Executive Office for Immigration Review; Professional Conduct for PractitionersRules and Procedures

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 3 and 292

[EOIR No. 112P; A.G. ORDER No. 2138-98]

RIN 1125-AA13

Executive Office for Immigration Review; Professional Conduct for

Practitioners--Rules and Procedures

AGENCY: Immigration and Naturalization Service and the Executive Office

for Immigration Review, Justice.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This rule proposes to change the rules and procedures

concerning professional conduct for practitioners, which includes

attorneys and representatives, who practice before the Executive Office

for Immigration Review (EOIR), which includes the Board of Immigration

Appeals (the Board) and the Immigration Courts, as well as the rules

and procedures concerning professional conduct for practitioners who

practice before the Immigration and Naturalization Service (the

Service). This rule also includes a provision pursuant to section 545

of the Immigration Act of 1990, concerning sanctions against attorneys

or representatives who engage in frivolous behavior in immigration

proceedings. This rule outlines the authority EOIR has to investigate

and impose disciplinary sanctions against practitioners who practice

before its tribunals, and clarifies the authority of the Service to

investigate complaints regarding practitioners who practice before the

Service. The procedures by which disciplinary proceedings may be

initiated before EOIR against practitioners who appear before the

Service are also outlined. This proposed rule will allow EOIR and the

Service to investigate, present, and complete disciplinary proceedings

more effectively and efficiently while ensuring the due process rights

of the practitioner. This proposed rule will allow frivolous claims to

be resolved and meritorious cases to be completed quickly and without

unnecessary delay, since the need for expeditious resolution of these

cases is critical to and in the best interests of all parties involved.

DATES: Written comments must be received on or before March 23, 1998.

ADDRESSES: Please submit written comments to both Margaret M. Philbin,

General Counsel, Executive Office for Immigration Review, 5107 Leesburg

Pike, Suite 2400, Falls Church, Virginia, 22041 and Janice B. Podolny,

Associate General Counsel, Immigration and Naturalization Service, 425

I Street, NW., Room 6100, Washington, DC 20536.

FOR FURTHER INFORMATION CONTACT:

Margaret M. Philbin, General Counsel, Executive Office for Immigration

Review, 5107 Leesburg Pike, Suite 2400, Falls Church, Virginia 22041,

telephone (703) 305-0470, or Janice B. Podolny, Associate General

Counsel, Immigration and Naturalization Service, 425 I Street, NW, Room

6100, Washington, DC 20536, telephone (202) 514-2895.

SUPPLEMENTARY INFORMATION: This rule proposes to amend 8 CFR parts 3

and 292 by changing the present rules and procedures concerning

professional conduct for practitioners, which includes attorneys and

representatives, who practice before the Executive Office for

Immigration Review (EOIR ), which includes the Board of Immigration

Appeals (the Board) and the Immigration Courts. Currently, the

regulations at 8 CFR 292.3 require the Immigration and Naturalization

Service (the Service) to investigate complaints filed regarding the

conduct of attorneys and representatives practicing before both the

Service and EOIR. If the investigation establishes, to the satisfaction

of the Service, that disciplinary proceedings should be instituted, the

General Counsel of the Service serves a copy of the written charges

upon the attorney or representative and upon the Office of the Chief

Immigration Judge. The present procedure provides for the government to

be represented by a Service attorney in disciplinary proceedings before

an Immigration Judge. The decision of the Immigration Judge may be

appealed to the Board by either party.

This proposed rule includes several major changes to the current

regulation. First, it separates and distinguishes the investigation of

complaints and the disciplinary proceedings involving attorneys and

representatives practicing before EOIR from the investigation of

complaints and the disciplinary proceedings involving attorneys and

representatives practicing before the Service. Under the proposed rule,

the Office of the General Counsel of EOIR will accept complaints made

against attorneys or representatives (referred to as ``practitioners'')

who appear before the Board, the Immigration Courts, or both. The

Office of the General Counsel of the Service will accept complaints

made against practitioners who appear before the Service. The Office of

the General Counsel that receives the complaint will conduct a

preliminary inquiry. If the Office of the General Counsel of EOIR or

the Service determines that a complaint is without merit, no further

action will be taken. If the Office of the General Counsel of EOIR or

the Service determines, by a preponderance of the evidence, that a

practitioner has engaged in professional misconduct as set forth in the

rule, it will issue a Notice of Intent to Discipline to the

practitioner named in the complaint. When making a decision as to

whether a Notice of Intent to Discipline should be issued, the Office

of the General Counsel of EOIR or the Service will consider the

contents of the complaint (including the nature and recency of the

conduct or behavior of the practitioner and the harm or damages

sustained by the complainant), the results of the preliminary inquiry,

and other relevant information. The practitioner will have an

opportunity to file an answer and request a hearing.

Second, the proposed rule establishes a new disciplinary process

for the adjudication of all complaints. Upon the filing of an answer by

the practitioner, the Director of EOIR will appoint an adjudicating

official and, if a hearing is requested, will designate the time and

place of the hearing. Failure to file an answer in a timely manner will

be deemed an admission to the factual allegations set forth in the

Notice of Intent to Discipline. The recommended disciplinary sanctions

in the Notice of Intent to Discipline then will become final, unless a

motion to set aside the final order is granted. The Office of the

[[Page 2902]]

General Counsel of EOIR will represent the government in the hearing,

unless the proceeding is initiated by the Service, in which case the

Office of the General Counsel of the Service will represent the

government. The practitioner may be represented by counsel of his or

her own choice at no expense to the government. The adjudicating

official will hold a hearing, take testimony, examine witnesses, and

will report his or her findings and recommendations to the Disciplinary

Committee. The Disciplinary Committee will be a three-member panel

appointed by the Deputy Attorney General, with at least one Committee

member from EOIR. The Deputy Attorney General will designate one

Committee member to serve as Chairperson. The Disciplinary Committee

may adopt, modify, or otherwise amend the recommended disciplinary

sanctions and issue a final order which may apply to practice before

the Board and the Immigration Courts or the Service, or before all

three authorities. There is no administrative appeal from the order of

the Disciplinary Committee. A practitioner who wishes to obtain a

judicial review of a decision of the Disciplinary Committee can do so

in federal district court pursuant to 28 U.S.C. 1331.

Third, the proposed rule includes a reinstatement procedure, which

will permit a practitioner to petition for his or her reinstatement if

he or she has been expelled or, in the case of a suspension, if the

period of suspension has not yet expired.

Fourth, the proposed rule revises and restates the grounds for

disciplinary sanctions, which will be reduced from fifteen to twelve by

combining several previous grounds, eliminating several others, and

adding two new grounds. Ten of the grounds for disciplinary sanctions

will apply to all practitioners appearing before the Board, the

Immigration Courts, and the Service, while the two additional grounds

will only apply to practitioners appearing before the Board and the

Immigration Courts. Wherever possible, the grounds have been revised to

include language that is similar, if not identical, to language found

in the American Bar Association Model Rules of Professional Conduct

(1995). EOIR has made these revisions in order to provide practitioners

with a set of disciplinary standards that are widely known and accepted

within the legal profession.

