Comments . Several commenters suggested that an immediate suspension provision could create an unfair and prejudicial result based on “a skeletal complaint filed by a disgruntled client.” The commenters expressed concern that a practitioner could be suspended based on mere allegations of misconduct. This presumption is incorrect, as explained below. Others felt that a criminal conviction or state bar disciplinary action should be “final” before an administrative decision is rendered; otherwise “a practitioner will h ave been deprived of his or her livelihood during that period” should the conviction or disciplinary action be overturned or vacated.

    Response : The disciplinary rule provides that a practitioner may be subject to immediate suspension and a summary proceeding based only upon either (i) disbarment, suspension, or resignation with an admission of misconduct as found by a state or Federal court or (ii) a conviction for a serious crime. The language in this provision is similar to that found in the Rules for Disciplinary Enforcement for the United States Court of Appeals for the District of Columbia Circuit, the District of Columbia Court of Appeals’ Rules Governing the Bar, and the California Rules of Professional Conduct.

    The immediate suspension provision, therefore, is designed to protect the public from practitioners who have a criminal conviction, are no longer in “good standing” as set forth in 8 CFR 1.1(f), or who have otherwise forfeited or encumbered their law license. Such misconduct does not arise from “a skeletal complaint filed by a disgruntled client.” Rather, based upon facts proven by the requisite high standard of proof (“clear and convincing evidence” in most disciplinary matters and “beyond a reasonable dou bt” in criminal matters) and applicable law, a state or Federal court has already made a determination that the practitioner has engaged in serious misconduct. As amplified in the final rule, such a determination, as evidenced by a certified copy of a court record or order, brings “title deeds of high respect” and must be accorded great deference.

    Furthermore, a rule that would permit a practitioner who has been criminally convicted of a serious crime to continue to practice before the Board, the Immigration Courts, or the Service pending all appeals of the underlying matter would expose the court's proceedings to the intervention of disqualified, unfit practitioners and subject clients to unnecessary risk. However, recognizing that a practitioner may seek to appeal such a conviction during the period of his immediate suspension, the rule has been am ended so that no final administrative disciplinary order may be entered until all direct appeals of the underlying conviction have been exhausted. Additionally, the final rule provides that the Board may set aside an immediate suspension order “when it appears in the interest of justice to do so.”

    The final rule provides an attorney with an opportunity to rebut the presumed validity of the underlying disciplinary order in a summary proceeding by demonstrating that: (1) The underlying disciplinary proceeding was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; (2) there was such an infirmity of proof establishing the attorney's professional misconduct as to give rise to the clear conviction that the adjudicating official could not, consistent with his or h er duty, accept as final the conclusion on that subject; or (3) the imposition of discipline by the adjudicating official would result in grave injustice. The proposed rule denied an attorney admitted in only one jurisdiction the opportunity to rebut the presumption of professional misconduct. This provision has been eliminated in the final rule. This procedure comports in part with, among other jurisdictions, the United States Supreme Court's practice in imposing reciprocal discipline.

    Additionally, the proposed rule made the rebuttable presumption safeguards available to practitioners in summary proceedings premised on either reciprocal discipline for professional misconduct or conviction of a serious crime. However, consistent with the practice of state bars, we have limited the rebuttable presumption safeguards so that they apply in reciprocal discipline matters only, rather than extend them to criminal conviction matters, and amended the rule accordingly. Thus, upon filing a certified copy of a court record evidencing a criminal conviction in a summary proceeding based thereon, the only issue to be determined shall be the nature of the discipline to be imposed. Under the final rule, absent extraordinary circumstances, practitioners will be prevented from launching collateral attacks on criminal convictions in a summary proceeding.

Section 3.102--Grounds

    General Comments . Several commenters suggested that the rules for sanctions are too vague and do not contain the level of detail, specificity, and explanation provided by the American Bar Association Model Rules of Professional Conduct (ABA Model Rules). However, others agreed that since the rule closely tracks the ABA Model Rules and that those rules are undergoing revision, this Federal rule should undergo the same revision. Still other commenters suggested that EOIR and the Service use the IRS disciplinary rules as a gu ide.

