Can a Texas lawyer appear as a 'friend of the court' for a minor in immigration court without becoming the minor's lawyer?

Plain-English summary

The opinion considers an immigration court that lets Texas lawyers appear as "friend of the court" to assist minors who are parties, without entering a formal appearance; in that role the lawyer explains the proceedings to the minor, advises the minor, and gives the court information about the case.

The Committee reviews the federal framework. Under 8 C.F.R. section 1292.1, a person may be represented before the immigration court by listed categories including licensed lawyers and a "reputable individual" of good moral character, the latter only if appearing on an individual-case basis at the person's request, without remuneration and with a written declaration to that effect, with a pre-existing relationship to the person, and with the presiding official's permission (which is not granted to anyone who regularly engages in immigration practice). The Immigration Court Practice Manual requires anyone representing a person to file Form EOIR-28 and check the box for the category in which the person qualifies. Because Rule 3.03(a)(1) and (2) require candor to a tribunal and Rule 8.04(a)(3) bars dishonesty, a lawyer who accepts appointment as a "reputable individual" will violate those rules if the lawyer has reason to know the regulatory qualifying conditions are not met.

The Committee then turns to whether a client-lawyer relationship forms. That is a matter of contract law, and citing LeBlanc v. Lange and Valls v. Johanson & Fairless, the Committee notes a relationship may arise by implication where a lawyer knows a person reasonably expects legal services and does nothing to correct the misapprehension. An unaccompanied minor who may not speak English could reasonably assume the lawyer is providing legal services when the lawyer explains and advises on the case and argues to the court. If a relationship forms, the lawyer must comply with the rules governing it: Rule 1.01(a) (no matter beyond the lawyer's competence absent assistance or an emergency limit), Rule 1.01(b) (no neglect), and Rule 1.03 (keep the client informed and explain matters). The lawyer may limit the scope of representation under Rule 1.02(b), but a limitation cannot remove the duty of competent and diligent representation, must be communicated, and requires the client's informed consent; the Committee questions whether an unaccompanied minor who may not speak English could give such consent, and notes Rule 1.02(g) requires considering whether a guardian is needed to protect the client. If the lawyer does not intend to create a relationship, the lawyer must clearly define the role and not participate in a way that would reasonably lead the minor to believe the lawyer represents the minor.

In practice

Under this opinion, and under the Texas rules as they stood at the time, a lawyer who appears as a friend of the court for a minor in immigration court must take care with two things. First, a lawyer appointed as a "reputable individual" violates Rule 3.03 and Rule 8.04(a)(3) if the lawyer has reason to know the regulatory qualifying conditions in 8 C.F.R. section 1292.1 are not met. Second, the opinion holds that advising the minor and arguing to the court can form a client-lawyer relationship by implication; if it does, the duties of competence (Rule 1.01(a)), diligence (Rule 1.01(b)), and communication (Rule 1.03) apply, and any limited scope under Rule 1.02(b) still requires competent, diligent representation, effective communication, and the client's informed consent, with Rule 1.02(g) requiring consideration of whether a guardian is needed. If the lawyer does not intend a representation, the opinion holds the lawyer must clearly define the role so the minor does not reasonably believe the lawyer is representing the minor.

Common questions

Q: Can a lawyer appear as a "friend of the court" for a minor without representing the minor?

A: Per Opinion 628, only with care. If the lawyer appears as a "reputable individual," the lawyer must actually meet the regulatory qualifying conditions, or violate the candor (Rule 3.03) and dishonesty (Rule 8.04(a)(3)) rules; and the lawyer must define the non-representation role so the minor does not reasonably believe the lawyer is representing the minor.

Q: When does advising the minor turn into a client-lawyer relationship?

A: The Committee says the relationship is contractual and may arise by implication where the lawyer knows the minor reasonably expects legal services and does nothing to correct that. An unaccompanied minor who may not speak English could reasonably assume the lawyer who advises and argues for him is his lawyer.

Q: If a relationship forms, what duties apply?

A: Competence (Rule 1.01(a)), no neglect (Rule 1.01(b)), and keeping the client reasonably informed (Rule 1.03). A limited-scope arrangement under Rule 1.02(b) cannot eliminate competent and diligent representation, must be communicated, and needs the client's informed consent.

Q: Does the minor's age affect the analysis?