For example, one of the grounds for disciplinary sanctions

prohibits the charging of grossly excessive fees. This ground has been

expanded in the proposed rule to include a number of factors to be

considered in determining whether a fee is grossly excessive, such as

the time and labor required, the fee customarily charged in the

locality for similar legal services, and the experience and ability of

the attorney. The disciplinary ground banning the solicitation of

professional employment has been revised to permit a practitioner to

solicit professional employment from a prospective client known to be

in need of legal services in a particular matter with certain

restrictions. If the practitioner has no family or prior professional

relationship with the prospective client, the practitioner must include

the words ``Advertising Material'' on the outside of the envelope of

any written communication and at the beginning and ending of any

recorded communication. This change is made in light of the United

States Supreme Court decision in Shapero v. Kentucky, 486 U.S. 466

(1988), in which the Court held that legal advertising, in the form of

targeted, direct-mail solicitation, is a form of commercial speech

protected by the First Amendment but subject to regulation, such as the

requirement that a solicitation letter bear a label identifying it as

an advertisement. Shapero, 486 U.S. at 477. The disciplinary ground

regarding false or misleading communications about a practitioner's

qualifications now includes a prohibition against a practitioner's use

of the term ``certified specialist'' in immigration and/or nationality

law, unless the practitioner has been granted such certification by the

appropriate state regulatory authority or by an organization that has

been approved by the appropriate state regulatory authority to grant

such certifications. This amendment is included in order to ensure the

public that a practitioner who holds himself or herself out as a

certified specialist does so only after demonstrating proficiency in

immigration and/or nationality law, and to prevent false, deceptive, or

misleading advertising.

One of the two new grounds for disciplinary sanctions concerns

conduct by a practitioner that constitutes ineffective assistance of

counsel as previously determined in a finding by the Board or an

Immigration Judge in an immigration proceeding. A practitioner who is

the subject of an ineffective assistance of counsel claim heretofore

has been able to plead mea culpa when an alien raises the issue on a

motion to reopen with the Board or an Immigration Judge without any

disciplinary consequences from his or her admissions. In addition, a

practitioner who is consistently accused of providing ineffective

assistance of counsel has not experienced any ramifications from such

repeated claims before the Board or an Immigration Judge. By adding

this ground to the disciplinary standard, practitioners now may face

the consequences of claims of ineffective assistance of counsel from

former clients.

A factual finding of ineffective assistance of counsel in an

immigration proceeding will be necessary in order to support the

issuance of a Notice of Intent to Discipline for this ground. A mere

grant of a motion to reopen based on a claim of ineffective assistance

of counsel, absent a specific factual finding of ineffective assistance

of counsel, will not support the issuance of a Notice of Intent to

Discipline.

Federal caselaw has repeatedly addressed the standards to be used

in determining whether an alien has been the victim of ineffective

assistance of counsel. Thus, in order for an alien to prevail on a

claim of ineffective assistance of counsel, he or she must show that

his or her counsel's performance was so ineffective as to have impinged

upon the fundamental fairness of the hearing in violation of the fifth

amendment due process clause. Rabiu v. INS, 41 F.3d 879, 882 (2d Cir.

1994). See also Lopez v. INS, 775 F.2d 1015, 1017 (9th Cir. 1985)

(ineffective assistance of counsel is denial of due process only if

proceeding was so fundamentally unfair that alien was prevented from

reasonably presenting his case); Paul v. INS, 521 F.2d 194, 199 (5th

Cir. 1975) (alien must present sufficient facts to allow court to infer

that competent counsel would have acted otherwise).

Situations may arise where the Board or the Immigration Judge makes

a factual finding of ineffective assistance of counsel in an

immigration proceeding but the adjudicating official in the

disciplinary proceeding recommends that no disciplinary action be

imposed upon the practitioner. Since the practitioner in question is

not a party to an alien's motion to reopen on the basis of ineffective

assistance of counsel and may not have presented any evidence in his or

her defense with regard to this issue, the adjudicating official in the

disciplinary proceeding, upon further development of the facts, may

determine, notwithstanding the finding of the Immigration Judge or the

Board, that the attorney's conduct does not rise to a level for which

disciplinary sanctions should be imposed. Such a ruling is subject to

review by the Disciplinary Committee, which will then issue a final

decision in the matter.

[[Page 2903]]

Fifth, the proposed rule contains a provision that allows for the

immediate suspension of any practitioner who has been convicted of a

serious crime, or any practitioner who has been disbarred or is

currently under suspension or resignation with an admission of

misconduct by the bar of any state, possession, territory,

commonwealth, or the District of Columbus, or by any Federal court.

Such immediate suspension may be imposed upon the practitioner while

any appeal from the underlying conviction or discipline is pending and

will continue until such time as a final administrative decision is

made by the Disciplinary Committee. If a final administrative decision

includes the imposition of a period of suspension, any time spent by

the practitioner under immediate suspension will be credited toward the

period suspension imposed by the final administrative decision. This

provision will enable EOIR and the Service to take immediate action

against such practitioners and will provide a certain degree of

protection to those individuals most likely to be affected by the

practitioner's misconduct.

For those practitioners who are immediately suspended, the proposed

rule allows for the initiation of a summary disciplinary proceeding.

Such a proceeding will be conducted in a manner similar to the standard

disciplinary proceeding set forth in this rule, except that a certified

copy of a judgment of conviction or judgment or order of discipline

shall serve as a rebuttable presumption of the commission of the crime

or the professional misconduct, and the burden of proof shall be upon

the practitioner to show cause why the proposed disciplinary sanctions

should not be imposed. This summary proceeding will enable EOIR and the

Service to expeditiously bring disciplinary proceedings against

practitioners who have engaged in criminal or unethical conduct while

providing an opportunity for the practitioner to challenge the

disciplinary charges and proposed sanctions.

Finally, the proposed rule contains a provision that addresses the

issue of confidentiality with regard to complaints, preliminary

inquiries, settlement agreements, and disciplinary proceedings. The

provision provides that information concerning complaints or

preliminary inquiries will be confidential unless a waiver is made, but

in certain circumstances a waiver is not required before information

can be disclosed. Resolutions, such as warning letters, admonitions,

and agreements in lieu of discipline reached prior to the issuance of a

Notice of Intent to Discipline will remain confidential. Notices of

Intent to Discipline and action taken subsequent thereto, including

settlement agreements, may be disclosed to the public. Disciplinary

hearings will also be open to the public. This provision will

adequately protect practitioners who may be the subject of a complaint

or preliminary inquiry and also will maintain the integrity and

credibility of the disciplinary process by keeping the sytem open to

the public.

This proposed rule will allow EOIR and the Service to investigate,

present, and complete disciplinary proceedings more effectively and

efficiently while ensuring the due process rights of the practitioner.

This proposed rule will allow frivolous claims to be resolved and

meritorious cases to be completed quickly and without unnecessary delay

because the need for expeditious resolution of these cases is critical

to and in the best interests of all parties involved. EOIR and the

Service recognize that the primary purposes of disciplinary

proceedings, and any sanctions that are imposed as a result of such

proceedings, include the protection of the public, the preservation of

the integrity of the immigration courts and the legal profession, and

the maintenance of high professional standards by practitioners.

The proposed rule regarding the authority of EOIR to investigate

complaints and to conduct disciplinary proceedings has been placed in 8

CFR part 3 for several reasons: (1) To highlight the independence of

EOIR from the Service; (2) to provide EOIR with the ability to police

its own tribunals and the persons who come before them; and (3) to

provide a more efficient and effective disciplinary system. The

proposed rule and the amendments to 8 CFR part 292 clarify the

authority of the Service to investigate complaints regarding attorneys

and representatives who practice before the Service and outline the

procedures by which disciplinary proceedings may be initiated before

EOIR against practitioners who appear before the Service. Once the

Service decides to issue a Notice of Intent to Discipline, the

complaint will be heard and decided under the same procedures used for

disciplinary actions initiated by the Office of the General Counsel of

EOIR. Moreover, the rule also provides for notice of the initiation of

disciplinary actions and coordination of disciplinary sanctions

regarding the Service as well as the Board and the Immigration Courts.

