Organizations and functions (Government agencies), Reporting and
recordkeeping requirements.
8 CFR Part 292
Administrative practice and procedure, Immigration, Reporting and
recordkeeping requirements.
For the reasons set forth in the preamble, chapter I of title 8 of
the Code of Federal Regulations is proposed to be amended as follows:
PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
1. The authority citation for part 3 continues to read as follows:
Authority: 5 U.S.C. 301; 8 U.S.C. 1103; 1252 note, 1252b, 1324b,
1362; 28 U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan No. 2 of 1950, 3
CFR, 1949-1953 Comp., p. 1002.
2-3. Section 3.1 is amended by revising the reference to
``Sec. 292.3(a)(15) of this chapter'' in the first sentence of
paragraph (d)(1-a)(ii) to read ``Sec. 3.52(j)'', and by revising
paragraph (d)(3) to read as follows:
Sec. 3.1 General authorities.
* * * * *
(d) * * *
(3) Rules of practice. The board shall have authority, with the
approval of the Director, EOIR, to prescribe rules governing
proceedings before it. It shall also determine whether any organization
desiring representation is of a kind described in Sec. 1.1(j) of this
chapter.
* * * * *
4. Section 3.12 is amended by revising the reference to
``Sec. 292.3 of this chapter'' in the second sentence to read ``part 3
of this chapter''.
5. Subpart D is added to part 3 after Subpart C, to read as
follows:
Subpart D--Professional Conduct for Practitioners--Rules and Procedures
Sec.
3.51 General provisions.
3.52 Grounds.
3.53 Filing of an preliminary inquiry into complaints; resolutions;
referral of complaints.
3.54 Notice of Intent to Discipline.
3.55 Hearing and disposition.
3.56 Reinstatement after expulsion or suspension.
3.57 Confidentiality.
3.58 Discipline of government attorneys.
Subpart D--Professional Conduct for Practitioners--Rules and
Procedures
Authority: 8 U.S.C. 1103, 1252b, 1362.
Sec. 3.51 General provisions.
(a) Disciplinary Committee. The Disciplinary Committee is a three-
member panel appointed by the Deputy Attorney General, with at least
one Committee member from the Executive Office for Immigration Review.
The Deputy Attorney General will designate one Committee member to
serve as Chairperson. A designee appointed by the Deputy Attorney
General may serve as an alternate Disciplinary Committee member when,
in the absence or unavailability of a Disciplinary Committee member or
for other good cause, his or her participation is deemed necessary.
Once designated, his or her participation in a case shall continue to
its normal conclusion.
(b) Authority to sanction. The Disciplinary Committee may impose
disciplinary sanctions against any practitioner if it finds it to be in
the public interest to do so. It will be in the public interest to
impose disciplinary sanctions against a practitioner who is authorized
to practice before the Board of Immigration Appeals (the Board) and the
Immigration Courts when such person has engaged in criminal, unethical,
or unprofessional conduct, or in frivolous behavior, as set forth in
Sec. 3.52. In accordance with the disciplinary proceedings set forth in
this subpart and outlined below, the Disciplinary Committee may impose
any of the following disciplinary sanctions:
(1) Expulsion, which is permanent, from practice before the Board
and the Immigration Courts or the Immigration and Naturalization
Service (the Service), or before all three authorities;
(2) Suspension, including immediate suspension, from practice
before the Board and the Immigration Courts or the Immigration and
Naturalization Service (the Service), or before all three authorities;
(3) Public or private censure; or
(4) Such other disciplinary sanctions as the Disciplinary Committee
deems appropriate.
(c) Persons subject to sanctions. Persons subject to sanctions
include any practitioner. A practitioner is any attorney as defined in
Sec. 1.1(f) of this chapter who does not represent the federal
government, or any representative as defined in Sec. 1.1(j) of this
chapter. Attorneys employed by the Department of Justice shall be
subject to discipline pursuant to Sec. 3.58.
(d) Immediate suspension and summary disciplinary proceedings--(1)
Immediate suspension. The Office of the General Counsel of EOIR may ask
the Disciplinary Committee to immediately suspend from practice before
the Board and the Immigration Courts any practitioner who has been
convicted of a serious crime, as defined in Sec. 3.52(h), or who has
been disbarred or is currently under suspension or resignation with an
admission of misconduct by the bar of any state, possession, territory,
commonwealth, or the District of Columbia, or by any Federal court.
Such immediate suspension may be imposed upon the practitioner while
any appeal from the underlying conviction or discipline is pending and
shall continue until such time as a final administrative decision is
made by the Disciplinary committee. If a final administrative decision
includes the imposition of a period of suspension, any time spent by
the practitioner under immediate suspension pursuant to this paragraph
will be credited toward the period of suspension imposed by the final
administrative decision.
(2) Summary disciplinary proceedings. The Office of the General
Counsel of EOIR may initiate summary disciplinary proceedings against
any practitioner described in paragraph (d)(1) of this section. Summary
proceedings may be initiated by the issuance of a Notice of Intent to
Discipline if accompanied by a certified copy of a judgment of
conviction or a judgment or order of discipline. Summary proceedings
shall be conducted in accordance with the provisions set forth in
Secs. 3.54 and 3.55, except that a certified copy of a judgment of
conviction or judgment or order of discipline shall serve as a
rebuttable presumption of the commission of the crime or the
professional misconduct. The imposition of disciplinary sanctions shall
follow, unless the practitioner can rebut the presumption by
demonstrating that:
(i) The underlying criminal or disciplinary proceeding was so
lacking in notice or opportunity to be heard as to constitute a
deprivation of due process;
(ii) There was such an infirmity of proof establishing the
practitioner's guilt or professional misconduct as to give rise to the
clear conviction that the adjudicating official could not, consistent
with his or her duty, accept as final the conclusion on that subject;
or
[[Page 2905]]
(iii) The imposition of discipline by the adjudicating official
would result in grave injustice.
