My immigration client's former employer wants to withdraw the affidavit of support his application depends on. Must I tell USCIS?

Plain-English summary

The inquiring attorney filed an application to adjust a client's immigration status, supported by a third-party affidavit of support from the client's now-former employer. The former employer contacted the attorney to say he no longer wishes his affidavit to be used. Given the client's family circumstances, the affidavit is a necessary element for the client to qualify, and without it (or another third-party affidavit) the application will be denied. An affidavit may be withdrawn if USCIS is notified before the applicant's status is adjusted, and the client's adjustment interview has not yet taken place. The lawyer asked whether he or she owes any obligation to the former employer to withdraw the affidavit, and whether the lawyer must notify USCIS now, given the lawyer intended to disclose the fact at the interview.

The panel concluded the lawyer must promptly notify USCIS that the former employer wishes to withdraw the affidavit. It framed the situation as a conflict between the lawyer's obligation to the client and the obligation of candor to the tribunal under Rule 3.3. Rule 3.3(a)(1) bars knowingly making, or failing to correct, a false statement of material fact to a tribunal, and Comment [3] recognizes that failure to disclose can be the equivalent of an affirmative misrepresentation; Rule 3.3(a)(3) also bars offering evidence the lawyer knows to be false.

The panel reasoned the lawyer has unique knowledge of a critical fact unknown to USCIS (that the client now lacks a required element of a successful application), and that silence about the withdrawal could be viewed as a misrepresentation on which the lawyer wishes USCIS to rely. Because the affidavit can no longer properly support the application, the lawyer must expeditiously advise USCIS. The panel added that Rule 3.1 (meritorious claims and contentions) also applies: the lawyer conceded the application as filed is subject to denial without the affidavit, and a lawyer has a duty not to pursue relief he or she knows has no legal or factual basis. The panel concluded that failing to promptly notify USCIS would ignore both the duty of candor and the duty not to pursue an unmeritorious claim.

In practice

Under this opinion, when a lawyer uniquely knows that a critical fact underlying a pending application has changed against the client's interest, the duty of candor requires prompt disclosure to the tribunal rather than waiting. The panel held that under Rule 3.3 the lawyer must promptly notify USCIS that the former employer wishes to withdraw the affidavit, because continued silence could operate as a misrepresentation on which USCIS is asked to rely. It held that Rule 3.1 independently requires disclosure, since the lawyer conceded the application is subject to denial without the affidavit and may not pursue relief he or she knows lacks a legal or factual basis.

Common questions

Q: Must the lawyer tell USCIS the affidavit is being withdrawn, even though it hurts the client?

A: Yes. The panel concluded the lawyer must promptly notify USCIS, because the duty of candor to the tribunal under Rule 3.3 requires it even though disclosure is adverse to the client.

Q: Can the lawyer wait until the adjustment interview to disclose?

A: No. The panel concluded the lawyer must expeditiously advise USCIS, reasoning that continued silence about a material fact the lawyer uniquely knows could be viewed as a misrepresentation on which USCIS would rely.

Q: Does the lawyer owe the former employer any duty to withdraw the affidavit?

A: The panel did not treat any duty to the non-client employer as the basis for its answer; it grounded the obligation to act in the lawyer's duty of candor to USCIS and the duty not to pursue an unmeritorious claim.

Q: What other rule requires disclosure here?

A: Rule 3.1. The panel concluded that because the lawyer conceded the application is subject to denial without the affidavit, the lawyer has a duty not to pursue relief he or she knows has no legal or factual basis.

Background and rules framework

The opinion applies Rule 3.3 (Model Rule 3.3, candor toward the tribunal), whose paragraph (a)(1) bars knowingly making or failing to correct a false statement of material fact to a tribunal and whose Comment [3] treats non-disclosure as potentially equivalent to affirmative misrepresentation, and paragraph (a)(3) bars offering evidence known to be false. It also applies Rule 3.1 (Model Rule 3.1, meritorious claims and contentions), barring assertion of an issue without a non-frivolous basis in law and fact, and references Rule 3.4 (fairness to opposing party and counsel). The panel treated USCIS as a tribunal to which the duty of candor is owed.

