The inquirer represented a family before the Immigration and Naturalization Service with respect to their Application to Adjust Status (i.e. to become lawful permanent residents of the United States). At the hearing all members of the family were asked a series of questions on background matters, including whether they had been involved in any kind of criminal activity or been arrested. All the family members answered the questions regarding criminal activity and arrests in the negative. About 10 days later the father contacted the inquirer's office and indicated that he had been arrested 9 months before. The inquirer states that if the inquirer had been aware of the arrest prior to the hearing, the inquirer would have told the father that the father was required to disclose it to the INS. If the father had failed to do so, then the inquirer would have ceased representing him. However, because the inquirer did not know of the father's failure to disclose his prior arrest until after the hearing, the inquirer has sought guidance from the Committee on whether or not the inquirer has a duty disclose the father's prior arrest to the INS.
The relevant Rules of Professional Conduct are Rules 1.6 and, if the INS is considered a tribunal, Rule 3.3 or 3.9, and if the INS is not considered to be a tribunal, Rule 4.1. Either way the answer is the same - disclosure is required.
Rule 1.6 provides that:
(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).
(b) A lawyer shall reveal such information if necessary to comply with the duties stated in Rule 3.3.
(c) A lawyer may reveal such information to the extent that the lawyer reasonably believes necessary:
(1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm or substantial injury to the financial interests or property of another;
(2) to prevent or to rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services are being or had been used;
(3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim or disciplinary proceeding against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or
(4) to effectuate the sale of a law practice consistent with Rule 1.17.
(d) The duty not to reveal information relating to representation of a client continues after the client-lawyer relationship has terminated.
Rule 1.6(b) requires that a lawyer reveal information necessary to comply with Rule 3.3.
Rule 3.3, Candor Toward the Tribunal, provides that:
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal;
(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.
(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.
Rule 3.3(a)(4) requires that a lawyer take "reasonable remedial measures" if he finds out that he has offered material evidence that is false. The comment to Rule 3.3 states that, upon finding out that material evidence is false, the lawyer should try to persuade the client to disclose to the tribunal that the evidence offered was false. If the lawyer's attempts to persuade the client are unsuccessful, then the lawyer must disclose the client's deception to the tribunal.
Rule 3.9, Advocate in Nonadjudicative Proceedings, provides that:
A lawyer representing a client before a legislative or administrative tribunal in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3(a) through (c), 3.4(a) and (b), and 3.5.
Thus, the requirements of Rule 3.3(a)(4) are equally applicable to a lawyer representing a client before a legislative or administrative tribunal as they are to a lawyer representing a client in a court.
It is not entirely clear whether the INS "hearing" at which you represented the family would be considered a tribunal for purposes of Rules 3.3 or 3.9. If the forum would not be considered a tribunal, then neither Rule 3.3 nor Rule 3.9 would apply. The applicable Rule of Professional Conduct would be 4.1, Truthfulness in Statements to Others. The result, however, would be the same.
Rule 4.1 provides that:
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid aiding and abetting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
Failing to disclose the fact that the father was arrested (a material fact) does aid a fraudulent act by your client. Section 145A of the Immigration Reform and Control Act of 1986 provides that:
Whoever files an application for adjustment of status under this section and knowingly and willfully falsifies, misrepresents, conceals, or covers up a material fact or makes any false, fictitious, or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry, shall be fined in accordance with Title 18, United States Code, or imprisoned not more than five years, or both.
This makes it clear that the nondisclosure by your client is a fraudulent act. Therefore, under Rule 4.1(b), you must disclose the material fact of the arrest "unless disclosure is prohibited by Rule 1.6."
Rule 1.6(c)(2) provides that a lawyer may reveal information relating to the representation of a client "to the extent that the lawyer reasonably believes necessary to prevent or to rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services are being or had been used." Thus, the disclosure required by Rule 4.1(b) is not prohibited by Rule 1.6.
It is the opinion of the Committee, therefore, that the prior arrest of the father must be disclosed to the INS. You should discuss this matter with your client, advising him that the arrest must be disclosed. Inform the INS that your client came to you soon after the hearing. If it is accurate, explain that your client realized that he had neglected to provide full information, that he regretted the oversight, that he came to you for advice as to what to do about it, and has worked with you to correct the record now. Explain that you have sought advice on your and your client's obligations, and are therefore now disclosing the existence of the prior arrest.