(3) Ineligibility to rebut the presumption of professional
misconduct. An attorney shall not be eligible to rebut the presumption
of the commission of professional misconduct unless he or she is a
member in good standing of the bar of the highest court of any state,
possession, territory, commonwealth, or the District of Columbia.
(e) Duty of practitioner to notify EOIR of conviction or
discipline. Any practitioner who has been convicted of a serious crime,
as defined in Sec. 3.52(h), or who has been disciplined for
professional misconduct by the bar of any state, possession, territory,
commonwealth, or the District of Columbia, or by a Federal court must
notify the Office of the General Counsel or EOIR of any such conviction
or disciplinary action within 30 days of the issuance of the initial
order, even if an appeal of the conviction or discipline is pending.
Failure to do so may result in immediate suspension as set forth in
paragraph (d)(1) of this section. This duty to notify applies only to
convictions for serious crimes or rulings of professional misconduct
entered after the effective date of this regulation.
Sec. 3.52 Grounds.
It is deemed to be in the public interest for the Disciplinary
Committee to impose disciplinary sanctions against any practitioner who
falls within one or more of the categories enumerated in this section,
but these categories do not constitute the exclusive grounds for which
disciplinary sanctions may be imposed in the public interest. A
practitioner who falls within one of the following categories may be
subject to disciplinary sanctions in the public interest if he or she:
(a) Charges or receives, either directly or indirectly:
(1) In the case of an attorney, any fee or compensation for
specific services rendered for any person that shall be deemed to be
grossly excessive. The factors to be considered in determining whether
a fee or compensation is grossly excessive include the following: the
time and labor required, the novelty and difficulty of the questions
involved, and the skill requisite to perform the legal service
properly; the likelihood, if apparent to the client, that the
acceptance of the particular employment will preclude other employment
by the attorney; the fee customarily charged in the locality for
similar legal services; the amount involved and the results obtained;
the time limitations imposed by the client or by the circumstances; the
nature and length of the professional relationship with the client; and
the experience, reputation, and ability of the attorney or attorneys
performing the services,
(2) In the case of an accredited representative as defined in
Sec. 292.1(a)(4) of this chapter, any fee or compensation for specific
services rendered for any person, except that an accredited
representative may be regularly compensated by the organization of
which he or she is an accredited representative, or
(3) In the case of a law student or law graduate as defined in
Sec. 292.1(a)(2) of this chapter, any fee or compensation for specific
services rendered for any person, except that a law student or law
graduate may be regularly compensated by the organization or firm with
which he or she is associated as long as he or she is appearing without
direct or indirect remuneration from the client he or she represents;
(b) Bribes, attempts to bribe, coerces, or attempts to coerce, by
any means whatsoever, any person (including a party to a case or an
officer or employee of the Department of Justice) to commit any act or
to refrain from performing any act in connection with any case;
(c) Knowingly makes a false statement of material fact or law to,
or willfully misleads, misinforms, threatens, or deceives any person
(including a party to a case or an officer or employee of the
Department of Justice) concerning any material and relevant matter
relating to a case, including knowingly offering evidence that the
practitioner knows to be false. If a practitioner has offered material
evidence and comes to know of its falsity, the practitioner shall take
appropriate remedial measures;
(d) Solicits professional employment, through in-person or live
telephone contact or through the use of runners, from a prospective
client with whom the practitioner has no family or prior professional
relationship when a significant motive for the practitioner's doing so
is the practitioner's pecuniary gain. If the practitioner has no family
or prior professional relationship with the prospective client known to
be in need of legal services in a particular matter, the practitioner
must include the words ``Advertising Material'' on the outside of the
envelope of any written communication and at the beginning and ending
of any recorded communication. Such advertising material or similar
solicitation documents may not be distributed by any person in or
around the premises of any building in which an Immigration Court is
located;
(e) Is currently subject to a final order of disbarment,
suspension, or resignation with an admission of misconduct
(1) In the jurisdiction of any state, possession, territory,
commonwealth, or the District of Columbia, or in any Federal court in
which the practitioner is admitted to practice, or
(2) Before any executive department, board, commission, or other
governmental unit;
(f) Makes a false or misleading communication about his or her
qualifications or services. A communication is false or misleading if
it:
(1) Contains a material misrepresentation of fact or law, or omits
a fact necessary to make the statement considered as a whole not
materially misleading, or,
(2) Contains an assertion about the practitioner or his or her
qualifications or services that cannot be substantiated. A practitioner
shall not state or imply that he or she has been recognized or
certified as a specialist in immigration and/or nationality law unless
such certification is granted by the appropriate state regulatory
authority or by an organization that has been approved by the
appropriate state regulatory authority to grant such certification;
(g) Engages in contumelious or otherwise obnoxious conduct with
regard to a case in which he or she acts in a representative capacity,
which, in the opinion of the Disciplinary Committee, would constitute
cause for suspension or disbarment if the case were pending before a
court, or which, in such a judicial proceeding, would constitute a
contempt of court;
(h) Has been convicted in any court of the United States, or of any
state, possession, territory, commonwealth, or the District of
Columbia, of a serious crime. A serious crime includes any felony and
also includes any lesser crime, a necessary element of which, as
determined by the statutory or common law definition of such crime in
the jurisdiction where the judgment was entered, involved interference
with the administration of justice, false swearing, misrepresentation,
fraud, willful failure to file income tax returns, deceit, dishonesty,
bribery, extortion, misappropriation, theft, or an attempt or a
conspiracy or solicitation of another to commit a serious crime. A plea
or verdict of guilty or a conviction after a plea of nolo contender is
deemed to be a conviction within the meaning of this section;
[[Page 2906]]
(i) Falsely certifies a copy of a document as being a true and
complete copy of an original;
(j) Engages in frivolous behavior in a proceeding before the
Immigration Court, the Board, or any other administrative appellate
body under title II of the Immigration and Nationality Act.