A: Yes. The Committee questions whether an unaccompanied minor who may not speak English can give informed consent to a scope limitation, and notes Rule 1.02(g) requires the lawyer to consider whether a guardian is necessary for the client's protection.

Background and rules framework

The opinion interprets Texas Disciplinary Rule 3.03(a) (candor to a tribunal; ABA Model Rule 3.3) and Rule 8.04(a)(3) (dishonesty; ABA Model Rule 8.4(c)), together with Rule 1.01(a) and (b) (competence and diligence; ABA Model Rule 1.1), Rule 1.03 (communication; ABA Model Rule 1.4), and Rule 1.02(b) and (g) (scope of representation and clients with diminished capacity; ABA Model Rules 1.2 and 1.14). The federal framework is set by 8 C.F.R. section 1292.1 and the Immigration Court Practice Manual (Form EOIR-28).

Citations and references

Rules of Professional Conduct:

• MR 3.3 (candor to a tribunal); MR 1.1 (competence); MR 1.2 (scope); MR 1.14 (client with diminished capacity); MR 8.4(c) (dishonesty)
• Texas Disciplinary Rules 3.03(a), 8.04(a)(3), 1.01(a), 1.01(b), 1.02(b), 1.02(g), 1.03

Statutes and regulations:

• 8 C.F.R. section 1292.1 (representation before the immigration court; the "reputable individual" category)
• Immigration Court Practice Manual sections 2.1 and 2.3(c) (Form EOIR-28)

Cases:

• LeBlanc v. Lange, 365 S.W.3d 70 (Tex. App.-Houston [1st Dist.] 2011, no pet.), the attorney-client relationship is contractual
• Valls v. Johanson & Fairless, 314 S.W.3d 624 (Tex. App.-Houston [14th Dist.] 2010, no pet.), a relationship may arise by implication where the lawyer fails to correct a reasonable expectation of legal services

See also

• TX Ethics Op. 635: Limited-Scope Advice on Self-Help Forms for Pro Se Litigants
• ABA Formal Op. 07-446: Undisclosed Assistance to Pro Se Litigants
• ABA Formal Op. 472: Communication With a Person Receiving Limited-Scope Representation

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-628/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_628.pdf

Original opinion text

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

QUESTION PRESENTED

May a lawyer appear as "friend of the court" for a minor who is a party before an immigration court, provide factual background and legal argument to the court, and advise the minor as to the proceedings without acting as a lawyer for the minor?

STATEMENT OF FACTS

An immigration court allows Texas lawyers to appear as "friend of the court" to assist minors who are parties to court proceedings. The court does not require a lawyer to enter a formal appearance on a minor's behalf. In such circumstances, the lawyer explains the proceedings to the minor, advises the minor, and provides the court with information about the minor's case.

DISCUSSION

Under 8 C.F.R. § 1292.1, a person may be represented in proceedings before an immigration court by any of the individuals listed in that regulation. Licensed lawyers are one of the categories of qualified individuals who may appear before the immigration court in representation of another. A "reputable individual" of good moral character also may represent an unaccompanied person before the court, provided that:

"(i) He is appearing on an individual case basis, at the request of the person entitled to representation;
(ii) He is appearing without direct or indirect remuneration and files a written declaration to that effect;
(iii) He has a pre-existing relationship or connection with the person entitled to representation (e.g., as a relative, neighbor, clergyman, business associate or personal friend), provided that such requirement may be waived, as a matter of administrative discretion, in cases where adequate representation would not otherwise be available; and
(iv) His appearance is permitted by the official before whom he wished to appear . . . , provided that such permission shall not be granted with respect to any individual who regularly engages in immigration and naturalization practice or preparation, or holds himself out to the public as qualified to do so." 8 C.F.R. § 1292.1(a)(3).

In addition 8 C.F.R. § 1292.1(d) permits the Board of Immigration Appeals to "grant permission to appear, on a case-by-case basis, as amicus curiae, to an attorney or to an organization represented by an attorney, if the public interest will be served thereby."

According to Section 2.1 of the Immigration Court Practice Manual, anyone who represents a person before an immigration court must file a "Notice of Entry of Appearance as Attorney or Representative Before the Immigration Court (Form EOIR-28)." Section 2.3(c) of the Immigration Court Practice Manual provides that "[a]ttorneys must enter an appearance before the Immigration Court by filing a Notice of Entry of Appearance as Attorney or Representative Before the Immigration Court (Form EOIR-28)." Assuming that a lawyer files Form EOIR-28, the lawyer must check one of the six boxes to identify the category in which the lawyer is qualified to appear on behalf of the individual. The first box indicates that the person is a licensed lawyer. A person entering an appearance as a "reputable individual" would check a separate box.

