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Anticipating and Contending with Conflicts and Ethical Challenges

By Alexandra Fung

Attorneys representing UICs face the significant challenge of representing young clients within a legal system that does not account for their unique vulnerabilities and which provides very little guidance on such tricky issues as determining a child’s capacity to participate in her legal case or responding to conflicts that arise between a child and her caregiver. While attorneys representing children under other legal systems (such as child protection or child custody) can generally look to statutes, court orders, and other guidance to help define their role in relation to their child clients, no similar guidance exists for attorneys representing children in immigration proceedings, making it particularly challenging to respond to these issues.

This chapter examines four hypothetical scenarios that raise ethical challenges which are commonly encountered by attorneys representing UICs. Drawing on the experience of the legal experts and practitioners who participated in the convening, these scenarios are examined through the lens of the ABA Model Rules of Professional Conduct to highlight key issues and suggest potential responses to these tricky situations. Though the experts found the rules to be generally insufficient guides for addressing the kinds of questions that arise when representing clients of limited means, such as UICs and their families, they nonetheless provide common ground to begin a reflection on approaches to these ethical challenges.

Please note that this chapter seeks to present ideas about how to approach common ethical scenarios in UIC representation, and is not intended to serve as legal advice. Nothing in this manual should be construed as providing legal advice for any specific case.

 

Representing Children with Diminished Capacity

The starting point for representing any child, even a very young child or a child with a cognitive disability, is to maintain a normal attorney-client relationship as far as reasonably possible, including maintaining confidentiality and zealously advocating for the child’s legal interest. Attorneys representing children in immigration proceedings almost always do so in a traditional attorney role, which is client-guided and in which the attorney follows the client’s expressed wishes (the exception is for attorneys appointed by ORR to serve as a child advocates).  To the extent possible, an attorney must advocate for that child’s expressed interest in her legal proceedings, which for children in federal custody, could include their custody and release.

When a child’s ability to direct her representation is compromised, however, Rule 1.14 of the ABA Model Rules of Professional Conduct allows an attorney to take protective action on behalf of a client with diminished capacity. The comments to the rule offer guidance on factors that an attorney should consider to determine if a client’s capacity is in fact diminished. Notably, age alone does not determine a child’s capacity, and the Rules recognize that even very young children may be able to communicate their wishes, thereby directing their representation. Determining if a client has diminished capacity should focus on the client’s decision-making process, rather than the decision itself, and the client’s ability to articulate a rationale and understand the consequences of her decision. For example, the following questions may help to determine a child’s decision-making capacity:

  • Does the child understand the nature and consequences of her decision?
  • If yes, does the child retain information regarding the task long enough to make the decision?
  • If yes, does the child use or weigh the information as part of arriving at a decision?
  • If yes, does the child communicate her decision in some way?

Other criteria that a lawyer should balance to determine a child’s capacity to make a decision include the child’s developmental stage, cognitive ability, emotional and mental development, consistency of the child’s decisions, and the strength of the wishes and opinions of others who know the child, such as family, teachers, or hired experts.

If an attorney determines that a child’s diminished capacity impacts her ability to direct her representation, Rule 1.14 allows an attorney to take protective action when she reasonably believes that the client is at substantial risk of physical, financial, or other harm and the client cannot act adequately in her own interest. Such protective measures may include consulting with individuals such as the child’s family or hired professionals, seeking the appointment of a guardian ad litem – or for UICs, a child advocateappointed by ORR pursuant to the Trafficking Victim’s Protection Reauthorization Act (TVPRA) of 2008 – or allowing time to see if there is any clarification or improvement in the client’s condition within a specified time period. At all times, a lawyer should minimize her intrusion into the child’s decision-making autonomy. Finally, a client’s diminished capacity may be incremental and issue-specific. Just because a client lacks capacity to decide a certain question does not mean she lacks capacity to direct her representation in other matters.

Case 1: Maria

Born in Guatemala and raised by her maternal grandmother, 16-year-old Maria traveled to the United States with a 17-year-old cousin. They reunified with the cousin’s mother, Maria’s paternal aunt Flor, with whom she has been living for the past several months. Flor makes an appointment for Maria to see an immigration attorney because Maria is in removal proceedings and has a hearing coming up next month. Maria, however, suffers from selective mutism. Since Maria had almost no formal education, she cannot read or write, and the attorney’s ability to communicate with her is very limited. From speaking with Flor, the attorney knows that Maria’s parents left her in the care of her grandmother when she was five and that they have not been involved in her life since. The attorney believes that Maria is eligible for SIJS. Flor is willing to become Maria’s legal guardian, but because Maria’s ability to express herself is limited, the attorney cannot be sure how much she understands her case, or if she consents to the attorney’s representation or to any legal action on her behalf.