    Commenters suggested that the rule be expanded to allow for disciplining lawyers who assist in the unauthorized practice of law, e.g., attorneys who sign their names to forms prepared by non-lawyers without any attorney input or oversight. Some commenters went on to suggest that the rule should reach beyond disciplining lawyers only and expand to discipline visa consultants and notarios who engage in the unauthorized practice of immigration law, such that any fee collected by a notario would be considered “ excessively gross” and any application, petition, or brief prepared by a notario would be considered negligence per se.

    Response . As stated in the supplementary information to the proposed rule, the revised grounds for disciplinary sanctions include language, wherever possible, that is similar, if not identical to, the ABA Model Rules. EOIR and the Service gave serious consideration to the suggestion that a ground for disciplinary sanctions that addresses the problem of the unauthorized practice of law be included in the final rule. The difficulty in addressing this problem involves a jurisdictional issue. The jurisdiction of this r ule is limited to practitioners, i.e., attorneys, accredited representatives, and other persons described in 8 CFR 292.1(a). It cannot reach to persons who are not within one of these categories, such as visa consultants or notarios, because the statutory language at 8 U.S.C. 1362, which establishes the framework for the attorney discipline process, refers only to counsel “authorized to practice in (removal and appeal) proceedings.” However, in response to the comments, EOIR and the Service have added an additional ground for discipline in the final rule which renders a practitioner subject to discipline if he or she assists a non-practitioner in the performance of any activity that constitutes the unauthorized practice of law.

Section 3.102(a)--Grossly Excessive Fees

    Comments . Many commenters expressed concerns that EOIR and the Service would be “second-guessing the amount of work attorneys dedicate to their cases or the fees they charge.” They stated that fees depend on many subjective factors and further concluded that only private practitioners have the experience to know how to appropriately set fees. Other commenters pointed out that since fees are negotiated with a client up front, the client has the option to go to a different attorney if he or she finds that the fees are too high. Some commenters noted that making a determination of what is “grossly excessive” will require probing into confidential client information, while others inquired as to how much weight will be given to the different factors used in determining what is “grossly excessive.” While some commenters concluded that state bar associations generally do not involve themselves in financial arrangements between lawyers and clients, others suggested that federal regulation is unnecessary because state bar associations can review fee disputes. Still others suggested this was a means by which EOIR and the Service would punish a practitioner who has been successful in defending an immigration client.

    Response . It is important to note that the primary purpose of this provision is to protect clients, not to interfere with attorney-client fee arrangements. The “grossly excessive fees” standard, which exists in the current rule and was retained in the proposed rule, is higher than the “reasonable fees” measure set out under the ABA Model Rules. The “grossly excessive” standard is similar to the “unconscionable” standard used by the IRS in its regulations. See 31 CFR 10.28.

    Unlike the general provision in the existing regulation, the provision in the final rule enumerates factors to be considered in determining if a fee is grossly excessive that are virtually identical to those found in the ABA Model Rules. These factors include: The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the practitioner; the fee customarily charged in the locality for similar legal services; the amount involved and the results obtained; the time limitations imposed by the client or by the circumstances; the nature and length of the professional relationship with the client; and the experience, reputation, and ability of the practitioner or practitioners performing the services. As other jurisdictions have done, a balancing test may be crafted based upon the various factors in deciding whether a practitioner has violated the rule. These factors will improve the fair assessment of fees by providing practitioners with notice of the variables to be used in determining if a fee is grossly excessive. Investigating allegations of grossly excessive fees may require probing into confidential client information where absolutely necessary, and then only with the client’s permission.

    It is important to note that this rule is not designed to set fee schedules or arbitrate fee disputes between practitioners and their clients. Neither EOIR nor the Service intends to engage in “second-guessing” negotiated fee arrangements. Expert jurists in immigration law who command higher fees for their services than other immigration practitioners would not be in violation of the regulations based solely on their fee. However, we are aware of instances in which practitioners have preyed on unsuspecting clients by charging them exorbitant fees for handling relatively routine immigration matters, or worse yet, have charged clients for services that were never rendered at all. Protecting clients from practitioners who charge such grossly excessive fees is the purpose of this provision.

Section 3.102(b)--Bribes

    Comment . One commenter suggested that expanding the rule to include “attempt to bribe” as well as bribery was unnecessary and that proving “attempt to bribe” would be difficult and should not be included in the rule.

