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

Author:Cimini, Christine N.
 
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INTRODUCTION I. IMPACT OF UNDOCUMENTED STATUS ON ATTORNEY-CLIENT RELATIONSHIP A. Hypothetical One: Entry with Proper Immigration Documentation and Not Asked to Provide Work Authorization Papers B. Hypothetical Two: Entry Without Proper Documentation and Not Asked to Provide Work Authorization Papers C. Hypothetical Three: Client Enters Lawfully but Uses a False Social Security Number to Obtain Employment D. Hypothetical Four: Client Enters Lawfully but Uses and Still Possesses False Immigration Documents to Obtain Employment II. THE RELEVANCE OF IMMIGRATION STATUS TO THE UNDERLYING LITIGATION III. BALANCING CONFIDENTIALITY AND DISCLOSURE OBLIGATIONS A. Immigration Status Determined Relevant to Underlying Litigation B. Immigration Status Determined Not Relevant to Underlying Litigation 1. Hypothetical One: Entry with Proper Immigration Documentation and Not Asked To Provide Work Authorization Papers 2. Hypothetical Two: Entry Without Proper Documentation and Not Asked to Provide Work Authorization Papers 3. Hypothetical Three: Client Enters Lawfully but Uses a False Social Security Number to Obtain Employment 4. Hypothetical Four: Clients Enters' Lawfully but Uses and Still Possesses False Immigration Documents to Obtain Employment IV. STRATEGIC DECISION TO DISCLOSE V. CONCLUSION INTRODUCTION

The presence of an estimated 11.5 million undocumented immigrants in the United States, (1) of which an estimated 7.2 million are working, (2) has become a flashpoint in the emerging national debate about immigration. Despite the fact that immigrants often accept jobs and working conditions that no citizens seem willing to undertake, (3) this country has responded with hostile state initiatives (4) and federal legislative efforts that not only fail to recognize their contributions, but also penalize many aspects of their daily existence. (5)

When an employer, wittingly or unwittingly, hires an undocumented worker, a question arises regarding the extent to which labor and employment statutory protections extend to undocumented workers. In analyzing this question, courts are forced to address the interplay between immigration and employment statutes and their respective underlying policy rationales. Prior to 2002, courts confronting these issues developed a body of law that harmonized these two distinct areas of jurisprudence, finding, in many contexts, that undocumented workers were entitled to statutory protections in the workplace. (6) This body of law shifted in 2002 when the United States Supreme Court decided Hoffman Plastic Compounds, Inc. v. NLRB and found that back-pay for undocumented workers under the National Labor Relations Act (NLRA) was foreclosed by federal immigration policy. (7) Since the Hoffman decision, lower courts have struggled to define the parameters of the case, and, while the jurisprudence is still evolving, many courts have limited Hoffman's reach and found workers entitled to seek legal remedies for workplace violations under a variety of statutes. (8)

Undocumented workers who pursue enforcement of their legal rights have heightened concerns about the disclosure of their status in the context of civil litigation. Because of the precarious situation that undocumented workers inhabit in the workplace, (9) the potential for mistreatment is great. (10) Further, once their status is disclosed, the ramifications for undocumented immigrants are uncertain at best; they could be reported to the Bureau of Immigration and Customs Enforcement (BICE) and deported, charged criminally and/or barred from reentering the country. (11)

Lawyers litigating employment-related claims involving undocumented workers are likely to confront a host of complex ethical issues. The ethical quandaries have grown increasingly more difficult in light of ongoing debates about comprehensive immigration reform. Recent legislative proposals contain stepped-up employer verification provisions, (12) make mere presence in the United States a federal crime, (13) and make those who help undocumented immigrants susceptible to liability as "alien smugglers." (14) These looming developments increase the potential risks and consequences to undocumented immigrants, their employers, and, potentially, to the lawyers who are involved in the litigation. The following case is illustrative of the complex interplay of ethical issues that can arise.