Regulatory Flexibility Act

In accordance with 5 U.S.C. 605(b), the Attorney General certifies

that this rule affects only those practitioners who practice

immigration law before EOIR and the Service. Approximately 5000

immigration attorneys and 400 accredited representatives will be

subject to this rule. This rule will not have a significant adverse

economic impact on a substantial number of small entities because the

rule is similar in substance to the existing regulatory process and

will only affect those practitioners who have committed serious crimes

or who have lost their license to practice law or otherwise engaged in

professional misconduct. Therefore, this rule does not have a

significant economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local, and

tribal governments, in the aggregate, or by the private sector, of $100

million or more in any one year, and it will not significantly or

uniquely affect small governments. Therefore, no actions were deemed

necessary under the provisions of the Unfunded Mandates Reform Act of

1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 804 of the

Small Business Regulatory Enforcement Act of 1996. This rule will not

result in an annual effect on the economy of $100 million or more; a

major increase in costs or prices; or significant adverse effects on

competition, employment, investment, productivity, innovation, or on

the ability of United states-based companies to compete with foreign-

based companies in domestic and export markets.

Executive Order 12866

The Attorney General has determined that this rule is not a

significant regulatory action under Executive Order No. 12866, and

accordingly this rule has not been reviewed by the Office of Management

and Budget.

Executive Order 12612

This rule has no federalism implications warranting the preparation

of a Federalism Assessment in accordance with Executive Order No.

12612.

[[Page 2904]]

Executive Order 12988

The rule meets the applicable standards provided in sections 3 (a)

and 3 (b) (2) of Executive Order No. 12988.

List of Subjects

8 CFR Part 3

Administrative practice and procedure, Immigration, Legal services,

Organizations and functions (Government agencies), Reporting and

recordkeeping requirements.

8 CFR Part 292

Administrative practice and procedure, Immigration, Reporting and

recordkeeping requirements.

For the reasons set forth in the preamble, chapter I of title 8 of

the Code of Federal Regulations is proposed to be amended as follows:

PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

1. The authority citation for part 3 continues to read as follows:

Authority: 5 U.S.C. 301; 8 U.S.C. 1103; 1252 note, 1252b, 1324b,

1362; 28 U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan No. 2 of 1950, 3

CFR, 1949-1953 Comp., p. 1002.

2-3. Section 3.1 is amended by revising the reference to

``Sec. 292.3(a)(15) of this chapter'' in the first sentence of

paragraph (d)(1-a)(ii) to read ``Sec. 3.52(j)'', and by revising

paragraph (d)(3) to read as follows:

Sec. 3.1 General authorities.

* * * * *

(d) * * *

(3) Rules of practice. The board shall have authority, with the

approval of the Director, EOIR, to prescribe rules governing

proceedings before it. It shall also determine whether any organization

desiring representation is of a kind described in Sec. 1.1(j) of this

chapter.

* * * * *

4. Section 3.12 is amended by revising the reference to

``Sec. 292.3 of this chapter'' in the second sentence to read ``part 3

of this chapter''.

5. Subpart D is added to part 3 after Subpart C, to read as

follows:

Subpart D--Professional Conduct for Practitioners--Rules and Procedures

Sec.

3.51 General provisions.

3.52 Grounds.

3.53 Filing of an preliminary inquiry into complaints; resolutions;

referral of complaints.

3.54 Notice of Intent to Discipline.

3.55 Hearing and disposition.

3.56 Reinstatement after expulsion or suspension.

3.57 Confidentiality.

3.58 Discipline of government attorneys.

Subpart D--Professional Conduct for Practitioners--Rules and

Procedures

Authority: 8 U.S.C. 1103, 1252b, 1362.

Sec. 3.51 General provisions.

(a) Disciplinary Committee. The Disciplinary Committee is a three-

member panel appointed by the Deputy Attorney General, with at least

one Committee member from the Executive Office for Immigration Review.

The Deputy Attorney General will designate one Committee member to

serve as Chairperson. A designee appointed by the Deputy Attorney

General may serve as an alternate Disciplinary Committee member when,

in the absence or unavailability of a Disciplinary Committee member or

for other good cause, his or her participation is deemed necessary.

Once designated, his or her participation in a case shall continue to

its normal conclusion.

(b) Authority to sanction. The Disciplinary Committee may impose

disciplinary sanctions against any practitioner if it finds it to be in

the public interest to do so. It will be in the public interest to

impose disciplinary sanctions against a practitioner who is authorized

to practice before the Board of Immigration Appeals (the Board) and the

Immigration Courts when such person has engaged in criminal, unethical,

or unprofessional conduct, or in frivolous behavior, as set forth in

Sec. 3.52. In accordance with the disciplinary proceedings set forth in

this subpart and outlined below, the Disciplinary Committee may impose

any of the following disciplinary sanctions:

(1) Expulsion, which is permanent, from practice before the Board

and the Immigration Courts or the Immigration and Naturalization

Service (the Service), or before all three authorities;

(2) Suspension, including immediate suspension, from practice

before the Board and the Immigration Courts or the Immigration and

Naturalization Service (the Service), or before all three authorities;

(3) Public or private censure; or

(4) Such other disciplinary sanctions as the Disciplinary Committee

deems appropriate.

(c) Persons subject to sanctions. Persons subject to sanctions

include any practitioner. A practitioner is any attorney as defined in

Sec. 1.1(f) of this chapter who does not represent the federal

government, or any representative as defined in Sec. 1.1(j) of this

chapter. Attorneys employed by the Department of Justice shall be

subject to discipline pursuant to Sec. 3.58.

(d) Immediate suspension and summary disciplinary proceedings--(1)

Immediate suspension. The Office of the General Counsel of EOIR may ask

the Disciplinary Committee to immediately suspend from practice before

the Board and the Immigration Courts any practitioner who has been

convicted of a serious crime, as defined in Sec. 3.52(h), or who has

been disbarred or is currently under suspension or resignation with an

admission of misconduct by the bar of any state, possession, territory,

commonwealth, or the District of Columbia, or by any Federal court.

Such immediate suspension may be imposed upon the practitioner while

any appeal from the underlying conviction or discipline is pending and

shall continue until such time as a final administrative decision is

made by the Disciplinary committee. If a final administrative decision

includes the imposition of a period of suspension, any time spent by

the practitioner under immediate suspension pursuant to this paragraph

will be credited toward the period of suspension imposed by the final

administrative decision.

(2) Summary disciplinary proceedings. The Office of the General

Counsel of EOIR may initiate summary disciplinary proceedings against

any practitioner described in paragraph (d)(1) of this section. Summary

proceedings may be initiated by the issuance of a Notice of Intent to

Discipline if accompanied by a certified copy of a judgment of

conviction or a judgment or order of discipline. Summary proceedings

shall be conducted in accordance with the provisions set forth in

Secs. 3.54 and 3.55, except that a certified copy of a judgment of

conviction or judgment or order of discipline shall serve as a

rebuttable presumption of the commission of the crime or the

professional misconduct. The imposition of disciplinary sanctions shall

follow, unless the practitioner can rebut the presumption by

demonstrating that:

(i) The underlying criminal or disciplinary proceeding was so

lacking in notice or opportunity to be heard as to constitute a

deprivation of due process;

(ii) There was such an infirmity of proof establishing the

practitioner's guilt or professional misconduct as to give rise to the

clear conviction that the adjudicating official could not, consistent

with his or her duty, accept as final the conclusion on that subject;

or

[[Page 2905]]

(iii) The imposition of discipline by the adjudicating official

would result in grave injustice.

(3) Ineligibility to rebut the presumption of professional

misconduct. An attorney shall not be eligible to rebut the presumption

of the commission of professional misconduct unless he or she is a

member in good standing of the bar of the highest court of any state,

possession, territory, commonwealth, or the District of Columbia.