    Response . This basic language is in the current rule. Moreover, it would be inadvisable to limit this rule to only those persons who successfully bribe an individual, but not include those who engage in conduct that constitutes an attempt to bribe. The act of attempted bribery is as serious as the act of bribery itself and certainly compromises the integrity of the practitioner who engages in such behavior. Therefore, we did not adopt this suggestion. It should be noted that the SSA regulations also have a similar provision which prohibits any “attempt to influence, directly or indirectly, the outcome of a decision, determination or other administrative action by offering or granting a loan, gift, entertainment or anything of value to a presiding official, Agency employee or witness who is or may reasonably be expected to be involved in the administrative decisionmaking process.” 20 CFR 404.1740(c)(6).

Section 3.102(c)--False Statements and Willful Misrepresentation

    Comments . Several commenters stated that this provision is too vague and that the Department should provide more guidance. Another commenter suggested that a ground for discipline should be included to deal with preparation of documents, pleadings, papers, etc., that are false and misleading and are prepared by attorneys who fail to disclose their names and addresses as preparers.

    Response . The language in this provision closely resembles the language in the current regulation, combined with language from ABA Model Rule 3.3. The language in the rule would not preclude pursuing a practitioner who prepares false or misleading unsigned documents, although the ability to prove who prepared such documents might be difficult. Immigration Judges across the country have indicated that the filing of false or fraudulent documents is a growing problem. This problem includes the submission of once valid documents that have been altered (e.g., foreign birth certificates), falsely created documents (e.g., visas or letters from religious or political groups), and valid documents that contain false information (e.g., asylum applications). This provision as written is broad enough to deal with these types of fraud. It should be noted that the SSA regulations have a similar provision which states that an individual may not “(k)nowingly make or present, or participate in the making or presentation of, false or misleading oral or written statements, assertions, or representations about a material fact or law.” 20 CFR 404.1740(c)(3).

Section 3.102(d)--Soliciting Professional Employment

    Comment . One commenter suggested that the language in the rule concerning solicitation may conflict with state bar solicitation regulations already in place, creating difficulties for practitioners who may wish to advertise in more than one area.

    Response . The language in this provision closely resembles the language in ABA Model Rule 7.3 and in the IRS regulations at 31 CFR 10.30. This provision is designed to deal with a growing number of instances that have been brought to our attention concerning the use of “runners” in and around the Immigration Courts. These persons are not authorized to practice immigration law themselves but approach potential clients on behalf of individuals who are licensed professionals. As noted in the Comment to ABA Model Rule 7.3:

    “There is a potential for abuse inherent in direct in-person or live telephone contact by a lawyer with a prospective client known to need legal services. These forms of contact between lawyer and a prospective client subject the layperson to the private importuning of the trained advocate in a direct interpersonal encounter. The prospective client, who may already be overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult fully to evaluate all available alternativ es with reasoned judgment and appropriate self-interest in the face of the lawyer's presence and insistence upon being retained immediately. The situation is fraught with the possibility of undue influence, intimidation, and over-reaching.

Model Rules of Professional Conduct Rule 7.3 cmt. (1993).”

Section 3.102(g)--Contumelious or Obnoxious Conduct

    Comments . Many commenters registered their objections to this provision. They argued that subjecting practitioners to discipline based upon the concept of “obnoxious behavior” would result in practitioners being unable to represent or defend their clients zealously and would require them to be subdued or “nice” in order not to offend EOIR or the Service. As one commenter put it: “(O)ne person’s obnoxious behavior is another person’s zealous representation.” Another commenter feared that “(a) practitioner could be disciplined if, in the opinion of the Disciplinary Comm ittee, he talks too fast or too slow, uses his hands too much when speaking, or has some nervous habit.”

    Still another commenter concluded that the threat of discipline based on this ground would impair the attorney/client relationship because practitioners would be afraid to advocate zealously on behalf of their clients for fear that such representation would be perceived as obnoxious. Some commenters suggested that it would be impossible for EOIR and the Service to apply this rule in a consistent and fair manner, while others noted that state bars already deal with “contumelious” or “obnoxious” conduct of pr actitioners. Several commenters concluded that such a disciplinary ground would lead to frivolous complaints and unnecessary litigation.

    Response : Nothing in this provision is intended to impinge upon a practitioner’s zealous representation of his or her client. However, even zealous representation does not entitle a practitioner to engage in contumelious or obnoxious conduct. Any suggestion that this provision will be used, as one commenter suggests, if a practitioner “talks too fast or too slow, uses his hands too much when speaking, or has some nervous habit” is without basis. Behavior disciplined under this provision will be necessarily extreme and without any acceptable premise.

