Vicarious Trauma and Ethical Obligations for Attorneys Representing Immigrant Clients a Call to Build Resilience Among the Immigration Bar

• Publication year: 2020

Hannah C. Cartwright, Lindsay M. Harris, Liana M. Montecinos, and Anam Rahman^*

Abstract: This article analyzes the ethical obligations for attorneys representing immigrant clients and the consequences of vicarious trauma, compassion fatigue, and burnout for the immigration bar and immigrant clients. The authors identify barriers for immigration attorneys in preventing, recognizing, and responding to vicarious trauma in themselves and colleagues and suggest practical ways that the immigration bar can and should seek to build resilience.

Trauma is embedded in the practice of immigration law, especially for attorneys who represent clients seeking humanitarian and discretionary immigration relief. This article analyzes trauma within the practice of immigration law, the ethical obligations for attorneys representing immigrant clients under the ABA Model Rules of Professional Conduct, and the consequences of vicarious trauma among the immigration bar. The authors then identify barriers for immigration attorneys in preventing, recognizing, and responding to vicarious trauma and suggest practical ways that the immigration bar can build resilience.

Trauma and Immigration Law

Scholars from the fields of psychology and social work describe three potential periods of trauma for migrants: trauma suffered in the country of origin, trauma suffered during the migration journey, and trauma of relocating.¹ This "triple trauma paradigm," however, does not necessarily acknowledge that being undocumented in the United States often also traumatizes clients, because this concept was originally theorized in the context of refugees who already possess status upon arrival. The theory also does not encompass the reality that many immigrants are vulnerable to additional traumas once in the United States, including criminal victimization. Nor does this theory acknowledge that the process of applying for relief before an immigration court or U.S. Citizenship and Immigration Services (USCIS) may in itself be an additional source of trauma once an individual has arrived in the United States or is forced to start the process through the Migrant Protection Protocols (MPP) in Mexico.

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Given the layers of trauma that immigrant clients may be exposed to before even entering law offices, it is no surprise that many immigration attorneys—like others who find themselves in helping professions, such as public defenders, civil legal aid attorneys, and family law attorneys—find themselves regularly exposed to trauma as a part of their legal practices. This article places special emphasis on the experience of immigration attorneys engaged in removal defense and affirmative practices that involve applying for humanitarian relief such as asylum, withholding of removal, protection under the Convention against Torture (CAT), discretionary waivers, and relief under the Violence Against Women's Act (VAWA), including self-petitions and U-visas. All of these forms of relief require "the lawyer to prepare the client to tell the story of their pain, to tell the story of the torture they have experienced. . . . Thus, the trauma becomes the centerpiece of the representation and [requires attorneys to] engage it as a critical mass of legal data and evidence."² In other words, the trauma that the client has experienced becomes integral to the attorney-client representation itself, as does the evidence of the trauma that immigration attorneys must review and present to sustain a client's burden of proof. This wide range of evidence may include gruesome photos, death certificates, police reports, and newspaper articles documenting harm; forensic psychological and medical reports; and international reports on human rights abuses.

Attorneys and legal staff describe the "impact" of confronting these client narratives and documentary evidence in a variety of terms, in part because the legal profession has not adequately trained attorneys to recognize the spectrum of negative impact that working with traumatized populations may bring to the surface. Given this professional limitation, this article relies on the definitions delineated in the social work profession in order to better address the consequences and professional responsibility that attorneys have in addressing the impact of this work.

Colloquially, the term "burnout" is often used. However, "professional burnout" describes a specific phenomenon in which a professional's personal experiences, combined with the negative cumulative effects of providing services to clients over a particular time and organizational dynamics of the advocate's employment environment, result in "emotional exhaustion, deper-sonalization, and reduced sense of personal accomplishment."³ In contrast, "secondary trauma" or "secondary traumatic stress" results from engaging in an empathetic relationship with an individual suffering from a traumatic experience and bearing witness to the intense or horrific experiences of that particular person's trauma.⁴ "Compassion fatigue" is best described as a state in which an advocate—most often a professional engaged in a helping profession such as psychology, social work, or legal aid lawyering—is experiencing symptoms of both burnout and secondary trauma.⁵

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While all three—professional burnout, secondary trauma, and compassion fatigue—are consequences that attorneys may attempt to avoid in order to find sustainability in their professional lives, it is vicarious trauma that is most concerning and risky from a professional and ethical perspective. Vicarious trauma describes "the resulting cognitive shifts in beliefs and thinking that occur . . . in direct practice with victims of trauma."⁶ These changes in beliefs and thinking include alterations in "one's sense of self" as well as changes around fundamental issues such as "safety, trust, and control; and changes in spiritual beliefs."⁷ This shift may manifest itself in a variety of negative trauma exposure responses, such as the minimization of others' experiences, inability to embrace complexity, diminished creativity, avoidance and inability to listen, inability to empathize, and an inflated sense of importance related to one's work as well as corresponding feelings of helplessness—any one of which may cripple an attorney's ability to establish trusting relationships with clients and advocate zealously on their behalf.⁸ Additionally, other trauma exposure responses such as cynicism, anger, fear, guilt, hypervigilance, intrusive images, physical ailments and somatic symptoms ranging from headaches and stomachaches to more severe ailments, substance abuse, and chronic exhaustion may not only affect an attorney's representation but also their health and wellness.⁹ These negative trauma exposure responses may affect how attorneys think, react, and practice, thereby putting at risk the fundamental ethical obligations that attorneys have to immigrant clients.

Ethical Obligations of Immigration Attorneys

Many of the symptoms of vicarious trauma described above affect the most fundamental aspects of the attorney-client relationship. Thus, unabated negative trauma exposure responses may lead to serious ethical issues. This section will cover the ethical obligations of immigration attorneys and ethical issues that arise with attorneys experiencing vicarious trauma.

For immigration attorneys, there is no single comprehensive authority for guidance on ethics. Although USCIS and Executive Office for Immigration Review (EOIR) regulations address the discipline of attorneys and non-attorney representatives, they do not provide detailed guidance on actual ethical issues faced by immigration lawyers. Instead, the ethics rules applicable to immigration lawyers are the rules of ethics for the state in which the lawyer is licensed to practice. For purposes of this article, however, references will be made to the Model Rules of Professional Conduct (Model Rules) drafted by the American Bar Association (ABA). The majority of states, including the District of Columbia, have adopted the Model Rules either completely or with relatively minor changes.

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Competent Representation (Model Rule 1.1)

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Although Model Rule 1.1 may seem elementary and simply worded in its requirement of competence, maintaining the level of knowledge and thoroughness necessary to represent immigration clients is an ever-increasing challenge. Especially now, with immigration law and policy changing almost daily, it is critical that attorneys research and study the law to keep abreast of changes that may affect a client's case. The ethical duty of competence requires thoroughness and adequate preparation in handling a client matter, particularly considering the drastic consequences that removal or visa refusal have on our clients and families. Because the stakes are so high in immigration cases, immigration attorneys are under more pressure than ever to competently represent their clients.

For an attorney suffering from vicarious trauma, she must be especially mindful about whether she is able to provide competent representation as required under Model Rule 1.1. Indeed, even a knowledgeable, experienced, and dedicated immigration lawyer may be unable to provide competent representation if she is suffering from symptoms of vicarious trauma or burnout. For example, an attorney feeling overwhelmed, disoriented, and hopeless may be inclined to procrastinate until the last moment and then rush through the work or put off the required preparation altogether. Whether the lapse of competent representation is checking off the wrong box on an employment authorization renewal or failing to include crucially obvious supporting documentation, the prejudice to the client may be dire. Thus, prior...