Can a lawyer report an opposing party's immigration status to ICE to gain an advantage in a civil case?
Apply this to your situation
This page answers the general question as of 2009. Ezel answers yours: whether it's allowed on your facts, under the current North Carolina Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer defending a medical malpractice case believed the plaintiff mother was an undocumented immigrant. Because the forecast damages were based in part on the cost of medical care in the United States (which would be substantially lower in Mexico), the lawyer asked whether he could serve discovery probing the mother's manner of entry and citizenship status, and whether he could report her to ICE.
On discovery, the opinion concludes the lawyer is not prohibited from serving such requests if they are intended to uncover relevant, admissible evidence (or evidence that may lead to it) and are not for an improper purpose such as creating a file to threaten deportation, to harass the plaintiff, or for some other improper end (Rule 3.1, Rule 4.4, and 2005 FEO 3).
On reporting, the opinion concludes the lawyer may not call ICE to report the mother's status, unless federal or state law requires it. Rule 4.4(a) bars using means with no substantial purpose other than to embarrass, delay, or burden a third person, and Rule 8.4(d) prohibits conduct prejudicial to the administration of justice, read broadly under Comment [4]. The committee found it unlikely that reporting would be motivated by any purpose other than those the rules prohibit, and analogized to 2005 FEO 3, which held a lawyer may not threaten to report an opposing party or witness to immigration officials to gain a civil-settlement advantage. The opinion adds that the analysis does not change if the mother is not a party to the litigation (Rule 4.4(a)).
In practice
Under the North Carolina rules as they stood at the time, the opinion holds that probing citizenship status through discovery is permissible only when tied to relevant evidence and a proper purpose, while reporting an opposing party to ICE to gain litigation advantage is prohibited absent a legal duty to report. The opinion treats the prohibition as applying whether or not the person reported is a party.
Common questions
Q: Can a lawyer ask about an opposing party's immigration status in discovery?
A: Per Opinion #1, yes, if the requests seek relevant, admissible evidence (or evidence that may lead to it) and are not aimed at threatening deportation, harassing the party, or another improper purpose.
Q: Can a lawyer report the opposing party to ICE during a civil case?
A: Per Opinion #2, no, unless federal or state law requires reporting. The committee found reporting here would serve no purpose other than those Rules 4.4(a) and 8.4(d) prohibit.
Q: Does it matter whether the person is actually a party to the lawsuit?
A: No. Opinion #3 concludes the answer does not change for a non-party, citing Rule 4.4(a).
Background and rules framework
The opinion interprets North Carolina Rules of Professional Conduct 3.1 (meritorious claims and contentions), 4.4(a) (respect for the rights of third persons; no means whose only substantial purpose is to embarrass, delay, or burden), and 8.4(d) (conduct prejudicial to the administration of justice, read broadly per Comment [4]). These correspond to ABA Model Rules 3.1, 4.4, and 8.4. It applies the committee's prior 2005 FEO 3 on threatening to report parties or witnesses to immigration authorities.
Citations and references
Rules of Professional Conduct:
- Model Rule 3.1 / NC Rule 3.1 (meritorious claims)
- Model Rule 4.4 / NC Rule 4.4(a) (rights of third persons)
- Model Rule 8.4 / NC Rule 8.4(d) (conduct prejudicial to the administration of justice)
Other opinions cited:
- 2005 FEO 3 (threatening to report an opposing party or witness to immigration officials)
See also
Source
- Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2009-formal-ethics-opinion-5/
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Inquiry #1:
Lawyer is defending a medical malpractice lawsuit in which a mother and her child are plaintiffs. The child is a natural born US citizen. Lawyer believes the mother is a Mexican citizen and suspects she is an undocumented alien.
The basis of the suit is injury to the child during birth. Plaintiff's counsel has forecast damages of over $30,000,000. The amount of damages is based in part on the cost of medical care in the United States. The cost of the same medical care in Mexico would be substantially less.
May Lawyer serve plaintiffs with discovery requests that require Mother to reveal her manner of entry into the United States and the status of her citizenship or legal residence?
Opinion #1:
Yes. If the discovery requests are intended to uncover information that is relevant to the defense of the case and which is admissible evidence (or may lead to admissible evidence) and is not for the improper purpose of creating a file to use to threaten the plaintiff with deportation, to harass the plaintiff, or for some other improper purpose, lawyer is not prohibited from engaging in such discovery. See Rule 3.1, Rule 4.4, 2005 FEO 3.
Inquiry #2:
If Lawyer engages in the discovery and determines that Mother is in the country illegally, may Lawyer call the US Immigration and Customs Enforcement (ICE) and report the mother's status?
Opinion #2:
No, unless federal or state law requires Lawyer to report Mother's illegal status to ICE.
Rule 4.4(a) provides that, in representing a client, "a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person." Rule 8.4(d) provides that it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice. Comment [4] to Rule 8.4 provides that "paragraph (d) should be read broadly to proscribe a wide variety of conduct, including conduct that occurs outside the scope of judicial proceedings."
It is unlikely that Lawyer's impetus to report Mother to ICE is motivated by any purpose other than those prohibited under these principles. The Ethics Committee has already determined that a lawyer may not threaten to report an opposing party or a witness to immigration officials to gain an advantage in civil settlement negotiations. 2005 FEO 3. Similarly, Lawyer may not report Mother's illegal status to ICE in order to gain an advantage in the underlying medical malpractice action.
Inquiry #3:
Would the answer to either Inquiry #1 or Inquiry #2 change if Mother was not a party to the litigation?
Opinion #3:
No. See Rule 4.4(a).
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