A group of workers sued their employer, a landscape company, for violations of the Fair Labor Standards Act (FLSA). As the case proceeded, defense counsel repeatedly questioned the immigration status of some of the workers and suggested that plaintiffs' counsel was somehow aiding and abetting illegal conduct by failing to report the plaintiffs' whereabouts to immigration officials. In an attempt to protect the clients, plaintiffs' counsel obtained a written agreement from the defendant that it would not raise the issue of plaintiffs' immigration status at depositions. This agreement was promptly violated at the first plaintiff's deposition and, in response, plaintiff asserted his rights under the Fifth Amendment. Then, during a break, defense counsel called the local police who, upon their arrival, called the local immigration enforcement office to report plaintiff as an illegal alien based only upon the assertion of plaintiff's Fifth Amendment rights. (15)

This Article explores the increasingly complex ethical obligations with regard to a client's immigration status in the context of employment-related civil litigation. (16) The inquiry begins with the initial question of whether or not a lawyer can represent an undocumented worker in such litigation. In light of prohibitions on lawyers assisting in conduct that is criminal or fraudulent, the answer to the question is not necessarily evident. (17) Undocumented workers currently can be criminally liable for various actions related to the manner in which they entered the country and the method by which they obtained employment. Thus, even though undocumented workers may have a legal fight to certain employment-related remedies, lawyers need to determine whether the rules of professional conduct bar such representation. Ultimately, this Article concludes that, in most every instance, lawyers are not prohibited from representing undocumented workers in employment-related civil litigation, even if actions related to their manner of entry or method of obtaining employment are criminal or fraudulent. (18)

After determining that a lawyer can represent an undocumented worker in employment-related civil litigation, the Article explores additional complexities that arise in the course of the representation when lawyers have to decide whether to protect or disclose a client's immigration status. The lawyer's decision to protect or disclose the information is, in the first instance, dependent upon whether or not immigration status is relevant to the underlying lawsuit. In the wake of Hoffman, employers have attempted to broaden the Court's holding by arguing that immigration status is relevant to a whole range of employment-related civil litigation. If immigration status is determined relevant to the litigation, the lawyer's ethical obligations to protect the information involve inquiries into the rules of confidentiality, the client's Fifth Amendment privilege against self-incrimination, (19) and the applicability and scope of the attorney-client privilege.

If, on the other hand, immigration status is determined not relevant, the client's immigration status would constitute confidential information and lawyers would be obligated to protect this information unless they were permitted or mandated to disclose it. The Model Rules of Professional Conduct contain a strong obligation to keep client information confidential as well as rules designed to prohibit lawyers from counseling or assisting a client in fraudulent or criminal activities. Proposed and existing legislation that characterizes an undocumented worker's presence or work in this country as criminal or fraudulent, thus, creates a tension between the lawyer's confidentiality obligations and the potential for permissive (20) or mandatory disclosure. (21) Among the applicable provisions are Rule 3.3(b)--which requires lawyers representing clients they know intend to engage or are engaging in criminal or fraudulent conduct to take reasonable remedial measures, including disclosure of such information to the tribunal (22)--and Rule 4.1(b)--which requires lawyers to disclose material facts in order to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6. (23)

In trying to address the tension between confidentiality and disclosure obligations, lawyers should bear in mind that there are two important limitations on the crime and fraud rules embodied in the Model Rules of Professional Conduct. First, the rules apply only if there is a sufficient nexus between the alleged crime or fraud and the pending action. (24) Second, the rules apply only if there is a sufficiently close relationship between the lawyer's actions and the client's alleged crime or fraud. (25) Essentially, disclosure is only required if the lawyer is directly counseling or assisting in the crime or fraud or if there is a close causal connection between the client's crime or fraud and the underlying litigation. Thus, despite the statutory provisions criminalizing certain acts, the constellation of ethical rules relating to client crime or fraud may not actually require a lawyer to disclose a client's immigration status, but, instead, may obligate the lawyer to protect this otherwise confidential information.

Lawyers representing employers will also be affected by the immigration status of opposing parties. (26) If immigration status is not relevant to the pending litigation, lawyers representing employers might consider whether it is appropriate to seek access to this information. (27)...

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