Rule 3.03(a)(1) and (2) of the Texas Disciplinary Rules of Professional Conduct requires lawyers to be truthful and candid to tribunals:

"(a) A Lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal;
(2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting in a criminal or fraudulent act[.]"

Rule 8.04(a)(3) requires a lawyer not to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation[.]" Thus, a lawyer who accepts an appointment as a "reputable individual" to appear as a "friend of the court" on behalf of an individual before the immigration court will violate Rule 3.03 and Rule 8.04(a)(3) if the lawyer has reason to know that the qualifying conditions set forth in the relevant regulations have not been met.

Assuming the lawyer qualifies and is appointed as a "reputable individual" and appears as a "friend of the court," the question arises as to whether a client-lawyer relationship exists between the lawyer and the individual who is the party to the proceedings before the immigration court. That question is a matter of contract law: "The attorney-client relationship is contractual. . . . In order to establish the relationship, the parties must either explicitly or by their conduct manifest an intent to create it." LeBlanc v. Lange, 365 S.W.3d 70, 79 (Tex. App.-Houston [1st Dist.] 2011, no pet.) (citations omitted). "[A]n attorney-client relationship may arise by implication if the lawyer knows a person reasonably expects him to provide legal services but does nothing to correct that misapprehension." Valls v. Johanson & Fairless, 314 S.W.3d 624, 634 (Tex. App. – Houston [14th Dist.] 2010, no pet.). The lawyer must consider whether an unaccompanied minor, who may not speak English, might reasonably assume that the lawyer was providing legal services if the lawyer accompanies the minor to appear before an immigration court to explain the proceedings to the minor, to advise the minor, and to provide the court with information about the minor's case. If a client-lawyer relationship is established under Texas law, the lawyer must comply with the Texas Disciplinary Rules of Professional Conduct regarding the client-lawyer relationship. Among other requirements, Rule 1.01(a) prohibits a lawyer from accepting or continuing the relationship if the matter is beyond the lawyer's competence unless the lawyer is assisted by another competent lawyer in the matter or the lawyer's advice or assistance is limited to what is reasonably necessary in an emergency. Under Rule 1.01(b) the lawyer may not neglect a matter entrusted to him. As summarized by Comment 6 to Rule 1.01, "a lawyer should act with competence, commitment and dedication to the interest of the client and with zeal in advocacy upon the client's behalf." In addition, under Rule 1.03, the lawyer has a duty to keep the client reasonably informed and to explain a matter to the client to the extent reasonably necessary for the client to make informed decisions.

Although the lawyer would be permitted to limit the scope of representation of the minor as a client, the limitation could not remove the lawyer's obligation to provide competent and diligent representation. Furthermore, any limitation on the representation would have to be effectively communicated to the client and the client would have to give an informed consent to the limitation. Rule 1.02(b). In the circumstances here considered, the lawyer must consider whether an unaccompanied minor, who may not speak English, would be capable of making an informed decision about limitations on the scope of representation. In addition, Rule 1.02(g) obligates the lawyer to consider whether the appointment of a guardian would be necessary for the client's protection.

Rule 8.04(a)(3) prohibits lawyers from engaging in "conduct involving dishonesty, fraud, deceit or misrepresentation[.]" If the lawyer appointed as a "friend of the court" for a minor does not intend to create a client-lawyer relationship with the minor, the lawyer must clearly define to the minor the role the lawyer intends to perform and such role cannot involve participating in the proceeding in any manner that would reasonably lead the minor to believe that the lawyer was representing the minor.

CONCLUSION

If a lawyer provides advice to a minor appearing before an immigration court and provides legal and factual argument to the court on behalf the minor, the lawyer must ensure that the minor clearly understands the nature of their relationship and the role of the lawyer. When the actions of the lawyer establish a client-lawyer relationship by express or implied agreement, the lawyer is obligated to comply with the requirements of the Texas Disciplinary Rules of Professional Conduct regarding the client-lawyer relationship.

Tex. Comm. On Professional Ethics, Op. 628 (2013)