(1) A practioner engages in frivolous behavior when he or she knows
or reasonably should have known that his or her actions lack an
arguable basis in law or in fact, or are taken for an improper purpose,
such as to harass or to cause unnecessary delay. Actions that, if taken
improperly, may be subject to disciplinary sanctions include, but are
not limited to, the making of an argument on any factual or legal
question, the submission of an application for discretionary relief,
the filing of a motion, or the filing of an appeal. The signature of a
practioner on any filing, application, motion, appeal, brief, or other
document constitutes certification by the signer that the signer has
read the filing, application, motion, appeal, brief, or other document
and that, to the best of the signer's knowledge, information, and
belief, formed after inquiry reasonable under the circumstances, the
document is well-grounded in fact and is warranted by existing law or
by a good faith argument for the extension, modification, or reversal
of existing law or the establishment of new law, and is not interposed
for any improper purpose.
(2) The imposition of disciplinary sanctions for frivolous behavior
under this section in no way limits the authority of the Board to
dismiss an appeal summarily pursuant to Sec. 3.1(d)(1-a);
(k) Engages in conduct that constitutes ineffective assistance of
counsel, as previously determined in a finding by the Board or the
Immigration Court in an immigration proceeding, within five years
preceding the filing of the complaint; or
(l) Repeatedly fails to appear for scheduled hearings in a timely
manner.
Sec. 3.53 Filing of and preliminary inquiry into complaints;
resolutions; referral of complaints.
(a) Filing of complaints--(1) Practitioners authorized to practice
before the Board and the Immigration Courts. Complaints of criminal,
unethical, or unprofessional conduct, or frivolous behavior by a
practioner who is authorized to practice before the Board and the
Immigration Courts shall be filed with the Office of the General
Counsel of EOIR. Complaints must be submitted in writing and must state
in detail the information that supports the basis for the complaint,
including, but not limited to, the names and addresses of the
complainant and the practitioner, the date(s) of the conduct or
behavior, the nature of the conduct or behavior, the individuals
involved, the harm or damages sustained by the complainant, and any
other relevant information. Any individual may file a complaint with
the Office of the General Counsel of EOIR. The Office of the General
Counsel of EOIR shall notify the Office of the General Counsel of the
Service of any complaint filed that pertains, in whole or in part, to a
matter involving the Service.
(2) Practitioners authorized to practice before the Service.
Complaints of criminal, unethical, or unprofessional conduct, or of
frivolous behavior by a practitioner who is authorized to practice
before the Service shall be filed with the Office of the General
Counsel of the Service pursuant to the procedures set forth in
Sec. 292.3(c) of this chapter.
(b) Preliminary inquiry. Upon receipt of a complaint or on its own
initiative, the Office of the General Counsel of EOIR will initiate a
preliminary inquiry. If a complaint concerning a practitioner is filed
by a client or former client, the complainant thereby waives the
attorney-client privilege and any other applicable privilege, as
between the complainant and the practitioner, to the extent necessary
for the preliminary inquiry and any subsequent prosecution of the
allegations. If the Office of the General Counsel of EOIR determines
that a complaint is without merit, no further action will be taken. The
Office of the General Counsel of EOIR may, in its discretion, close a
preliminary inquiry if the complainant fails to comply with its
reasonable requests for assistance, information, or documentation. The
complainant and the practitioner shall be notified of such
determinations in writing.
(c) Resolutions reached prior to the issuance of a Notice of Intent
to Discipline. The Office of the General Counsel of EOIR, in its
discretion, may issue warning letters and admonitions, and may enter
into agreements in lieu of discipline, prior to the issuance of a
Notice of Intent to Discipline.
(d) Referral of complaints of criminal conduct. If the Office of
the General Counsel of EOIR receives credible information or
allegations that a practitioner has engaged in criminal conduct in
connection with an immigration matter, the Office of the General
Counsel of EOIR shall refer the matter to the Inspector General and, if
appropriate, to the Federal Bureau of Investigation. In such cases, in
making the decision to pursue disciplinary sanctions, the Office of the
General Counsel of EOIR shall coordinate in advance with the
appropriate investigative and prosecutive authorities of the Department
to ensure that neither the disciplinary process nor criminal
prosecutions are jeopardized.
Sec. 3.54 Notice of Intent to Discipline.
(a) Issuance of Notice to practitioner. If, upon completion of the
preliminary inquiry, the Office of the General Counsel of EOIR
determines, by a preponderance of the evidence, that a practitioner has
engaged in professional misconduct as set forth in Sec. 3.52, it will
issue a Notice of Intent to Discipline to the practitioner named in the
complaint. This notice will be served upon the practitioner by personal
service as defined in Sec. 103.5a of this chapter. Such notice shall
contain a statement of the charge(s), a copy of the preliminary inquiry
report, the proposed disciplinary sanctions to be imposed, the
procedure for filing an answer or requesting a hearing, and the mailing
address and telephone number for the Disciplinary Committee.