(e) Duty of practitioner to notify EOIR of conviction or

discipline. Any practitioner who has been convicted of a serious crime,

as defined in Sec. 3.52(h), or who has been disciplined for

professional misconduct by the bar of any state, possession, territory,

commonwealth, or the District of Columbia, or by a Federal court must

notify the Office of the General Counsel or EOIR of any such conviction

or disciplinary action within 30 days of the issuance of the initial

order, even if an appeal of the conviction or discipline is pending.

Failure to do so may result in immediate suspension as set forth in

paragraph (d)(1) of this section. This duty to notify applies only to

convictions for serious crimes or rulings of professional misconduct

entered after the effective date of this regulation.

Sec. 3.52 Grounds.

It is deemed to be in the public interest for the Disciplinary

Committee to impose disciplinary sanctions against any practitioner who

falls within one or more of the categories enumerated in this section,

but these categories do not constitute the exclusive grounds for which

disciplinary sanctions may be imposed in the public interest. A

practitioner who falls within one of the following categories may be

subject to disciplinary sanctions in the public interest if he or she:

(a) Charges or receives, either directly or indirectly:

(1) In the case of an attorney, any fee or compensation for

specific services rendered for any person that shall be deemed to be

grossly excessive. The factors to be considered in determining whether

a fee or compensation is grossly excessive include the following: 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 attorney; 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 attorney or attorneys

performing the services,

(2) In the case of an accredited representative as defined in

Sec. 292.1(a)(4) of this chapter, any fee or compensation for specific

services rendered for any person, except that an accredited

representative may be regularly compensated by the organization of

which he or she is an accredited representative, or

(3) In the case of a law student or law graduate as defined in

Sec. 292.1(a)(2) of this chapter, any fee or compensation for specific

services rendered for any person, except that a law student or law

graduate may be regularly compensated by the organization or firm with

which he or she is associated as long as he or she is appearing without

direct or indirect remuneration from the client he or she represents;

(b) Bribes, attempts to bribe, coerces, or attempts to coerce, by

any means whatsoever, any person (including a party to a case or an

officer or employee of the Department of Justice) to commit any act or

to refrain from performing any act in connection with any case;

(c) Knowingly makes a false statement of material fact or law to,

or willfully misleads, misinforms, threatens, or deceives any person

(including a party to a case or an officer or employee of the

Department of Justice) concerning any material and relevant matter

relating to a case, including knowingly offering evidence that the

practitioner knows to be false. If a practitioner has offered material

evidence and comes to know of its falsity, the practitioner shall take

appropriate remedial measures;

(d) Solicits professional employment, through in-person or live

telephone contact or through the use of runners, from a prospective

client with whom the practitioner has no family or prior professional

relationship when a significant motive for the practitioner's doing so

is the practitioner's pecuniary gain. If the practitioner has no family

or prior professional relationship with the prospective client known to

be in need of legal services in a particular matter, the practitioner

must include the words ``Advertising Material'' on the outside of the

envelope of any written communication and at the beginning and ending

of any recorded communication. Such advertising material or similar

solicitation documents may not be distributed by any person in or

around the premises of any building in which an Immigration Court is

located;

(e) Is currently subject to a final order of disbarment,

suspension, or resignation with an admission of misconduct

(1) In the jurisdiction of any state, possession, territory,

commonwealth, or the District of Columbia, or in any Federal court in

which the practitioner is admitted to practice, or

(2) Before any executive department, board, commission, or other

governmental unit;

(f) Makes a false or misleading communication about his or her

qualifications or services. A communication is false or misleading if

it:

(1) Contains a material misrepresentation of fact or law, or omits

a fact necessary to make the statement considered as a whole not

materially misleading, or,

(2) Contains an assertion about the practitioner or his or her

qualifications or services that cannot be substantiated. A practitioner

shall not state or imply that he or she has been recognized or

certified as a specialist in immigration and/or nationality law unless

such certification is granted by the appropriate state regulatory

authority or by an organization that has been approved by the

appropriate state regulatory authority to grant such certification;

(g) Engages in contumelious or otherwise obnoxious conduct with

regard to a case in which he or she acts in a representative capacity,

which, in the opinion of the Disciplinary Committee, would constitute

cause for suspension or disbarment if the case were pending before a

court, or which, in such a judicial proceeding, would constitute a

contempt of court;

(h) Has been convicted in any court of the United States, or of any

state, possession, territory, commonwealth, or the District of

Columbia, of a serious crime. A serious crime includes any felony and

also includes any lesser crime, a necessary element of which, as

determined by the statutory or common law definition of such crime in

the jurisdiction where the judgment was entered, involved interference

with the administration of justice, false swearing, misrepresentation,

fraud, willful failure to file income tax returns, deceit, dishonesty,

bribery, extortion, misappropriation, theft, or an attempt or a

conspiracy or solicitation of another to commit a serious crime. A plea

or verdict of guilty or a conviction after a plea of nolo contender is

deemed to be a conviction within the meaning of this section;

[[Page 2906]]

(i) Falsely certifies a copy of a document as being a true and

complete copy of an original;

(j) Engages in frivolous behavior in a proceeding before the

Immigration Court, the Board, or any other administrative appellate

body under title II of the Immigration and Nationality Act.

(1) A practioner engages in frivolous behavior when he or she knows

or reasonably should have known that his or her actions lack an

arguable basis in law or in fact, or are taken for an improper purpose,

such as to harass or to cause unnecessary delay. Actions that, if taken

improperly, may be subject to disciplinary sanctions include, but are

not limited to, the making of an argument on any factual or legal

question, the submission of an application for discretionary relief,

the filing of a motion, or the filing of an appeal. The signature of a

practioner on any filing, application, motion, appeal, brief, or other

document constitutes certification by the signer that the signer has

read the filing, application, motion, appeal, brief, or other document

and that, to the best of the signer's knowledge, information, and

belief, formed after inquiry reasonable under the circumstances, the

document is well-grounded in fact and is warranted by existing law or

by a good faith argument for the extension, modification, or reversal

of existing law or the establishment of new law, and is not interposed

for any improper purpose.

(2) The imposition of disciplinary sanctions for frivolous behavior

under this section in no way limits the authority of the Board to

dismiss an appeal summarily pursuant to Sec. 3.1(d)(1-a);

(k) Engages in conduct that constitutes ineffective assistance of

counsel, as previously determined in a finding by the Board or the

Immigration Court in an immigration proceeding, within five years

preceding the filing of the complaint; or

(l) Repeatedly fails to appear for scheduled hearings in a timely

manner.

Sec. 3.53 Filing of and preliminary inquiry into complaints;

resolutions; referral of complaints.

(a) Filing of complaints--(1) Practitioners authorized to practice

before the Board and the Immigration Courts. Complaints of criminal,

unethical, or unprofessional conduct, or frivolous behavior by a

practioner who is authorized to practice before the Board and the

Immigration Courts shall be filed with the Office of the General

Counsel of EOIR. Complaints must be submitted in writing and must state

in detail the information that supports the basis for the complaint,

including, but not limited to, the names and addresses of the

complainant and the practitioner, the date(s) of the conduct or

behavior, the nature of the conduct or behavior, the individuals

involved, the harm or damages sustained by the complainant, and any

other relevant information. Any individual may file a complaint with

the Office of the General Counsel of EOIR. The Office of the General

Counsel of EOIR shall notify the Office of the General Counsel of the

Service of any complaint filed that pertains, in whole or in part, to a

matter involving the Service.

(2) Practitioners authorized to practice before the Service.

Complaints of criminal, unethical, or unprofessional conduct, or of

frivolous behavior by a practitioner who is authorized to practice

before the Service shall be filed with the Office of the General

Counsel of the Service pursuant to the procedures set forth in

Sec. 292.3(c) of this chapter.

