NYSBA 2014-07-29

Must a New York lawyer disclose a client employee's false statements in a visa application to the federal agency if the client refuses?

Short answer: The opinion concludes Rule 3.3's duty to remedy false statements to a tribunal does not apply, because a visa or work-permit application is not an adjudicative proceeding before a tribunal; other rules and agency rules may permit or require action.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NY State Bar Ethics Opinion 1011: Duty to Remedy Fraudulent Visa Submissions

Short answer: The duty under Rule 3.3 to remedy false statements made to a tribunal does not apply to false statements in a visa or work-permit application, because such an application is not an adjudicative proceeding before a tribunal, though other rules may permit or require the lawyer to act.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

View original opinion

Plain-English summary

A New York lawyer filed employment-based immigrant visa petitions with the Department of Labor and related petitions with the Department of Homeland Security for a corporate client. A required attestation about the company's efforts to recruit U.S. workers was signed by a corporate recruiter, and the lawyer relied on those assurances in signing and filing the applications. After some workers obtained permanent resident status, the company discovered the recruiter had submitted knowingly false attestations. The lawyer withdrew from the affected matters and urged disclosure, but the client refused to consent to disclosing the fraud to the agencies. The question is whether Rule 3.3(b) requires the lawyer to disclose anyway.

The opinion first establishes that New York's rules govern. Under Rule 8.5(b), conduct "in connection with a proceeding in a court" applies the court's jurisdiction's rules, but immigration applications are not court proceedings, so Rule 8.5(b)(2) applies and, because the lawyer is licensed only in New York, the New York rules control. The committee notes federal agency conduct rules could also be relevant but says its jurisdiction is limited to interpreting the New York rules.

The opinion then concludes Rule 3.3 does not apply. Rule 3.3's duty to correct false statements, which can override confidentiality, runs to a "tribunal," defined as a body acting in an adjudicative capacity where a neutral official renders a legal judgment after the presentation of evidence or legal argument. Applying its criteria from N.Y. State 838, the committee finds a unilateral application for a benefit is not adjudicative: there is no adverse party, no oral proceeding, no cross-examination, and the consular and agency officials are not triers of fact. The opinion acknowledges contrary authority from a few other courts but is not persuaded, noting New York omitted the ABA's Rule 3.9 duty and that reading "tribunal" to reach benefit applications would lay a trap for the unwary.

Finally, the opinion explains that although Rule 3.3 does not require disclosure, other rules may permit or require action. Rule 1.6(b)(3) permits a lawyer to reveal confidential information to withdraw a certification the lawyer reasonably believes is still being relied on and was based on materially inaccurate information or is furthering a crime or fraud; Rule 1.6(b)(6) permits disclosure to comply with other law, including potentially the federal agency rules; and Rules 1.2(d) and 4.1 bar assisting fraud and making false statements to third persons.

In practice

Under this opinion, and under the New York rules as they stood at the time, a lawyer who learns that a client's visa or work-permit filing contained false statements is not subject to Rule 3.3's mandatory remedial-disclosure duty, because the application is not a proceeding before a tribunal. Per the opinion, the lawyer's options run through other rules: Rule 1.6(b)(3) permits, but does not require, disclosure to withdraw a certification still being relied on that was based on inaccurate information or used to further a crime or fraud, and Rule 1.6(b)(6) permits disclosure to comply with other law, including potentially the federal agency rules. The opinion also flags Rules 1.2(d) and 4.1 and the possible need to disaffirm a prior filing, while declining to decide whether silence here would itself require correction.

Common questions

Q: Does Rule 3.3 require a lawyer to disclose a client's false statements in a visa application?

A: No, under this opinion. The committee concludes (paragraphs 13, 22) that a visa or work-permit application is not an adjudicative proceeding before a "tribunal," so Rule 3.3's remedial-disclosure duty is not triggered.

Q: Why is a visa application not a proceeding before a tribunal?

A: The opinion applies the definition of "tribunal" and its N.Y. State 838 criteria (paragraphs 11 to 13): a unilateral application for a benefit has no adverse party, no oral proceeding or cross-examination, and is decided by officials who are not triers of fact, so it is not adjudicative.

Q: Even without a Rule 3.3 duty, may the lawyer still disclose?

A: Yes, in some circumstances. The opinion notes (paragraphs 19 to 20) that Rule 1.6(b)(3) permits a lawyer to disclose to withdraw a certification still being relied on that was based on inaccurate information or used to further a crime or fraud, and Rule 1.6(b)(6) permits disclosure to comply with other law.

Q: Do other rules constrain the lawyer here?

A: The opinion points (paragraph 21) to Rule 1.2(d), barring assisting conduct the lawyer knows is illegal or fraudulent, and Rule 4.1, barring knowingly false statements to third persons, and notes a lawyer may need to disaffirm a prior opinion or document, without deciding whether silence here would require correction.

Background and rules framework

The opinion interprets Rule 3.3 (Model Rule 3.3), conduct before a tribunal, and its definition of "tribunal" in Rule 1.0(w); Rule 8.5 (Model Rule 8.5), choice of law; Rule 1.6 (Model Rule 1.6), confidentiality and its disclosure exceptions; and Rules 1.2(d) and 4.1 (Model Rules 1.2 and 4.1), on assisting fraud and false statements to third persons. The committee also contrasts New York's rules with ABA Model Rule 3.9, which New York did not fully adopt, to support its reading that benefit applications are nonadjudicative.

The analysis turns on whether the immigration applications are adjudicative proceedings before a tribunal, using the committee's prior criteria in N.Y. State 838 and the ordinary meaning of "adjudication."

Citations and references

Rules of Professional Conduct:

New York RPC 3.3 (conduct before a tribunal) / Model Rule 3.3
New York RPC 8.5(b) (choice of law) / Model Rule 8.5
New York RPC 1.6 (confidentiality; disclosure exceptions) / Model Rule 1.6
New York RPC 1.2(d) (assisting illegal or fraudulent conduct) / Model Rule 1.2
New York RPC 4.1 (truthfulness to third persons) / Model Rule 4.1

Statutes and regulations:

8 C.F.R. § 1003.102(c) (remedial-measures duty for immigration practitioners)
6 U.S.C. § 271(b)(1); 5 U.S.C. § 551(6), (7) (adjudication and licensing)

Other opinions cited:

N.Y. State 838 (2010): criteria for whether an administrative proceeding is a "tribunal"
N.Y. State 968 (2013): "court" in Rule 8.5(b)(1) does not include administrative tribunals
ABA 93-375; ABA 314 (1965): bank examinations and the IRS are not adjudicative proceedings

Cases:

In re Vohra, 68 A.3d 766 (D.C. 2013); Matter of Bihlmeyer, 515 N.W.2d 236 (S.D. 1994); In re Conteh, 284 P.3d 724 (Wash. 2012): contrary authority applying Rule 3.3 to benefit applications

Source

Landing page: https://nysba.org/ethics-opinion-1011/