(b) Copy of Notice to the Service; reciprocity of disciplinary
sanctions. A copy of the Notice of Intent to Discipline shall be
forwarded to the Office of the General Counsel of the Service. The
Office of the General Counsel of the Service may submit a written
request to the adjudicating official asking that he or she recommend
that any discipline imposed against a practitioner's right to practice
before the Board or the Immigration Courts also apply to the
practitioner's right to practice before the Service. Proof of service
on the practitioner of any request to broaden the scope of the proposed
discipline must be filed with the adjudicating official.
(c) Answer. The practitioner shall file an answer to the Notice of
Intent to Discipline with the Office of the General Counsel of EOIR
within 30 days of the date of service of the Notice of Intent to
Discipline, unless an extension of time is granted for good cause by
the Disciplinary Committee. A request for an extension of time to
answer must be received by the Disciplinary Committee at least three
(3) working days before the time to answer has expired. A copy of such
request shall be served on the Office of the General Counsel of EOIR.
The answer shall be in writing, must respond to each charge in a
substantive and detailed manner, and may include any supporting
documents, including affidavits or statements. The answer
[[Page 2907]]
shall state whether the practitioner requests a hearing on the matter.
(d) Failure to file an answer. Failure to file an answer in a
timely manner shall be deemed an admission to the factual allegations
set forth in the Notice of Intent to Discipline and no further proof
shall be required to establish the truth of such facts. The Office of
the General Counsel of EOIR shall submit proof of personal service of
the Notice of Intent to Discipline. The practitioner shall be precluded
thereafter from requesting a hearing on the matter. The recommended
disciplinary sanctions in the Notice of Intent to Discipline shall then
become final and the Disciplinary Committee shall issue a final order
adopting the recommended disciplinary sanctions against the
practitioner. A practitioner may file a motion to set aside a final
order of disciplinary sanctions, issued pursuant to this paragraph,
with the Disciplinary Committee if:
(1) Such a motion is filed within 15 days of service of the final
order; and
(2) His or her failure to file an answer was due to exceptional
circumstances (such as serious illness of the practitioner or death of
an immediate relative of the practitioner, but not including less
compelling circumstances) beyond the control of the practitioner.
Sec. 3.55 Hearing and disposition.
(a) Hearing--(1) Procedure. (i) The Director of EOIR shall, upon
the filing of an answer, appoint an adjudicating official. An
adjudicating official may be an Immigration Judge, an Assistant Chief
Immigration Judge, a Board Member, or an Administrative Law Judge. Upon
the practitioner's request for a hearing, the Director of EOIR shall
designate the time and place of the initial hearing. Pre-hearing
conferences may be scheduled at the discretion of the adjudicating
official in order to narrow issues, to obtain stipulations between the
parties, to exchange information voluntarily, and otherwise to simplify
and organize the proceeding. Settlement agreements reached after the
issuance of a Notice of Intent to Discipline are subject to final
approval by the adjudicating official and the Disciplinary Committee.
(ii) The practitioner may be represented at the hearing by counsel
at no expense to the government. At the hearing, the practitioner shall
have a reasonable opportunity to examine and object to evidence
presented by the government, to present evidence on his or her own
behalf, and to cross-examine witnesses presented by the government. The
adjudicating official shall consider: the complaint, the preliminary
inquiry report, the Notice of Intent to Discipline, the answer and any
supporting documents; and any other evidence presented at the hearing
(or, if the practitioner files an answer but does not request a
hearing, any pleading, brief, or other materials submitted by counsel
for the government). Counsel for the government shall bear the burden
of proving the grounds for disciplinary sanctions enumerated in the
Notice of Intent to Discipline by clear, unequivocal, and convincing
evidence.
(iii) The record of the hearing, regardless of whether the hearing
is held before an Immigration Judge, an Assistant Chief Immigration
Judge, a Board Member, or an Administrative Law Judge, shall conform to
the requirements of 8 CFR 240.9. Disciplinary hearings shall be
conducted in the same manner as immigration court proceedings as is
appropriate, and shall be open to the public, except that:
(A) Depending upon physical facilities, the adjudicating official
may place reasonable limitations upon the number in attendance at any
one time,
(B) For the purposes of protecting witnesses, parties, or the
public interest, the adjudicating official may limit attendance or hold
a closed hearing.
(2) Fairlure to appear at hearing. Failure to appear at the hearing
shall be deemed an admission to the factual allegations set forth in
the Notice of Intent to Discipline, even when the practitioner filed an
answer, and no further proof shall be required to establish the truth
of such facts. The Office of the General Counsel of EOIR or the Office
of the General Counsel of the Service shall submit proof of personal
service of the Notice of Intent to Discipline. The practitioner shall
be precluded thereafter from participating further in the proceedings.
The recommended disciplinary sanctions in the Notice of Intent to
Discipline shall then become final and the Disciplinary Committee shall
issue a final order adopting the recommended disciplinary sanctions
against the practitioner. A practitioner may file a motion to set aside
a final order of disciplinary sanctions issued pursuant to this
paragraph if:
(i) Such a motion is filed within 15 days of service of the final
order; and
(ii) His or her failure to appear at the hearing was due to
exceptional circumstances (such as serious illness of the practitioner
or death of an immediate relative of the practitioner, but not
including less compelling circumstances) beyond the control of the
practitioner.
(b) Recommendation. The adjudicating official shall consider the
entire record, including any testimony and evidence presented at the
hearing, and shall report his or her findings and recommendations to
the Disciplinary Committee. If the adjudicating official finds that the
grounds for disciplinary sanctions enumerated in the Notice of Intent
to Discipline have been established by clear, unequivocal, and
convincing evidence, he or she shall recommend that the disciplinary
sanctions set forth in the Notice of Intent to Discipline be adopted,
modified, or otherwise amended. If the adjudicating official recommends
that the practitioner be suspended, the time period for such suspension
shall be specified. Court costs also may be assessed against the
practitioner, including the costs of a transcript, an interpreter, or
any other costs necessary to conduct the hearing. If the adjudicating
official finds that the grounds for disciplinary sanctions enumerated
in the Notice of Intent to Discipline have not been established by
clear, unequivocal, and convincing evidence, he or she shall recommend
to the Disciplinary Committee that the case be dismissed.