(b) Preliminary inquiry. Upon receipt of a complaint or on its own

initiative, the Office of the General Counsel of EOIR will initiate a

preliminary inquiry. If a complaint concerning a practitioner is filed

by a client or former client, the complainant thereby waives the

attorney-client privilege and any other applicable privilege, as

between the complainant and the practitioner, to the extent necessary

for the preliminary inquiry and any subsequent prosecution of the

allegations. If the Office of the General Counsel of EOIR determines

that a complaint is without merit, no further action will be taken. The

Office of the General Counsel of EOIR may, in its discretion, close a

preliminary inquiry if the complainant fails to comply with its

reasonable requests for assistance, information, or documentation. The

complainant and the practitioner shall be notified of such

determinations in writing.

(c) Resolutions reached prior to the issuance of a Notice of Intent

to Discipline. The Office of the General Counsel of EOIR, in its

discretion, may issue warning letters and admonitions, and may enter

into agreements in lieu of discipline, prior to the issuance of a

Notice of Intent to Discipline.

(d) Referral of complaints of criminal conduct. If the Office of

the General Counsel of EOIR receives credible information or

allegations that a practitioner has engaged in criminal conduct in

connection with an immigration matter, the Office of the General

Counsel of EOIR shall refer the matter to the Inspector General and, if

appropriate, to the Federal Bureau of Investigation. In such cases, in

making the decision to pursue disciplinary sanctions, the Office of the

General Counsel of EOIR shall coordinate in advance with the

appropriate investigative and prosecutive authorities of the Department

to ensure that neither the disciplinary process nor criminal

prosecutions are jeopardized.

Sec. 3.54 Notice of Intent to Discipline.

(a) Issuance of Notice to practitioner. If, upon completion of the

preliminary inquiry, the Office of the General Counsel of EOIR

determines, by a preponderance of the evidence, that a practitioner has

engaged in professional misconduct as set forth in Sec. 3.52, it will

issue a Notice of Intent to Discipline to the practitioner named in the

complaint. This notice will be served upon the practitioner by personal

service as defined in Sec. 103.5a of this chapter. Such notice shall

contain a statement of the charge(s), a copy of the preliminary inquiry

report, the proposed disciplinary sanctions to be imposed, the

procedure for filing an answer or requesting a hearing, and the mailing

address and telephone number for the Disciplinary Committee.

(b) Copy of Notice to the Service; reciprocity of disciplinary

sanctions. A copy of the Notice of Intent to Discipline shall be

forwarded to the Office of the General Counsel of the Service. The

Office of the General Counsel of the Service may submit a written

request to the adjudicating official asking that he or she recommend

that any discipline imposed against a practitioner's right to practice

before the Board or the Immigration Courts also apply to the

practitioner's right to practice before the Service. Proof of service

on the practitioner of any request to broaden the scope of the proposed

discipline must be filed with the adjudicating official.

(c) Answer. The practitioner shall file an answer to the Notice of

Intent to Discipline with the Office of the General Counsel of EOIR

within 30 days of the date of service of the Notice of Intent to

Discipline, unless an extension of time is granted for good cause by

the Disciplinary Committee. A request for an extension of time to

answer must be received by the Disciplinary Committee at least three

(3) working days before the time to answer has expired. A copy of such

request shall be served on the Office of the General Counsel of EOIR.

The answer shall be in writing, must respond to each charge in a

substantive and detailed manner, and may include any supporting

documents, including affidavits or statements. The answer

[[Page 2907]]

shall state whether the practitioner requests a hearing on the matter.

(d) Failure to file an answer. Failure to file an answer in a

timely manner shall be deemed an admission to the factual allegations

set forth in the Notice of Intent to Discipline and no further proof

shall be required to establish the truth of such facts. The Office of

the General Counsel of EOIR shall submit proof of personal service of

the Notice of Intent to Discipline. The practitioner shall be precluded

thereafter from requesting a hearing on the matter. The recommended

disciplinary sanctions in the Notice of Intent to Discipline shall then

become final and the Disciplinary Committee shall issue a final order

adopting the recommended disciplinary sanctions against the

practitioner. A practitioner may file a motion to set aside a final

order of disciplinary sanctions, issued pursuant to this paragraph,

with the Disciplinary Committee if:

(1) Such a motion is filed within 15 days of service of the final

order; and

(2) His or her failure to file an answer was due to exceptional

circumstances (such as serious illness of the practitioner or death of

an immediate relative of the practitioner, but not including less

compelling circumstances) beyond the control of the practitioner.

Sec. 3.55 Hearing and disposition.

(a) Hearing--(1) Procedure. (i) The Director of EOIR shall, upon

the filing of an answer, appoint an adjudicating official. An

adjudicating official may be an Immigration Judge, an Assistant Chief

Immigration Judge, a Board Member, or an Administrative Law Judge. Upon

the practitioner's request for a hearing, the Director of EOIR shall

designate the time and place of the initial hearing. Pre-hearing

conferences may be scheduled at the discretion of the adjudicating

official in order to narrow issues, to obtain stipulations between the

parties, to exchange information voluntarily, and otherwise to simplify

and organize the proceeding. Settlement agreements reached after the

issuance of a Notice of Intent to Discipline are subject to final

approval by the adjudicating official and the Disciplinary Committee.

(ii) The practitioner may be represented at the hearing by counsel

at no expense to the government. At the hearing, the practitioner shall

have a reasonable opportunity to examine and object to evidence

presented by the government, to present evidence on his or her own

behalf, and to cross-examine witnesses presented by the government. The

adjudicating official shall consider: the complaint, the preliminary

inquiry report, the Notice of Intent to Discipline, the answer and any

supporting documents; and any other evidence presented at the hearing

(or, if the practitioner files an answer but does not request a

hearing, any pleading, brief, or other materials submitted by counsel

for the government). Counsel for the government shall bear the burden

of proving the grounds for disciplinary sanctions enumerated in the

Notice of Intent to Discipline by clear, unequivocal, and convincing

evidence.

(iii) The record of the hearing, regardless of whether the hearing

is held before an Immigration Judge, an Assistant Chief Immigration

Judge, a Board Member, or an Administrative Law Judge, shall conform to

the requirements of 8 CFR 240.9. Disciplinary hearings shall be

conducted in the same manner as immigration court proceedings as is

appropriate, and shall be open to the public, except that:

(A) Depending upon physical facilities, the adjudicating official

may place reasonable limitations upon the number in attendance at any

one time,

(B) For the purposes of protecting witnesses, parties, or the

public interest, the adjudicating official may limit attendance or hold

a closed hearing.

(2) Fairlure to appear at hearing. Failure to appear at the hearing

shall be deemed an admission to the factual allegations set forth in

the Notice of Intent to Discipline, even when the practitioner filed an

answer, and no further proof shall be required to establish the truth

of such facts. The Office of the General Counsel of EOIR or the Office

of the General Counsel of the Service shall submit proof of personal

service of the Notice of Intent to Discipline. The practitioner shall

be precluded thereafter from participating further in the proceedings.

The recommended disciplinary sanctions in the Notice of Intent to

Discipline shall then become final and the Disciplinary Committee shall

issue a final order adopting the recommended disciplinary sanctions

against the practitioner. A practitioner may file a motion to set aside

a final order of disciplinary sanctions issued pursuant to this

paragraph if:

(i) Such a motion is filed within 15 days of service of the final

order; and

(ii) His or her failure to appear at the hearing was due to

exceptional circumstances (such as serious illness of the practitioner

or death of an immediate relative of the practitioner, but not

including less compelling circumstances) beyond the control of the

practitioner.

