The sanctity of communications between lawyer and client, historically highly protected, could become a victim of the state’s recently passed illegal-immigration law.
In an email distributed Monday to members of the Morgan County Bar Association, lawyers were advised that they should “cautiously err on the side of disclosure” if asked by investigators to divulge information provided by clients who are undocumented immigrants.
The dilemma for lawyers comes from Sections 5 and 6 of the law, which make it a crime for an “officer of the court” to adopt a practice “that limits or restricts the enforcement of federal immigration laws by limiting communication” with immigration officials.
State statutes, case law and the ethical code applicable to lawyers define “officers of the court” to include lawyers.
The law authorizes any U.S. citizen to file a civil claim against an officer of the court who violates the section, and creates a penalty of between $1,000 and $5,000 for each day of violation.
Decatur lawyer Eric Summerford wrote the opinion recommending lawyers disclose such information after consulting with the Alabama Bar Association’s Office of General Counsel. The issue came up, Summerford said, during a continuing legal education seminar in Decatur.
“I called (the Office of General Counsel) about the ethical problem,” Summerford said. “If we tried not to run afoul of the law, would we be committing an ethical violation for which we could be brought before the bar for sanctions?”
The answer Summerford received, he said, was that the office “could not imagine the bar trying to go after a lawyer for complying with the requirements of the law.”
Summerford said it remains unclear whether state or federal investigators will seek such previously confidential client information.
“I think we’ve got to err on the side of giving the information, as much as I hate to say it,” Summerford said.
The attorney gave an example of a situation in which he suspects lawyers would have to disclose client confidences.
“Let’s say you have a client, Mr. A, who had given you his address and someone realizes you represent him,” Summerford said. “You have an investigator show up at your door wanting Mr. A’s address from you.
“Under normal circumstances I wouldn’t give them anything about a client: It’s privileged and confidential. But in this situation, it seems to me this law may impose a duty on the lawyer to give that information.”
Summerford said ethical rules contained in the Alabama Rules of Professional Conduct and the legal mandates of the immigration law are in conflict, so reassurance that the state bar association was unlikely to pursue ethical sanctions against a lawyer for following the law was important to lawyers.
The ethical rules generally prohibit lawyers from disclosing client information except “to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm.”
Summerford said he believes the law imposes a duty on lawyers to ask clients about their immigration status and to report their findings to a judge.
“I hate that it’s come to that, but I don’t see any way around it,” Summerford said.
“It puts certain clients we have in very difficult situations. It’s got me very concerned.”
Assistant General Counsel Jeremy McIntire of the state bar association, the state bar official with whom Summerford consulted, did not return calls. General Counsel Tony McLain said it was premature for him to discuss the issue with the media, since a court challenge is pending on the immigration law.
Allen Stoner, a Decatur lawyer who represents many immigrants seeking citizenship, said the law creates an obstacle to the attorney-client privilege.
“This directly confronts attorneys and their clients’ rights to confidentiality,” Stoner said. “It’s another example of how the law was either poorly thought out or they just didn’t care, because their intent was just to run everybody out.”
Stoner said he would be surprised if prosecutors pursued confidential information from lawyers, despite the language of the new law.
“I wonder if (state) Attorney General Luther Strange really wants to take on the bar or attorneys,” Stoner said. “I doubt he wants to pick this fight.”
A federal district court in Birmingham and a federal appeals court in Atlanta have temporarily blocked portions of the law, but have let stand Sections 5 and 6.
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