(c) Decision. Upon a de novo review of the findings and
recommendations of the adjudicating official, the Disciplinary
Committee may adopt, modify, or otherwise amend the recommended
disciplinary sanctions. The decision of the Disciplinary Committee is a
final administrative order and shall be served upon the practitioner by
personal service as defined in Sec. 103.5a of this chapter. A copy of
the final administrative decision of the Disciplinary Committee shall
be served upon the Office of the General Counsel of EOIR and the Office
of the General Counsel of the Service. If disciplinary sanctions are
imposed against a practitioner (other than a private censure), the
Disciplinary Committee may require that a notice of such sanctions be
posted at the Immigration Courts, the Board, or the Service for the
period of time during which the sanctions are in effect, or for any
other period of time as determined by the Disciplinary Committee.
(d) Referral. In addition to or in lieu of initiating disciplinary
proceedings against a practitioner, the Office of the General Counsel
of EOIR may notify the appropriate state and/or local professional
licensing or regulatory authority of a complaint filed against a
practitioner. Any final administrative decision imposing sanctions
against a practitioner (other than a private censure) shall be reported
to the
[[Page 2908]]
appropriate state and/or local professional licensing or regulatory
authority.
Sec. 3.56 Reinstatement after expulsion or suspension.
(a) Expiration of suspension. A practitioner who has been suspended
will be reinstated automatically to practice before the Board and the
Immigration Courts or the Service, or before all three authorities,
once the period of suspension has expired, provided that he or she
meets the definition of attorney or representative as set forth in
Sec. 1.1 (f) and (j), respectively, of this chapter. If a practitioner
cannot meet the definition of attorney or representative, the
Disciplinary Committee will decline to reinstate the practitioner.
(b) Petition for reinstatement A practitioner who has been expelled
or who has been suspended for one year or more may file a petition for
reinstatement directly with the Disciplinary Committee after one-half
of the suspension period has expired or one year has passed, whichever
is greater, provided that he or she meets the definition of attorney or
representative as set forth in Sec. 1.1 (f) and (j), respectively, of
the chapter. A copy of such petition shall be served on the Office of
the General Counsel of EOIR. In matters in which the practitioner was
also ordered expelled or suspended from practice before the Service, a
copy of such petition shall be served on the Office of the General
Counsel of the Service. The practitioner shall have the burden of
demonstrating by clear, unequivocal, and convincing evidence that he or
she possesses the moral and professional qualifications required to
appear before the Board and the Immigration Courts or the Service, or
before all three authorities, and that his or her reinstatement will
not be detrimental to the administration of justice. The Office of the
General Counsel of EOIR, and in matters in which the practitioner was
ordered expelled or suspended from practice before the Service, the
Office of the General Counsel of the Service, may respond to the
petition in the form of a written response, which may include
documentation of any complaints filed against the expelled or suspended
practitioner subsequent to his or her expulsion or suspension. If a
practitioner cannot meet the definition of attorney or representative
as set forth in Sec. 1.1 (f) and (j), respectively, of this chapter,
the Disciplinary Committee will deny the petition for reinstatement. If
reinstatement is found to be inappropriate or unwarranted, the petition
shall be denied and any subsequent petitions for reinstatement may not
be filed before the end of one year from the date of the previous
denial. If reinstatement is found to be appropriate and the
practitioner is found to be qualified to practice before the Board and
the Immigration Courts or the Service, or before all three authorities,
the practitioner will be reinstated.
Sec. 3.57 Confidentiality.
(a) Complaints and preliminary inquiries. Except as otherwise
provided by law or regulation, information concerning complaints or
preliminary inquiries is confidential. A practitioner whose conduct is
the subject of a complaint or preliminary inquiry, however, may waive
confidentiality, except that the Office of the General Counsel of EOIR
may decline to permit a waiver of confidentiality if it is determined
that an ongoing preliminary inquiry may be substantially, prejudiced by
a public disclosure before the filing of a Notice of Intent to
Discipline.
(1) Disclosure of information for the purpose of protecting the
public. The Office of the General Counsel of EOIR, after private notice
to the practitioner, may disclose information concerning a complaint or
preliminary inquiry for the protection of the public when the necessity
for disclosing information outweighs the necessity for preserving
confidentiality in circumstances including, but not limited to, the
following:
(i) A practitioner has caused, or is likely to cause, harm to
client(s), the public, or the administration of justice, such that the
public or specific individuals should be advised of the nature of the
allegations. If disclosure of information is made pursuant to this
paragraph, the Office of the General Counsel of EOIR may define the
scope of information disseminated and may limit the disclosure of
information to specified individuals or entities;
(ii) A practitioner has committed criminal acts or is under
investigation by law enforcement authorities;
(iii) A practitioner is under investigation by a regulatory or
licensing agency, or has committed acts or made omissions that may
reasonably result in investigation by a regulatory or licensing agency;
(iv) A practitioner is the subject of multiple complaints and the
Office of the General Counsel of EOIR has determined not to pursue all
of the complaints. The Office of the General Counsel of EOIR may inform
complainants whose allegations have not been pursued of the status of
the other preliminary inquiries or the manner is which the other
complaint(s) against the practitioner have been resolved.