(b) Recommendation. The adjudicating official shall consider the

entire record, including any testimony and evidence presented at the

hearing, and shall report his or her findings and recommendations to

the Disciplinary Committee. If the adjudicating official finds that the

grounds for disciplinary sanctions enumerated in the Notice of Intent

to Discipline have been established by clear, unequivocal, and

convincing evidence, he or she shall recommend that the disciplinary

sanctions set forth in the Notice of Intent to Discipline be adopted,

modified, or otherwise amended. If the adjudicating official recommends

that the practitioner be suspended, the time period for such suspension

shall be specified. Court costs also may be assessed against the

practitioner, including the costs of a transcript, an interpreter, or

any other costs necessary to conduct the hearing. If the adjudicating

official finds that the grounds for disciplinary sanctions enumerated

in the Notice of Intent to Discipline have not been established by

clear, unequivocal, and convincing evidence, he or she shall recommend

to the Disciplinary Committee that the case be dismissed.

(c) Decision. Upon a de novo review of the findings and

recommendations of the adjudicating official, the Disciplinary

Committee may adopt, modify, or otherwise amend the recommended

disciplinary sanctions. The decision of the Disciplinary Committee is a

final administrative order and shall be served upon the practitioner by

personal service as defined in Sec. 103.5a of this chapter. A copy of

the final administrative decision of the Disciplinary Committee shall

be served upon the Office of the General Counsel of EOIR and the Office

of the General Counsel of the Service. If disciplinary sanctions are

imposed against a practitioner (other than a private censure), the

Disciplinary Committee may require that a notice of such sanctions be

posted at the Immigration Courts, the Board, or the Service for the

period of time during which the sanctions are in effect, or for any

other period of time as determined by the Disciplinary Committee.

(d) Referral. In addition to or in lieu of initiating disciplinary

proceedings against a practitioner, the Office of the General Counsel

of EOIR may notify the appropriate state and/or local professional

licensing or regulatory authority of a complaint filed against a

practitioner. Any final administrative decision imposing sanctions

against a practitioner (other than a private censure) shall be reported

to the

[[Page 2908]]

appropriate state and/or local professional licensing or regulatory

authority.

Sec. 3.56 Reinstatement after expulsion or suspension.

(a) Expiration of suspension. A practitioner who has been suspended

will be reinstated automatically to practice before the Board and the

Immigration Courts or the Service, or before all three authorities,

once the period of suspension has expired, provided that he or she

meets the definition of attorney or representative as set forth in

Sec. 1.1 (f) and (j), respectively, of this chapter. If a practitioner

cannot meet the definition of attorney or representative, the

Disciplinary Committee will decline to reinstate the practitioner.

(b) Petition for reinstatement A practitioner who has been expelled

or who has been suspended for one year or more may file a petition for

reinstatement directly with the Disciplinary Committee after one-half

of the suspension period has expired or one year has passed, whichever

is greater, provided that he or she meets the definition of attorney or

representative as set forth in Sec. 1.1 (f) and (j), respectively, of

the chapter. A copy of such petition shall be served on the Office of

the General Counsel of EOIR. In matters in which the practitioner was

also ordered expelled or suspended from practice before the Service, a

copy of such petition shall be served on the Office of the General

Counsel of the Service. The practitioner shall have the burden of

demonstrating by clear, unequivocal, and convincing evidence that he or

she possesses the moral and professional qualifications required to

appear before the Board and the Immigration Courts or the Service, or

before all three authorities, and that his or her reinstatement will

not be detrimental to the administration of justice. The Office of the

General Counsel of EOIR, and in matters in which the practitioner was

ordered expelled or suspended from practice before the Service, the

Office of the General Counsel of the Service, may respond to the

petition in the form of a written response, which may include

documentation of any complaints filed against the expelled or suspended

practitioner subsequent to his or her expulsion or suspension. If a

practitioner cannot meet the definition of attorney or representative

as set forth in Sec. 1.1 (f) and (j), respectively, of this chapter,

the Disciplinary Committee will deny the petition for reinstatement. If

reinstatement is found to be inappropriate or unwarranted, the petition

shall be denied and any subsequent petitions for reinstatement may not

be filed before the end of one year from the date of the previous

denial. If reinstatement is found to be appropriate and the

practitioner is found to be qualified to practice before the Board and

the Immigration Courts or the Service, or before all three authorities,

the practitioner will be reinstated.

Sec. 3.57 Confidentiality.

(a) Complaints and preliminary inquiries. Except as otherwise

provided by law or regulation, information concerning complaints or

preliminary inquiries is confidential. A practitioner whose conduct is

the subject of a complaint or preliminary inquiry, however, may waive

confidentiality, except that the Office of the General Counsel of EOIR

may decline to permit a waiver of confidentiality if it is determined

that an ongoing preliminary inquiry may be substantially, prejudiced by

a public disclosure before the filing of a Notice of Intent to

Discipline.

(1) Disclosure of information for the purpose of protecting the

public. The Office of the General Counsel of EOIR, after private notice

to the practitioner, may disclose information concerning a complaint or

preliminary inquiry for the protection of the public when the necessity

for disclosing information outweighs the necessity for preserving

confidentiality in circumstances including, but not limited to, the

following:

(i) A practitioner has caused, or is likely to cause, harm to

client(s), the public, or the administration of justice, such that the

public or specific individuals should be advised of the nature of the

allegations. If disclosure of information is made pursuant to this

paragraph, the Office of the General Counsel of EOIR may define the

scope of information disseminated and may limit the disclosure of

information to specified individuals or entities;

(ii) A practitioner has committed criminal acts or is under

investigation by law enforcement authorities;

(iii) A practitioner is under investigation by a regulatory or

licensing agency, or has committed acts or made omissions that may

reasonably result in investigation by a regulatory or licensing agency;

(iv) A practitioner is the subject of multiple complaints and the

Office of the General Counsel of EOIR has determined not to pursue all

of the complaints. The Office of the General Counsel of EOIR may inform

complainants whose allegations have not been pursued of the status of

the other preliminary inquiries or the manner is which the other

complaint(s) against the practitioner have been resolved.

(2) Disclosure of information for the purpose of conducting a

preliminary inquiry. The Office of the General Counsel of EOIR, in the

exercise of discretion, may disclose documents and information

concerning complaints and preliminary inquiries to the following

individuals or entities:

(i) To witnesses or potential witnesses in conjunction with a

complaint or preliminary inquiry;

(ii) To other governmental agencies responsible for the enforcement

of civil or criminal laws;

(iii) To agencies and other jurisdictions responsible for

professional licensing;

(iv) To the complainant or a lawful designee;

(v) To the practitioner who is the subject of the complaint or

preliminary inquiry or the practitioner's counsel of record.

(b) Resolutions reached prior to the issuance of a Notice of Intent

to Discipline. Resolutions, such as warning letters, admonitions, and

agreements in lieu of discipline, reached prior to the issuance of a

Notice of Intent to Discipline will remain confidential. However, such

resolutions may become part of the public record if the practitioner

becomes the subject of a subsequent Notice of Intent to Discipline.

(c) Notices of Intent to Discipline and action subsequent thereto.

Notices of Intent to Discipline and any action that takes place

subsequent to their issuance, except for the imposition of private

censures, may be disclosed to the public, except that private censures

may become part of the public record if introduced as evidence of a

prior record of discipline in any subsequent proceeding. Settlement

agreements reached after the issuance of a Notice of Intent to

Discipline may be disclosed to the public upon final approval by the

adjudicating official and the Disciplinary Committee. Disciplinary

hearings are open to the public, except as noted in Sec. 3.55.

Sec. 3.58 Discipline of government attorneys.