    This provision is in the current rule and is retained in the final rule. This provision is included primarily to address the type of conduct that would rise to the level of contempt in a court of general jurisdiction. IRS regulations contain a similar provision for contemptuous conduct. See 31 CFR 10.51(i). Until recently, Immigration Judges have not had the authority to issue contempt citations for the type of behavior described in this provision. The only alternative for a judge was to file a disciplinary complaint with the Service. Immigration Judges were recently given contempt authority in section 304 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208 (IIRIRA), 8 U.S.C. 1229a(b)(1); however, this authority will be exercised only after the Department issues regulations. It is expected that the contempt regulations, once published, will provide that a practitioner can be disciplined under the Professional Conduct Rules when the practitioner has been sanctioned for c ontemptuous conduct by an Immigration Judge pursuant to 8 U.S.C. 1229a(b)(1). A finding of contempt will become a prerequisite to the imposition of disciplinary action pursuant to this subsection. Therefore, the current language will be retained in the final rule, pending amendment by the contempt regulations, which will be published in the near future.

Section 3.102(h)--Convictions/Crimes

    Comments . Some commenters found the definition of “serious crime” to be overly broad. While some commenters argued that a practitioner might lose his or her livelihood for committing a minor offense, others concluded that the conviction that forms the basis for disciplinary action might have no bearing on the practitioner’s ability to practice immigration law. Several commenters found the retroactivity aspect of this provision to be unfair, as well as the notion that a practitioner who has filed a timely appeal fro m a criminal conviction or state disciplinary finding would still be subject to discipline under the rule. Several commenters pointed out that practitioners in each state will be held to different standards of conduct because the definitions of crimes vary from state to state.

    Response: The definition of “serious crime” is taken from the Rules of Disciplinary Enforcement for the United States Court of Appeals for the District of Columbia. A “serious crime” as defined in the rule includes “any felony.” Any practitioner who has been convicted of a felony has seriously undermined his professional integrity and reputation and, as a result, has jeopardized his ability to continue to represent aliens before the Board, the Immigration Courts, and the Service. Lesser offenses included within the d efinition of a “serious crime” are offenses that involve moral turpitude, such as fraud, bribery, extortion, deceit, theft, misappropriation, and false swearing. A conviction for any of these crimes calls into question a practitioner’s ability to perform his or her duties in a manner which upholds the integrity of the profession.

    Moreover, the magnitude of interests to be affected by the decisions of EOIR and/or the Service requires that those who represent individuals before either agency be persons whose qualities as practitioners will secure proper service to their clients and assist in the discharge of important agency duties. Additionally, there is no requirement in the authorities or by practice that an incident for which the disciplinary authority seeks to bring charges must relate to a proceeding or pending proceedings.

    One commenter noted that the regulation requiring a practitioner to notify EOIR of any conviction for a serious crime is prospective while the actual ground for disciplinary action based on a conviction for a serious crime may be retroactive. Convictions for serious crimes--whether they occur before or after the effective date of the final rule--call into question a practitioner's fitness to represent aliens. A rule that would limit the criminal conviction ground to only those practitioners convicted after the effective date of the rule would substantially hamper the Department’s goals of protecting the public and preserving the integrity of immigration proceedings. Therefore, § 3.102(h), which is consistent with the prior rule, has not been amended because applying this section only to convictions that occur after the effective date of the rule would undermine the Department’s goals.

    Several commenters raised a question with regard to the practitioner who has appealed his or her conviction, stating that such a person should not be subject to discipline during pendency of an appeal. We agree. Therefore, we have added language in § 3.103(b) and 292.3(c)(2) that prevents imposition of final discipline arising out of a criminal conviction until direct appeals of the underlying conviction have been exhausted. Notwithstanding, we note that given the grave nature of criminal proceedings and an y resulting conviction or plea, a practitioner may be subject to an interim order of suspension under the regulations pending the outcome of any such appeal.

    Once again, the primary objective of this rule is to protect the public and preserve the integrity of adjudicative immigration processes. Any practitioner who has been convicted of a serious crime should be held accountable for his or her actions, including loss of the privilege to practice before the Board, the Immigration Courts, and the Service.