(2) Disclosure of information for the purpose of conducting a
preliminary inquiry. The Office of the General Counsel of EOIR, in the
exercise of discretion, may disclose documents and information
concerning complaints and preliminary inquiries to the following
individuals or entities:
(i) To witnesses or potential witnesses in conjunction with a
complaint or preliminary inquiry;
(ii) To other governmental agencies responsible for the enforcement
of civil or criminal laws;
(iii) To agencies and other jurisdictions responsible for
professional licensing;
(iv) To the complainant or a lawful designee;
(v) To the practitioner who is the subject of the complaint or
preliminary inquiry or the practitioner's counsel of record.
(b) Resolutions reached prior to the issuance of a Notice of Intent
to Discipline. Resolutions, such as warning letters, admonitions, and
agreements in lieu of discipline, reached prior to the issuance of a
Notice of Intent to Discipline will remain confidential. However, such
resolutions may become part of the public record if the practitioner
becomes the subject of a subsequent Notice of Intent to Discipline.
(c) Notices of Intent to Discipline and action subsequent thereto.
Notices of Intent to Discipline and any action that takes place
subsequent to their issuance, except for the imposition of private
censures, may be disclosed to the public, except that private censures
may become part of the public record if introduced as evidence of a
prior record of discipline in any subsequent proceeding. Settlement
agreements reached after the issuance of a Notice of Intent to
Discipline may be disclosed to the public upon final approval by the
adjudicating official and the Disciplinary Committee. Disciplinary
hearings are open to the public, except as noted in Sec. 3.55.
Sec. 3.58 Discipline of government attorneys.
Complaints regarding the conduct and behavior of government
attorneys shall be directed to the Office of Professional
Responsibility of the Department of Justice.
PART 292--REPRESENTATION AND APPEARANCES
6. The authority citation for part 292 continues to read as
follows:
[[Page 2909]]
Authority: 8 U.S.C. 1103, 1252b, 1362.
7. Section 292.3 is revised to read as follows:
Sec. 292.3 Professional Conduct for Practitioners--Rules and
Procedures.
(a) General provisions--(1) Disciplinary Committee. The
Disciplinary Committee established under Sec. 3.51 of this chapter may
impose disciplinary sanctions against any practitioner if it finds it
to be in the public interest to do so.
(2) Authority to sanction. It will be in the public interest to
impose disciplinary sanctions against a practitioner who is authorized
to practice before the Service when such person has engaged in
criminal, unethical, or unprofessional conduct, or in frivolous
behavior, as set forth in Sec. 3.52 of this chapter. In accordance with
the disciplinary proceedings set forth in part 3 of this chapter, the
Disciplinary Committee may impose any of the following disciplinary
sanctions:
(i) Expulsion, which is permanent, from practice before the Board
of Immigration Appeals and the Immigration Courts or the Service, or
before all three authorities;
(ii) Suspension, including immediate suspension, from practice
before the Board and the Immigration Courts or the Service, or before
all three authorities;
(iii) Public or private censure; or
(iv) Such other disciplinary sanction as the Disciplinary Committee
deems appropriate.
(3) Persons subject to sanctions. Persons subject to sanctions
include any practitioner. A practitioner is any attorney as defined in
Sec. 1.1(f) of this chapter who does not represent the federal
government, or any representative as defined in Sec. 1.1(j) of this
chapter. Attorneys employed by the Department of Justice shall be
subject to discipline pursuant to paragraph (h) of this section.
(4) Immediate suspension and summary disciplinary proceedings--
(i)Immediate suspension. The Office of the General Counsel of the
Service may ask the Disciplinary Committee to immediately suspend from
practice before the Service any practitioner who has been convicted of
a serious crime, as defined in Sec. 3.52(h) of this chapter, or who has
been disbarred or is currently under suspension or resignation with an
admission of misconduct by the bar of any state, possession, territory,
commonwealth, or the District of Columbia, or by any Federal Court.
Such immediate suspension may be imposed upon the practitioner while
any appeal from the underlying conviction or discipline is pending and
shall continue until such time as a final administrative decision is
made by the Disciplinary Committee. If a final administrative decision
includes the imposition of a period of suspension, any time spent by
the practitioner under immediate suspension pursuant to this paragraph
will be credited toward the period of suspension imposed by the final
administrative decision.
(ii) Summary disciplinary proceedings. The Office of the General
Counsel of the Service may initiate summary disciplinary proceedings
against any practitioner described in paragraph (a)(4)(i) of this
section. Summary proceedings may be initiated by the issuance of a
Notice of Intent to Discipline if accompanied by a certified copy of a
judgment of conviction or a judgment or order of discipline. Summary
proceedings shall be conducted in accordance with the provisions set
forth in Secs. 3.54 and 3.55 of this chapter, except that a certified
copy of a judgment of conviction or judgment or order of discipline
shall serve as a rebuttable presumption of the commission of the crime
or the professional misconduct. The imposition of disciplinary sanction
shall follow, unless the practitioner can rebut the presumption by
demonstrating that:
(A) The underlying criminal or disciplinary proceeding was so
lacking in notice or opportunity to be heard as to constitute a
deprivation of due process;
(B) There was such an infirmity of proof establishing the
practitioner's guilt or professional misconduct as to give rise to the
clear conviction that the adjudicating official could not, consistent
with his or her duty, accept as final the conclusion on that subject;
or
(C) The imposition of discipline by the adjudicating official would
result in grave injustice.
(iii) Ineligibility to rebut the presumption of professional
misconduct. An attorney shall not be eligible to rebut the presumption
of the commission of professional misconduct unless he or she is a
member in good standing of the bar of the highest court of any state,
possession, territory, commonwealth, or the District of Columbia.