Complaints regarding the conduct and behavior of government

attorneys shall be directed to the Office of Professional

Responsibility of the Department of Justice.

PART 292--REPRESENTATION AND APPEARANCES

6. The authority citation for part 292 continues to read as

follows:

[[Page 2909]]

Authority: 8 U.S.C. 1103, 1252b, 1362.

7. Section 292.3 is revised to read as follows:

Sec. 292.3 Professional Conduct for Practitioners--Rules and

Procedures.

(a) General provisions--(1) Disciplinary Committee. The

Disciplinary Committee established under Sec. 3.51 of this chapter may

impose disciplinary sanctions against any practitioner if it finds it

to be in the public interest to do so.

(2) Authority to sanction. It will be in the public interest to

impose disciplinary sanctions against a practitioner who is authorized

to practice before the Service when such person has engaged in

criminal, unethical, or unprofessional conduct, or in frivolous

behavior, as set forth in Sec. 3.52 of this chapter. In accordance with

the disciplinary proceedings set forth in part 3 of this chapter, the

Disciplinary Committee may impose any of the following disciplinary

sanctions:

(i) Expulsion, which is permanent, from practice before the Board

of Immigration Appeals and the Immigration Courts or the Service, or

before all three authorities;

(ii) Suspension, including immediate suspension, from practice

before the Board and the Immigration Courts or the Service, or before

all three authorities;

(iii) Public or private censure; or

(iv) Such other disciplinary sanction as the Disciplinary Committee

deems appropriate.

(3) Persons subject to sanctions. Persons subject to sanctions

include any practitioner. A practitioner is any attorney as defined in

Sec. 1.1(f) of this chapter who does not represent the federal

government, or any representative as defined in Sec. 1.1(j) of this

chapter. Attorneys employed by the Department of Justice shall be

subject to discipline pursuant to paragraph (h) of this section.

(4) Immediate suspension and summary disciplinary proceedings--

(i)Immediate suspension. The Office of the General Counsel of the

Service may ask the Disciplinary Committee to immediately suspend from

practice before the Service any practitioner who has been convicted of

a serious crime, as defined in Sec. 3.52(h) of this chapter, or who has

been disbarred or is currently under suspension or resignation with an

admission of misconduct by the bar of any state, possession, territory,

commonwealth, or the District of Columbia, or by any Federal Court.

Such immediate suspension may be imposed upon the practitioner while

any appeal from the underlying conviction or discipline is pending and

shall continue until such time as a final administrative decision is

made by the Disciplinary Committee. If a final administrative decision

includes the imposition of a period of suspension, any time spent by

the practitioner under immediate suspension pursuant to this paragraph

will be credited toward the period of suspension imposed by the final

administrative decision.

(ii) Summary disciplinary proceedings. The Office of the General

Counsel of the Service may initiate summary disciplinary proceedings

against any practitioner described in paragraph (a)(4)(i) of this

section. Summary proceedings may be initiated by the issuance of a

Notice of Intent to Discipline if accompanied by a certified copy of a

judgment of conviction or a judgment or order of discipline. Summary

proceedings shall be conducted in accordance with the provisions set

forth in Secs. 3.54 and 3.55 of this chapter, except that a certified

copy of a judgment of conviction or judgment or order of discipline

shall serve as a rebuttable presumption of the commission of the crime

or the professional misconduct. The imposition of disciplinary sanction

shall follow, unless the practitioner can rebut the presumption by

demonstrating that:

(A) The underlying criminal or disciplinary proceeding was so

lacking in notice or opportunity to be heard as to constitute a

deprivation of due process;

(B) There was such an infirmity of proof establishing the

practitioner's guilt or professional misconduct as to give rise to the

clear conviction that the adjudicating official could not, consistent

with his or her duty, accept as final the conclusion on that subject;

or

(C) The imposition of discipline by the adjudicating official would

result in grave injustice.

(iii) Ineligibility to rebut the presumption of professional

misconduct. An attorney shall not be eligible to rebut the presumption

of the commission of professional misconduct unless he or she is a

member in good standing of the bar of the highest court of any state,

possession, territory, commonwealth, or the District of Columbia.

(5) Duty of practitioner to notify the Service of conviction or

discipline. Any practitioner who has been convicted of a serious crime,

as defined in Sec. 3.52(h) of this chapter, or who has been disciplined

for professional misconduct by the bar of any state, possession,

territory, commonwealth, or the District of Columbia, or by a Federal

court must notify the Office of the General Counsel of the Service of

any such conviction or disciplinary action within 30 days of the

issuance of the initial order, even if an appeal of the conviction or

discipline is pending. Failure to do so may result in immediate

suspension as set forth in paragraph (a)(3)(i) of this section. This

duty to notify applies only to convictions for serious crimes or

rulings of professional misconduct entered after the effective date of

this regulation.

(b) Grounds of discipline as set forth in Sec. 3.52 of this

chapter. It is deemed to be in the public interest for the Disciplinary

Committee to impose disciplinary sanctions as described in paragraph

(a) of this section against any practitioner who falls within one or

more of the categories enumerated in Sec. 3.52 of this chapter, with

the exception of paragraphs (k) and (l) of that section, but these

categories do not constitute the exclusive grounds for which

disciplinary sanctions may be imposed in the public interest.

(c) Filing of and preliminary inquiry into complaints, resolutions;

referral of complaints--(1) Practitioners authorized to practice before

Service. Complaints of criminal, unethical, or unprofessional conduct,

or of frivolous behavior by a practitioner who is authorized to

practice before the Service shall be filed with the Office of the

General Counsel of the Service. Complaints must be submitted in writing

and must state in detail the information that supports the basis for

the complaint, including, but not limited to, the names and addresses

of the complainant and the practitioner, the date(s) of the conduct or

behavior, the nature of the conduct or behavior, the individual

involved, the harm or damages sustained by the complainant, and any

other relevant information. Any individual may file a complaint with

the Office of the General Counsel of the Service. The Office of the

General Counsel of the Service shall notify the Office of the General

Counsel of the Executive Office for Immigration Review (EOIR) of any

complaint filed that pertains, in whole or in part, to a matter before

the Board or the Immigration Courts.

(2) Practitioners authorized to practice before the Board and the

Immigration Courts. Complaints of criminal, unethical, or

unprofessional conduct, or of frivolous behavior by a practitioner who

is authorized to practice before the Board and the Immigration Courts

shall be filed with the Office of the General Counsel of EOIR pursuant

to the procedures set forth in Sec. 3.53(a) of this chapter.

[[Page 2910]]

(3) Preliminary inquiry. Upon receipt of a complaint or on its own

initiative, the Office of the General Counsel of the Service will

initiate a preliminary inquiry. If a complaint concerning a

practitioner is filed by a client or former client, the complainant

thereby waives the attorney-client privilege and any other applicable

privilege, as between the complainant and the practitioner, to the

extent necessary for the preliminary inquiry and any subsequent

prosecution of the allegations. If the Office of the General Counsel of

the Service determines that a complaint is without merit, no further

action will be taken. The Office of the General Counsel of the Service

may, in its discretion, close a preliminary inquiry if the complainant

fails to comply with its reasonable requests for assistance,

information, or documentation. The complainant shall be notified of

such determinations in writing.

(4) Resolutions reached prior to the issuance of a Notice of Intent

to Discipline. The Office of the General Counsel of the Service, in its

discretion, may issue warning letters and admonitions, and may enter

into agreements in lieu of discipline, prior to the issuance of a

Notice of Intent to Discipline.