Citations and references

Rules of Professional Conduct:

• MR 3.3 (candor toward the tribunal; 3.3(a)(1), 3.3(a)(3); Comment [3])
• MR 3.1 (meritorious claims and contentions)
• MR 3.4 (fairness to opposing party and counsel)
• RI RPC 3.3, RI RPC 3.1, RI RPC 3.4

Statutes:

• None cited.

Cases:

• In re Schiff, 677 A.2d 422 (R.I. 1996), lawyer suspended for filing a false affidavit in violation of Rule 3.3.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 2025-01: No Candor Duty to Report a Former Client's False Attestation in a Proceeding Never Handled
• RI EAP Op. 89-12: No Duty to Disclose a Former Client's Inconsistent Court Testimony

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP-2022-04.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Rhode Island Supreme Court
Ethics Advisory Panel Op. 2022-4
Issued November 17, 2022

FACTS

The inquiring attorney represents a client who filed an application to adjust his immigration status. As part of that application, the client asked his now former employer to provide him with a third-party affidavit of support, which the employer did.

The inquiring attorney, who filed the application some time ago, recently received a telephone call and email from his/her client's former employer. The former employer advised that he no longer wishes to allow his affidavit to be used in support of the client's application. Given the client's family circumstances, this affidavit is a necessary element for him to qualify for an adjustment of status. Without this former employer's affidavit, or another third party being willing to provide an affidavit of support, the client's application will be denied.

The inquiring attorney advises that it is permissible for an individual to withdraw an affidavit of support if he or she notifies the U.S. Citizenship and Immigration Services ("USCIS") before the applicant's status is adjusted to lawful permanent resident. The attorney also advises that the application for adjustment will not be granted until after a personal interview of his/her client, which has not yet taken place.

ISSUE PRESENTED

The inquiring attorney asks whether he/she owes any obligation to his/her client's former employer to withdraw the affidavit of support given that he/she does not represent him and withdrawing the affidavit would be adverse to his/her client's interest.

The attorney also queries whether he/she is under an obligation, at the present time, to notify USCIS that the former employer no longer wishes to allow the affidavit to be used in support of his/her client's application. The attorney indicates that he/she does intend to notify USCIS of this fact at the personal interview.

OPINION

In accordance with the Rules of Professional Conduct, the inquiring attorney is required to promptly notify USCIS that the client's former employer wishes to withdraw the affidavit.

REASONING

This presents a situation in which the inquiring attorney's obligation to the client is at odds with his/her obligation of candor to the tribunal. Rule 3.3 of the Rules of Professional Conduct governs a lawyer's obligations of candor toward the tribunal. Section (a)(1) states: "A lawyer shall not knowingly: make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer." Moreover, "[t]here are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation." Rule 3.3 Comment [3]. Additionally, a lawyer may not offer evidence the lawyer knows to be false. See Rule 3.3(a)(3). See In re Schiff, 677 A.2d 422 (R.I.1996) (lawyer suspended for filing a false affidavit in violation of Rule 3.3).

The inquiring attorney has unique knowledge of a critical fact not known to USCIS, namely that his/her client is now without a required element of a successful adjustment of status application. The inquiring attorney owes a duty of candor to USCIS and his/her silence as to the former employer's desire to withdraw the affidavit could be viewed as a misrepresentation on which he/she wishes USCIS to rely. As the affidavit can no longer properly serve as a basis to support the client's application, the inquiring attorney has a responsibility to expeditiously advise USCIS of this fact. See also Rule 3.4 (placing limits on an attorney's conduct regarding access to evidence, obedience to the tribunal, and statements to the tribunal).

Rule 3.1 entitled "Meritorious Claims and Contentions" also applies. It states in pertinent part: "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law." Here, the inquiring attorney concedes that the client's application as presently filed is subject to denial without the former employer's affidavit. The inquiring attorney has a duty not to pursue relief that he/she knows there is no legal or factual basis for.

It is the Panel's opinion that in failing to promptly notify USCIS that the former employer wishes to withdraw his affidavit, the inquiring attorney is ignoring his/her obligation of candor to the tribunal as well as the obligation not to pursue an unmeritorious claim.