(5) Duty of practitioner to notify the Service of conviction or
discipline. Any practitioner who has been convicted of a serious crime,
as defined in Sec. 3.52(h) of this chapter, or who has been disciplined
for professional misconduct by the bar of any state, possession,
territory, commonwealth, or the District of Columbia, or by a Federal
court must notify the Office of the General Counsel of the Service of
any such conviction or disciplinary action within 30 days of the
issuance of the initial order, even if an appeal of the conviction or
discipline is pending. Failure to do so may result in immediate
suspension as set forth in paragraph (a)(3)(i) of this section. This
duty to notify applies only to convictions for serious crimes or
rulings of professional misconduct entered after the effective date of
this regulation.
(b) Grounds of discipline as set forth in Sec. 3.52 of this
chapter. It is deemed to be in the public interest for the Disciplinary
Committee to impose disciplinary sanctions as described in paragraph
(a) of this section against any practitioner who falls within one or
more of the categories enumerated in Sec. 3.52 of this chapter, with
the exception of paragraphs (k) and (l) of that section, but these
categories do not constitute the exclusive grounds for which
disciplinary sanctions may be imposed in the public interest.
(c) Filing of and preliminary inquiry into complaints, resolutions;
referral of complaints--(1) Practitioners authorized to practice before
Service. Complaints of criminal, unethical, or unprofessional conduct,
or of frivolous behavior by a practitioner who is authorized to
practice before the Service shall be filed with the Office of the
General Counsel of the Service. Complaints must be submitted in writing
and must state in detail the information that supports the basis for
the complaint, including, but not limited to, the names and addresses
of the complainant and the practitioner, the date(s) of the conduct or
behavior, the nature of the conduct or behavior, the individual
involved, the harm or damages sustained by the complainant, and any
other relevant information. Any individual may file a complaint with
the Office of the General Counsel of the Service. The Office of the
General Counsel of the Service shall notify the Office of the General
Counsel of the Executive Office for Immigration Review (EOIR) of any
complaint filed that pertains, in whole or in part, to a matter before
the Board or the Immigration Courts.
(2) Practitioners authorized to practice before the Board and the
Immigration Courts. Complaints of criminal, unethical, or
unprofessional conduct, or of frivolous behavior by a practitioner who
is authorized to practice before the Board and the Immigration Courts
shall be filed with the Office of the General Counsel of EOIR pursuant
to the procedures set forth in Sec. 3.53(a) of this chapter.
[[Page 2910]]
(3) Preliminary inquiry. Upon receipt of a complaint or on its own
initiative, the Office of the General Counsel of the Service will
initiate a preliminary inquiry. If a complaint concerning a
practitioner is filed by a client or former client, the complainant
thereby waives the attorney-client privilege and any other applicable
privilege, as between the complainant and the practitioner, to the
extent necessary for the preliminary inquiry and any subsequent
prosecution of the allegations. If the Office of the General Counsel of
the Service determines that a complaint is without merit, no further
action will be taken. The Office of the General Counsel of the Service
may, in its discretion, close a preliminary inquiry if the complainant
fails to comply with its reasonable requests for assistance,
information, or documentation. The complainant shall be notified of
such determinations in writing.
(4) Resolutions reached prior to the issuance of a Notice of Intent
to Discipline. The Office of the General Counsel of the Service, in its
discretion, may issue warning letters and admonitions, and may enter
into agreements in lieu of discipline, prior to the issuance of a
Notice of Intent to Discipline.
(5) Referral of complaints of criminal conduct. If the Office of
the General Counsel of the Service receives credible information or
allegations that a practitioner has engaged in criminal conduct in
connection with an immigration matter, the Office of the General
Counsel of the Service shall refer the matter to the Inspector General
and, if appropriate, to the Federal Bureau of Investigation. In such
cases, in making the decision to pursue disciplinary sanctions, the
Office of the General Counsel of the Service shall coordinate in
advance with the appropriate investigative and prosecutive authorities
of the Department to ensure that neither the disciplinary process nor
criminal prosecutions are jeopardized.
(d) Notice of Intent to Discipline--(1) Issuance of Notice to
practitioner. If, upon completion of the preliminary inquiry, the
Office of the General Counsel of the Service determines, by a
preponderance of the evidence, that a practitioner has engaged in
professional misconduct as set forth in Sec. 3.52 of this chapter, it
will issue a Notice of Intent to Discipline to the practitioner named
in the complaint. This notice will be served upon the practitioner by
personal service as defined in Sec. 103.5a of this chapter. Such notice
shall contain a statement of the charge(s), a copy of the preliminary
inquiry report, the proposed disciplinary sanctions to be imposed, the
procedure for filing an answer or requesting a hearing, and the mailing
address and telephone number for the Disciplinary Committee. The Office
of the General Counsel of the Service shall forward a copy of the
Notice of Intent to Discipline to the Disciplinary Committee.
(2) Copy of Notice to EOIR; reciprocity of disciplinary sanctions.
A copy of the Notice of Intent to Discipline shall be forwarded to the
Office of the General Counsel of EOIR. The Office of the General
Counsel of EOIR may submit a written request to the adjudicating
official asking that he or she recommend that any discipline imposed
against a practitioner's right to practice before the Service also
apply to the practitioner's right to practice before the Board and the
Immigration Courts. Proof of service on the practitioner of any request
to broaden the scope of the proposed discipline must be filed with the
adjudicating official.