(5) Referral of complaints of criminal conduct. If the Office of

the General Counsel of the Service receives credible information or

allegations that a practitioner has engaged in criminal conduct in

connection with an immigration matter, the Office of the General

Counsel of the Service shall refer the matter to the Inspector General

and, if appropriate, to the Federal Bureau of Investigation. In such

cases, in making the decision to pursue disciplinary sanctions, the

Office of the General Counsel of the Service shall coordinate in

advance with the appropriate investigative and prosecutive authorities

of the Department to ensure that neither the disciplinary process nor

criminal prosecutions are jeopardized.

(d) Notice of Intent to Discipline--(1) Issuance of Notice to

practitioner. If, upon completion of the preliminary inquiry, the

Office of the General Counsel of the Service determines, by a

preponderance of the evidence, that a practitioner has engaged in

professional misconduct as set forth in Sec. 3.52 of this chapter, it

will issue a Notice of Intent to Discipline to the practitioner named

in the complaint. This notice will be served upon the practitioner by

personal service as defined in Sec. 103.5a of this chapter. Such notice

shall contain a statement of the charge(s), a copy of the preliminary

inquiry report, the proposed disciplinary sanctions to be imposed, the

procedure for filing an answer or requesting a hearing, and the mailing

address and telephone number for the Disciplinary Committee. The Office

of the General Counsel of the Service shall forward a copy of the

Notice of Intent to Discipline to the Disciplinary Committee.

(2) Copy of Notice to EOIR; reciprocity of disciplinary sanctions.

A copy of the Notice of Intent to Discipline shall be forwarded to the

Office of the General Counsel of EOIR. The Office of the General

Counsel of EOIR may submit a written request to the adjudicating

official asking that he or she recommend that any discipline imposed

against a practitioner's right to practice before the Service also

apply to the practitioner's right to practice before the Board and the

Immigration Courts. Proof of service on the practitioner of any request

to broaden the scope of the proposed discipline must be filed with the

adjudicating official.

(3) Answer. The practitioner shall file an answer to the Notice of

Intent to Discipline with the Office of the General Counsel of the

Service within 30 days of the date of service, unless an extension of

time is granted for good cause by the Disciplinary Committee. A request

for an extension of time to answer must be received by the Disciplinary

Committee at EOIR Headquarters at least three (3) working days before

the time to answer has expired. A copy of such request shall be served

on the Office of the General Counsel of the Service. The answer shall

be in writing, must respond to each charge in a substantive and

detailed manner, and may include any supporting documents, including

affidavits or statements. The answer shall state whether the

practitioner requests a hearing on the matter. The Office of the

General Counsel of the Service shall forward a copy of the

practitioner's answer to the Disciplinary Committee or, if no answer

was filed, notification of such shall be filed with the Disciplinary

Committee.

(4) Failure to file an answer. Failure to file an answer in a

timely manner shall be deemed an admission to the factual allegations

set forth in the Notice of Intent to Discipline and no further proof

shall be required to establish the truth of such facts. The Office of

the General Counsel of the Service shall submit proof of personal

service of the Notice of Intent to Discipline. The practitioner shall

be precluded thereafter from requesting a hearing on the matter. The

recommended disciplinary sanctions in the Notice of Intent to

Discipline shall then become final and the Disciplinary Committee shall

issue a final order adopting the recommended disciplinary sanctions

against the practitioner. A practitioner may file a motion to set aside

a final order of disciplinary sanctions, issued pursuant to this

paragraph, with the Disciplinary Committee if:

(i) Such a motion is filed within 15 days of service of the final

order, and

(ii) His or her failure to file an answer was due to exceptional

circumstances (such as serious illness of the practitioner or death of

an immediate relative of the practitioner, but not including less

compelling circumstances) beyond the control of the practitioner.

(e) Hearing and disposition. Upon the filing of an answer, the

matter shall be heard and decided according to the procedures set forth

in Secs. 3.55 and 3.56 of this chapter. The Office of the General

Counsel of the Service shall represent the government.

(f) Referral. In addition to or in lieu of initiating disciplinary

proceedings against a practitioner, the Office of the General Counsel

of the Service may notify the appropriate state and/or local

professional licensing or regulatory authority of a complaint filed

against a practitioner. Any final administrative decision imposing

sanctions against a practitioner (other than a private censure) shall

be reported to the appropriate state and/or local professional

licensing or regulatory authority.

(g) Confidentiality--(1) Complaints and preliminary inquiries.

Except as otherwise provided by law or regulation, information

concerning complaints or preliminary inquiries is confidential. A

practitioner whose conduct is the subject of a complaint or preliminary

inquiry, however, may waive confidentiality, except that the Office of

the General Counsel of the Service may decline to permit a waiver of

confidentiality if it is determined that an ongoing preliminary inquiry

may be substantially prejudiced by a public disclosure before the

filing of a Notice of Intent to Discipline.

(i) Disclosure of information for the purpose of protecting the

public. The Office of the General Counsel of the Service, after private

notice to the practitioner, may disclose information concerning a

complaint or preliminary inquiry for the protection of the public when

the necessity for disclosing information outweighs the necessity for

preserving confidentiality in circumstances including, but not limited

to, the following:

(A) A practitioner has caused, or is likely to cause, harm to

client(s), the

[[Page 2911]]

public, or the administration of justice, such that the public or

specific individuals should be advised of the nature of the

allegations. If disclosure of information is made pursuant to this

paragraph, the Office of the General Counsel of the Service may define

the scope of information disseminated and may limit the disclosure of

information to specified individuals or entities;

(B) A practitioner has committed criminal acts or is under

investigation by law enforcement authorities;

(C) A practitioner is under investigation by a regulatory or

licensing agency, or has committed acts or made omissions that may

reasonably result in investigation by a regulatory or licensing agency;

(D) A practitioner is the subject of multiple complaints and the

Office of the General Counsel of the Service has determined not to

pursue all of the complaints. The Office of the General Counsel of the

Service may inform complainants whose allegations have not been pursued

of the status of the other preliminary inquiries or the manner in which

the other complaint(s) against the practitioner have been resolved.

(ii) Disclosure of information for the purpose of conducting a

preliminary inquiry. The Office of the General Counsel of the Service,

in the exercise of discretion, may disclose documents and information

concerning complaints and preliminary inquiries to the following

individuals or entities:

(A) To witnesses or potential witnesses in conjunction with a

complaint or preliminary inquiry;

(B) To other governmental agencies responsible for the enforcement

of civil or criminal laws;

(C) To agencies and other jurisdictions responsible for

professional licensing;

(D) To the complainant or a lawful designee; and

(E) To the practitioner who is the subject of the complaint or

preliminary inquiry or the practitioner's counsel of record.

(2) Resolutions reached prior to the issuance of a Notice of Intent

to Discipline. Resolutions, such as warning letters, admonitions, and

agreements in lieu of discipline, reached prior to the issuance of a

Notice of Intent to Discipline will remain confidential.

(3) Notices of Intent to Discipline and action subsequent thereto.

Notices of Intent to Discipline and any action that takes place

subsequent to their issuance, except for the imposition of private

censures, may be disclosed to the public, except that private censures

may become part of the public record if introduced as evidence or a

prior record of discipline in any subsequent proceeding. Settlement

agreements reached after the issuance of a Notice of Intent to

Discipline may be disclosed to the public upon final approval by the

adjudicating official and the Disciplinary Committee. Disciplinary

hearings are open to the public, except as noted in Sec. 3.55(a)(iii)

of this chapter.

(h) Discipline of government attorneys. Complaints regarding the

conduct and behavior of government attorneys shall be directed to the

Office of Professional Responsibility of the Department of Justice.

Dated: January 12, 1998.

Janet Reno,

Attorney General.

[FR Doc. 98-1192 Filed 1-16-98; 8:45 am]

BILLING CODE 4410-30-M