Practical approaches using the ABA Model Rules

  • Take time to establish rapport. Since communication is an issue, an attorney working with Maria should consider taking more time than she normally might before initiating representation to assess Maria’s ability to understand the attorney’s role and the services she will provide, as well as to assess the attorney’s own capacity to provide representation in a matter that may require more significant or specialized resources.
  • Seek creative solutions to bridge the communication barrier. Rule 1.4 of the ABA model rules governs a lawyer’s communications with her client and underscores the importance of providing information to a client to help her make informed decisions regarding her representation. When a client has diminished capacity, the goal is to maintain as much of a normal attorney-client relationship as possible and to minimize any intrusion into this decision-making authority. Since Maria’s ability to communicate in a traditional sense is limited, an attorney might consider alternative methods of communication in order to assess Maria’s capacity to engage the attorney’s services and direct her representation, including drawing pictures or using body language or movement to enhance communication. She can also consider consulting with and observing Maria’s family and how they communicate with her, including the aunt with whom she lives, the grandmother who raised her in Guatemala, and any teachers, social workers, or other trusted adults who regularly interact with Maria and may be able to provide insights about particularly effective methods of communication.
  • Engage family and other trusted adults. An example of a protective action permissible under Rule 1.14 includes consulting with family or other individuals who have the ability to protect the client. Maria’s aunt and cousin, as well as her grandmother in Guatemala, may be able to provide her attorney with additional information about Maria not only to assess her eligibility for relief and develop a case strategy, but also to help the attorney learn more about Maria so that she can better assess what Maria’s wishes might be on any particular matter in which Maria lacks capacity to express her interests directly. In addition to consulting with family, other trusted adults in Maria’s life, such as teachers or religious leaders, also may be able to provide valuable insights.
  • Consider involving other professionals. There is a growing trend in legal services agencies working with UICs to incorporate social workers into the services provided for these and other vulnerable clients. While there are many benefits to such cross-disciplinary collaborations, these partnerships also require special care and attention, as both sets of professionals are subject to distinct obligations under their profession’s ethical rules. In some agencies, social workers are incorporated as part of the legal team, and ABA Model Rule 5.3 specifies that the conduct of these non-lawyers employed by or associated with the lawyer must be compatible with the professional obligations of the lawyer, including Rule 1.6 on confidentiality. In others, however, attorneys and social workers operate separately, each responsible for adhering to their unique licensing, ethical, and reporting requirements. In Maria’s case, a social worker’s specialized training may help to facilitate communication and also may help to connect Maria with community services to enhance communication. How the social worker works (independently or as part of the legal team) will determine how information is shared between the two professionals. To read more about the intersections between the legal and social work professions, see Jane H. Aiken & Stephen Wizner, “Law as Social Work,” 11 Washington University Journal of Law & Policy 63-82 (2003) and Alexis Anderson, Lynn Barenberg, and Paul R. Tremblay, “Professional Ethics in Interdisciplinary Collaboratives: Zeal, Paternalism and Mandated Reporting,” Clinical Law Review 13, (2007): 659-718.

Case 2: Tomas

Tomas is 15 years old and was born in El Salvador. He never knew his father, and his mother died when he was young, so Tomas’s maternal grandmother raised Tomas and his older brother. Last year, Tomas’s brother was killed by a gang in their neighborhood. After the gang began threatening to hurt Tomas if the grandmother did not pay them “rent,” she arranged for him to escape to the United States, where his maternal aunt would care for him. Immigration officials apprehended Tomas after he crossed the border and they placed him in removal proceedings. He spent a few weeks in ORR custody before being released to live with his aunt, who retained an immigration attorney to represent Tomas in his immigration proceedings. Tomas’s attorney plans to submit an asylum application. Tomas, however, has a hard time adjusting to life in the United States and misses his grandmother. He feels that he is a burden to his aunt, and since he never received any direct threats from the gang, feels somewhat removed from that danger. Also, the threats to his grandmother have diminished since Tomas left El Salvador, so he feels it is time to return to the home and caretaker he misses dearly. He directs his attorney to help him request voluntary departure at his next court hearing. However, both Tomas’s grandmother and his aunt think it would be best for Tomas to remain in the United States because they worry that the gang continues to present a danger to him.