(3) Answer. The practitioner shall file an answer to the Notice of
Intent to Discipline with the Office of the General Counsel of the
Service within 30 days of the date of service, unless an extension of
time is granted for good cause by the Disciplinary Committee. A request
for an extension of time to answer must be received by the Disciplinary
Committee at EOIR Headquarters at least three (3) working days before
the time to answer has expired. A copy of such request shall be served
on the Office of the General Counsel of the Service. The answer shall
be in writing, must respond to each charge in a substantive and
detailed manner, and may include any supporting documents, including
affidavits or statements. The answer shall state whether the
practitioner requests a hearing on the matter. The Office of the
General Counsel of the Service shall forward a copy of the
practitioner's answer to the Disciplinary Committee or, if no answer
was filed, notification of such shall be filed with the Disciplinary
Committee.
(4) Failure to file an answer. Failure to file an answer in a
timely manner shall be deemed an admission to the factual allegations
set forth in the Notice of Intent to Discipline and no further proof
shall be required to establish the truth of such facts. The Office of
the General Counsel of the Service shall submit proof of personal
service of the Notice of Intent to Discipline. The practitioner shall
be precluded thereafter from requesting a hearing on the matter. The
recommended disciplinary sanctions in the Notice of Intent to
Discipline shall then become final and the Disciplinary Committee shall
issue a final order adopting the recommended disciplinary sanctions
against the practitioner. A practitioner may file a motion to set aside
a final order of disciplinary sanctions, issued pursuant to this
paragraph, with the Disciplinary Committee if:
(i) Such a motion is filed within 15 days of service of the final
order, and
(ii) His or her failure to file an answer was due to exceptional
circumstances (such as serious illness of the practitioner or death of
an immediate relative of the practitioner, but not including less
compelling circumstances) beyond the control of the practitioner.
(e) Hearing and disposition. Upon the filing of an answer, the
matter shall be heard and decided according to the procedures set forth
in Secs. 3.55 and 3.56 of this chapter. The Office of the General
Counsel of the Service shall represent the government.
(f) Referral. In addition to or in lieu of initiating disciplinary
proceedings against a practitioner, the Office of the General Counsel
of the Service may notify the appropriate state and/or local
professional licensing or regulatory authority of a complaint filed
against a practitioner. Any final administrative decision imposing
sanctions against a practitioner (other than a private censure) shall
be reported to the appropriate state and/or local professional
licensing or regulatory authority.
(g) Confidentiality--(1) Complaints and preliminary inquiries.
Except as otherwise provided by law or regulation, information
concerning complaints or preliminary inquiries is confidential. A
practitioner whose conduct is the subject of a complaint or preliminary
inquiry, however, may waive confidentiality, except that the Office of
the General Counsel of the Service may decline to permit a waiver of
confidentiality if it is determined that an ongoing preliminary inquiry
may be substantially prejudiced by a public disclosure before the
filing of a Notice of Intent to Discipline.
(i) Disclosure of information for the purpose of protecting the
public. The Office of the General Counsel of the Service, after private
notice to the practitioner, may disclose information concerning a
complaint or preliminary inquiry for the protection of the public when
the necessity for disclosing information outweighs the necessity for
preserving confidentiality in circumstances including, but not limited
to, the following:
(A) A practitioner has caused, or is likely to cause, harm to
client(s), the
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public, or the administration of justice, such that the public or
specific individuals should be advised of the nature of the
allegations. If disclosure of information is made pursuant to this
paragraph, the Office of the General Counsel of the Service may define
the scope of information disseminated and may limit the disclosure of
information to specified individuals or entities;
(B) A practitioner has committed criminal acts or is under
investigation by law enforcement authorities;
(C) A practitioner is under investigation by a regulatory or
licensing agency, or has committed acts or made omissions that may
reasonably result in investigation by a regulatory or licensing agency;
(D) A practitioner is the subject of multiple complaints and the
Office of the General Counsel of the Service has determined not to
pursue all of the complaints. The Office of the General Counsel of the
Service may inform complainants whose allegations have not been pursued
of the status of the other preliminary inquiries or the manner in which
the other complaint(s) against the practitioner have been resolved.
(ii) Disclosure of information for the purpose of conducting a
preliminary inquiry. The Office of the General Counsel of the Service,
in the exercise of discretion, may disclose documents and information
concerning complaints and preliminary inquiries to the following
individuals or entities:
(A) To witnesses or potential witnesses in conjunction with a
complaint or preliminary inquiry;
(B) To other governmental agencies responsible for the enforcement
of civil or criminal laws;
(C) To agencies and other jurisdictions responsible for
professional licensing;
(D) To the complainant or a lawful designee; and
(E) To the practitioner who is the subject of the complaint or
preliminary inquiry or the practitioner's counsel of record.
(2) Resolutions reached prior to the issuance of a Notice of Intent
to Discipline. Resolutions, such as warning letters, admonitions, and
agreements in lieu of discipline, reached prior to the issuance of a
Notice of Intent to Discipline will remain confidential.
(3) Notices of Intent to Discipline and action subsequent thereto.
Notices of Intent to Discipline and any action that takes place
subsequent to their issuance, except for the imposition of private
censures, may be disclosed to the public, except that private censures
may become part of the public record if introduced as evidence or a
prior record of discipline in any subsequent proceeding. Settlement
agreements reached after the issuance of a Notice of Intent to
Discipline may be disclosed to the public upon final approval by the
adjudicating official and the Disciplinary Committee. Disciplinary
hearings are open to the public, except as noted in Sec. 3.55(a)(iii)
of this chapter.
(h) Discipline of government attorneys. Complaints regarding the
conduct and behavior of government attorneys shall be directed to the
Office of Professional Responsibility of the Department of Justice.
Dated: January 12, 1998.
Janet Reno,
Attorney General.
[FR Doc. 98-1192 Filed 1-16-98; 8:45 am]
BILLING CODE 4410-30-M
