Can a lawyer represent a deported felon who illegally returned to the country in an open-court dependency case?

Plain-English summary

A lawyer asked about representing a deported felon in open court in a child dependency case. The committee said the question of whether representing a deported felon in open court constitutes assisting the client in the commission of a crime is a legal question beyond its scope. If, as a matter of substantive law, representing a client who has illegally returned to the country does constitute assisting in the commission of a crime, then the representation is prohibited under RPC 1.2(d) and RPC 3.3. The committee noted that the inquirer did not ask about client confidentiality under RPC 1.6, and the committee made no comment on that issue.

The committee noted several unknown variables that may affect the answer: it is unknown what actual assistance is contemplated or whether illegal re-entry is considered ongoing criminal activity, and it is unknown whether the client's illegal entry would be considered a material fact in the court proceedings under RPC 3.3.

Currency note

This opinion was issued in 1996, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here. Washington's RPC 1.2 and 3.3 correspond to ABA Model Rules 1.2 (scope of representation; counseling or assisting crime or fraud) and 3.3 (candor toward the tribunal).

Common questions

Q: Is it unethical to represent a deported felon who illegally re-entered the country?

A: The committee said whether the representation assists a crime is a legal question beyond its scope; if substantive law treats it as assisting a crime, then RPC 1.2(d) and 3.3 prohibit the representation.

Q: Did the committee decide that this representation was prohibited?

A: No. The committee made its answer conditional on the substantive-law question and listed unknown variables, including what assistance is contemplated and whether the illegal entry is a material fact under RPC 3.3.

Q: Did the committee address confidentiality?

A: No. The committee noted the inquirer did not ask about client confidentiality under RPC 1.6 and made no comment on that issue.

Background and rules framework

The opinion identified RPC 1.2(d) (a lawyer must not counsel or assist a client in conduct the lawyer knows is criminal or fraudulent, corresponding to ABA Model Rule 1.2(d)) and RPC 3.3 (candor toward the tribunal, corresponding to ABA Model Rule 3.3). The committee declined to resolve the underlying substantive-law question of whether the representation assists a crime, and made the application of both rules contingent on how that legal question is answered.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.2 (scope of representation; assisting crime or fraud); Washington RPC 1.2(d)
• ABA Model Rule 3.3 (candor toward the tribunal); Washington RPC 3.3

See also

• WA Ethics Op. 1651: Parent-Child Conflict After a Dependency Action
• WA Ethics Op. 1633: A Firm's Duties After a Former Member Stole Client Funds

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=736

Original opinion text

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

Advisory Opinion: 1654
Year Issued: 1996
RPC(s): RPC 1.2(d); 3.3
Subject: Assisting commission of crime; representing deported felon

The Committee reviewed your inquiry regarding representing a deported felon in open court in a child dependency case. The question of whether the act of representing a deported felon in open court constitutes assisting the client in the commission of a crime is a legal question, beyond the scope of this Committee. If, as a matter of substantive law, representation of a client who has illegally returned to this country does constitute assisting in the commission of a crime, then the representation is prohibited under RPC 1.2(d) and RPC 3.3. The inquirer does not ask the Committee's opinion regarding the issue of client confidentiality under RPC 1.6, and the Committee makes no comment regarding this issue.

The Committee notes there are several unknown variables which may impact the answer to this inquiry. For example, it is unknown what actual assistance is contemplated or whether illegal re-entry is considered an ongoing criminal activity. It is also unknown whether the client's illegal entry would be considered a material fact in the court proceedings under RPC 3.3.