Practical approaches using the ABA Model Rules

  • Assess the decision-making process, not the decision. When a child client’s expressed wishes appear to conflict with his best interest and even his legal interest, it is natural for an attorney to question the child’s capacity to make this decision based solely on the decision that the child has made. In seeking to understand if a child has diminished capacity to make a particular decision, however, the ethical rules distinguish between the decision itself and the process by which the decision was reached. When counseling his client, Tomas’s attorney can explore with him if he truly understands what it will mean for him to return to El Salvador to be with his grandmother. Does Tomas fully appreciate the consequences of this decision, including the danger to which he will be returning and the potential relief which he will forfeit? Do his reasons for wanting to return take into account these consequences? Although at 15 years old Tomas is clearly able to articulate his own wishes1, in considering his capacity to make certain decisions, his attorney should consider not only his chronological age, but also his developmental stage, which may impact his ability to appreciate long-term consequences. Another important consideration is the consistency of Tomas’s wishes relating to his representation, and if the current decision is consistent with his previously expressed wishes.
  • Provide time for the client’s condition to improve. If an attorney determines that a client lacks capacity to make a certain decision, such as the decision to forgo possible legal relief and return to a dangerous situation in his home country, one protective measure offered in the comments to Rule 1.14 is to allow additional time to see if the client’s condition improves. Attorneys representing UICs often find that children who suddenly change their minds about pursuing immigration relief to return to home countries where their safety and well-being may be at risk will often return to their original decision to try and stay in the United States after taking time to consider this new direction. For children in federal custody in particular, detention fatigue often plays a significant part in leading children to act against their own legal and best interests. Providing additional time for Tomas to consider this life-changing decision is a protective measure that preserves his autonomy to make decisions regarding his representation, but which may also allow for the conditions impacting his capacity to be improved.
  • Engage family members and other trusted adults. Attorneys working with children often find it helpful, and at times necessary, to engage parents or other adult caregivers throughout the course of representing a child client. Rule 1.14 provides shelter for attorneys to engage with these trusted adults in certain circumstances without running afoul of Rule 1.6, which governs confidentiality. For example, the Comment to Rule 1.14 notes that if a child wishes to have family or other individuals present during conversations with his attorney, “the presence of such persons generally does not affect the applicability of the attorney-client evidentiary privilege,” though the attorney will look to the client – and not these family members – to make his own decisions. If, however, a client is unable to adequately communicate or consider decisions regarding his representation, the comments to Rule 1.14 also suggest consulting with family regarding the decision as a protective measure. At all times, the attorney must be careful to consider the interests of the client, and not the family being consulted, to guide the protective action taken.
  • Seek appointment of a TVPRA child advocate or guardian ad litemWhen a child’s lack of capacity compromises legal representation, another protective action contemplated by Rule 1.14 is the appointment of a guardian ad litem to represent the child’s best interest. For UICs, ORR can appoint independent child advocates to serve a similar role. Child advocates are particularly valuable in applying well-established best interest principles developed in other legal situations in the immigration context. Seeking appointment of a TVPRA child advocate to represent a child’s best interest could be a protective measure to consider for a child in Tomas’ situation, who may be making legal decisions against his own interest due to a lack of capacity. In deciding whether to seek appointment of a child advocate or guardian ad litem, the attorney should be guided by the duty to support the client’s autonomy as much as possible and to advance his known values and interests even when he lacks capacity to articulate those interests directly. A TVPRA child advocate will present fact-based information in support of a child’s best interest. Although a child’s best interests may not always be in line with a client’s expressed wishes, having separate advocates represent both the child’s expressed interest and his best interest may be particularly important when a child’s lack of capacity leads him to make decisions which put his safety and well-being at risk. Attorneys may submit requests for the appointment of a TVPRA child advocate by following the instructions at theyoungcenter.org/act/refer.
  • Engage a professional diagnostician. If appropriate and if resources allow, professional diagnosticians such as psychologists can help provide guidance regarding the extent and impact of a client’s diminished capacity. Credentialed psychiatrists and social workers can also speak to the relationship between child development and decision-making, as well as the impact of trauma or detention on child development and decision-making. These insights can provide an attorney with additional information to put the child’s situation in context, and potentially rule out diminished capacity.

Anticipating, Preempting, and Contending with Potential Conflicts Between UICs and Their Caregivers

Attorneys should expect to have some level of interaction with their client’s caregiver(s), from relying on the caregiver to bring the child to appointments, interviews, or hearings to a caregiver’s more substantive involvement in the preparation or handling of the child’s case. Children typically rely on adults for their care and well-being, and often these adults are also good sources of information which can be essential to children’s cases. For these reasons, adult caregivers can play an important role throughout the course of a child’s representation.

