Can government lawyers submit a position paper instead of appearing in person at routine immigration status hearings where nothing substantive will be addressed?

Plain-English summary

The Office of the Chief Counsel (OCC) for ICE represents the agency in removal proceedings before the Immigration Court. Such cases, particularly those involving unaccompanied children, often take years because respondents pursue external applications to other agencies or courts, and the Immigration Court schedules periodic status hearings that are repeatedly adjourned because there is nothing to report while those applications are pending. To increase efficiency, the OCC proposed having its attorneys submit position papers instead of appearing in person at these status hearings, assuming the Immigration Court would allow it (¶¶ 1-4).

The committee began with Rule 8.4(d), which prohibits conduct prejudicial to the administration of justice, explaining via Comment [3] that the prohibition targets conduct that seriously harms the justice system and is inconsistent with a lawyer's responsibility as an officer of the court (¶ 5). It noted Rule 3.4(c), which bars disregarding a standing rule or ruling of a tribunal: if the court required personal attendance, the attorneys could not ethically refuse, and lawyers who skip court-ordered hearings or disregard a tribunal's rulings are subject to discipline (¶¶ 6-7, citing Matter of Cronk and others). But the committee observed that none of those disciplinary cases involved a non-appearance to which both the client and the court consented (¶ 8).

Turning to the client relationship, the committee explained that where the tribunal permits a position paper, the choice whether to appear in person is one of "means" rather than "objectives," governed by Rules 1.2(a) and 1.4(a)(2), to be made by the lawyer in consultation with the client (¶ 9). It cautioned that a client may not limit the representation in a way that compels neglect, inadequate preparation, or incompetent representation, and that client consent alone is not enough: the lawyer also needs the court's concurrence under Rules 3.4(c) and 8.4(d) (¶ 9). Rule 1.1(c)(2) (not intentionally prejudicing the client) and Rule 1.1(a) (competence) underscore the need for court approval (¶ 10). On the OCC's representation that position papers would convey the same information as a personal appearance and would not prejudice its client, and given that whether non-attendance delays justice rests with the Immigration Court, the committee saw no reason the rules would prohibit the practice if the court permits it (¶ 11).

In practice

Under the New York rules as they stood at the time of the opinion, the opinion permits the proposed practice subject to two consents. Per the opinion, the decision to appear by position paper rather than in person is a question of "means" under Rules 1.2(a) and 1.4(a)(2), made by the lawyer in consultation with the client, but the lawyer also needs the Immigration Court's concurrence because Rules 3.4(c) and 8.4(d) bar disregarding a tribunal's requirements. The committee conditions the practice on its not impeding competent and diligent representation under Rule 1.1, and it treats whether non-attendance would delay the administration of justice as a matter for the Immigration Court.

Common questions

Q: Can a government lawyer skip an in-person status hearing by filing a position paper?

A: Yes, where the court permits it and the client consents, and only for hearings at which no substantive or procedural issues will be addressed (¶ 12).

Q: Is the court's permission enough on its own?

A: No. The committee treated this as a question of means requiring consultation with the client under Rules 1.2(a) and 1.4(a)(2), and also requiring the court's concurrence under Rules 3.4(c) and 8.4(d) (¶ 9).

Q: What if the court requires personal attendance?

A: Then the lawyer could not ethically refuse to attend; disregarding a tribunal's standing rule or ruling violates Rule 3.4(c) and skipping court-ordered hearings can be disciplined under Rule 8.4(d) (¶ 6, ¶ 7).

Q: Does the lawyer still owe competence and diligence duties?

A: Yes. The practice is permitted only as long as it does not impede competent and diligent representation under Rule 1.1, and Rule 1.1(c)(2) bars intentionally prejudicing the client (¶ 10, ¶ 12).

Background and rules framework

The opinion interprets New York Rule 8.4(d) (conduct prejudicial to the administration of justice), Rule 3.4(c) (disregarding a tribunal's standing rule or ruling), Rules 1.2(a) and 1.4(a)(2) (objectives, means, and consultation), and Rule 1.1(a) and (c)(2) (competence; not prejudicing the client), corresponding to ABA Model Rules 8.4, 3.4, 1.2, 1.4, and 1.1. The analysis turns on whether both the tribunal and the client consent and whether the practice impairs competent, diligent representation.

Citations and references

Rules of Professional Conduct:

• MR 8.4 / NY RPC 8.4(d) (conduct prejudicial to the administration of justice)
• MR 3.4 / NY RPC 3.4(c) (disregarding a tribunal's rule or ruling)
• MR 1.2 / NY RPC 1.2(a) and MR 1.4 / NY RPC 1.4(a)(2) (objectives, means, consultation)
• MR 1.1 / NY RPC 1.1(a), 1.1(c)(2) (competence; not prejudicing the client)

Statutes:

• NY Penal Law § 215.50 (criminal contempt), referenced for the purpose of Rule 3.4(c)

Cases:

• Matter of Cronk, 52 A.D.3d 54 (2d Dep't 2008), discipline for failing to attend scheduled court conferences

Other opinions cited:

• N.Y. State 751 (2002): a government agency may not require lawyers to take more matters than they can competently handle
• N.Y. State 719 (1999) and N.Y. State 613 (1990): a lawyer may not vary or disregard a court rule

See also

• NY State Bar Op. 1047: Government lawyer and the no-contact rule
• NY State Bar Op. 1045: In-house counsel as a witness in an agency investigation

Source

• Landing page: https://nysba.org/ethics-opinion-1037/