However, in any interactions with caregivers and family, attorneys need to be mindful of the potential for conflict when the caregiver’s interests are not aligned with the child’s. For example, the child’s parents or caregivers may be undocumented and may put themselves at risk by engaging in the child’s proceedings, such as accompanying the child to hearings or interviews or providing affidavits or other evidence. Alternatively, the child and her parents may have contradictory views about the representation. Varying degrees of inter-family tension also might impact representation, particularly in SIJS cases, where the child’s parent or guardian plays a critical role in the case and a break down in the family relationship can hinder or prevent a child from moving forward with relief.

When confronting situations that may present a conflict, an attorney must first identify who the client is, and therefore who directs the representation. Although there may be occasions when an attorney represents both a UIC client and her caregiver, typically only the child is the client and therefore directs the representation, though perhaps tempered by Rule 1.14 when applicable. However, because parents and caregivers may be very involved in a child’s representation, all parties must understand that the attorney represents only the child’s interests.

When dealing with unrepresented persons, which is likely the case for most UIC parents or guardians, Rule 4.3 of the ABA Model Rules advises that “a lawyer shall not state or imply that a lawyer is disinterested,” and if the unrepresented person misunderstands the role of the lawyer in a matter, “the lawyer shall make reasonable efforts to correct the misunderstanding.” In cases where a child’s eligibility for relief depends on the parents’ eligibility, such as derivative status on a parent’s U visa application, some organizations have adopted a best practice of signing “screening waivers” with parents to screen the parents for relief while making it clear that the screening is to advance the child’s interest and not to initiate an attorney-client relationship with the parents at that time. In cases where a reasonable possibility of conflict exists between the interests of the client and the unrepresented person, however, Rule 4.3 directs that “the lawyer shall not give legal advice…other than the advice to secure counsel.” As a matter of practice, attorneys should be mindful of the distinction between giving legal advice specific to a person’s individual case, which may not be advisable or permissible, and that of providing information, which may be appropriate in certain situations.  

Though it is generally a best practice to represent only the child (to avoid any potential conflicts which may arise from dual representation), there may be occasions when an attorney considers representing both a child and her caregiver, most notably in SIJS cases where the caregiver may need representation in state court to obtain a predicate order for the child’s SIJS petition. Rule 1.7 of the ABA Model Rules allows for representation of multiple parties as long as the representation of one client is not directly adverse to another and the attorney will not be “materially limited” in representing one client by his “responsibilities to another client, former client or a third person or by a personal interest of the lawyer.” Even if there is a material, concurrent conflict of interest, the rules permit an attorney to ethically represent more than one client if certain conditions are met, including each client giving “informed consent, confirmed in writing.”

Case 3: Juan

Juan is 6 years old. His parents, Ana and Pablo, arranged for him to join them in the United States after learning that the aunt who cared for him in Guatemala for five years was abusing him. Border Patrol apprehended Juan and placed him in ORR custody. Juan was recently released to his parents’ care, and they have retained an attorney to represent Juan in his removal proceedings. Although Juan is able to talk about the abuse he suffered while living with his aunt, most of the information about this abuse has come from Ana, and the attorney’s ability to get information from Juan is limited. The attorney thinks she can make an asylum claim for Juan based on the past abuse but needs to rely on sources beyond Juan – primarily his parents – to develop the claim. Ana is undocumented, and Pablo has a prior removal order, but both are willing to help with Juan’s case as best they can. Yesterday, Ana called Juan’s attorney to say that she and Pablo had received a letter telling them to present themselves to the local ICE office to accept service of Juan’s Notice to Appear. Ana is afraid to go but wants to do what is right for Juan and asks his attorney for advice about how to proceed.

Practical approaches utilizing the ABA Model Rules

  • Identify the client. Here, the family is looking for representation for Juan in his removal proceedings. If Juan is the client, then the attorney is bound to represent and advance Juan’s – and only Juan’s – interests. Rule 1.14 contemplates the possibility of involving parents or other individuals in conversations relating to Juan’s representation if Juan wants them to be involved and when such involvement is needed to assist in the representation. However, the attorney should be clear in all conversations with Juan and his parents that she serves only Juan’s interests and explain up front any potential for material conflicts that may arise between Juan’s and his parents’ interests. If the attorney perceives that Juan’s parents misunderstand her role, Rule 4.3 directs that she should “make reasonable efforts to correct the misunderstanding,” keeping in mind cultural barriers or expectations which may impact Ana and Pablo’s expectations.
     
  • Distinguish legal advice from information. In responding to Ana and Pablo’s request for advice, it is important for Juan’s attorney to be clear that her loyalty lies with Juan and that she is not representing Ana or Pablo. If Ana and Pablo’s interests have a reasonable possibility of conflicting with Juan’s, Rule 4.3 directs a lawyer against giving legal advice other than the advice to secure counsel. However, practitioners who work with UICs know that parents and sponsors may often seek, and even need, information on issues which may impact them during the course the representation of a UIC. Here, the distinction between providing information and providing legal advice becomes very important, and seasoned practitioners note the value of being able to share general information with caretakers, either verbally or through informational handouts. For example, many practitioners will speak generally about the potential risks for undocumented individuals attending court hearings or appointments with ICE without advising the unrepresented individual about their particular situation, and always clarifying the attorney’s exclusive loyalty to the child’s interests.
     
  • Informed consent. If there is a significant risk of a material conflict arising between Juan’s and his parents’ interests during the course of representing Juan, an attorney may want to consider seeking informed consent from Juan’s parents acknowledging this potential for conflict. In some jurisdictions, such consent may need to be in writing. At minimum, attorneys should document informed consent conversations in case notes.  

Case 4: Teresa, Victoria, and Yocelyn

Yocelyn is the mother of Teresa, age 17, and Victoria, age 14, two sisters who were recently reunified with their mother from ORR custody. Yocelyn has been living in the United States for 10 years, after she fled Honduras because of severe abuse by her daughters’ father. She had left Teresa and Victoria in the care of her mother, who raised them over the past 10 years but could no longer care for them because of her declining health. Yocelyn seeks representation for her daughters in their immigration court proceedings. Yocelyn herself is undocumented, but is willing to do anything to help her daughters in their cases. The girls are eligible for SIJS, but live in a state where Yocelyn would have to file the custody petition in state court to get a predicate order. Although the girls acknowledge that they are happy to be reunified with their mom, they also share some frustrations and conflicts that arise in the home; it had been a long time since they had seen their mom and everyone is having a difficult time adjusting to life together. Teresa, especially, expresses her desire to live on her own as soon as possible.

Practical approaches utilizing the ABA Model Rules

  • Informed consent. Rule 1.7 deals with conflicts of interests between current clients, and prevents the representation of a client when such representation is either directly adverse to another client or there is a significant risk that the attorney will be materially limited by her responsibilities to another client. In the case of Yocelyn and her daughters, Yocelyn seeks representation in custody proceedings to obtain a predicate order which would allow her daughters to pursue SIJS. At this time, their interests are not adverse, but rather complementary. However, it is possible that a break-down in the family relationship may lead to conflicting interests in the future, so it is best to proceed with caution when contemplating dual representation of a UIC client and her parent or guardian in a similar situation. Under Rule 1.7, an attorney can represent multiple clients even when there is a significant risk of a material conflict as long as: (1) the attorney can provide competent and diligent representation to each client, (2) the representation is not prohibited by law, (3) the representation does not involve the assertion of a claim by one client against the other, and (4) each client gives informed consent, confirmed in writing. Although the Comments to Rule 1.7 indicate that the “mere possibility of subsequent harm” does not require consent, an attorney wishing to be proactive about addressing potential conflicts of interests may consider getting informed consent from Yocelyn and each of her daughters before agreeing to represent Yocelyn in the state court proceedings and the girls in their immigration proceedings. The attorney should be clear that each party is represented for a discrete purpose and explain to each the possibility of any material conflicts which may arise.
     
  • Tension does not always equal conflict. As discussed in the Comments to Rule 1.7, key to the analysis is the materiality of the conflict to the representation, and if “a lawyer’s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities or interests.” Certain familial or domestic tensions may present challenges to the clients without constituting an actual conflict of interest and attorneys should be careful about assuming that a conflict exists simply because there is tension within the family. 
     
  • Refer out. There may be cases where the possibility for conflict between a parent and a child is so great that a lawyer chooses to avoid the dual representation from the start. Similarly, conflicts that arise in the course of the dual representation may require the attorney to withdraw from the representation of one or both clients. In these cases, it will be important to develop referrals or partnerships within the community to serve both parties effectively, thereby expanding access to SIJS for UICs. (See Chapter 5of this manual).

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1. Comment 1 to Rule 1.14 states as an example that “children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody”

 

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