By Daniel J. Siegel
The Philadelphia Bar Association Professional Guidance Committee has issued Formal Opinion 2025-1 to address the ethical concerns surrounding attorneys questioning or invoking the immigration status of individuals in legal proceedings. This opinion provides clarity on the Pennsylvania Rules of Professional Conduct, which prohibit such actions when they are intended to intimidate, coerce, or obstruct someone from participating in the legal system. The Committee emphasizes that these practices undermine the rights of individuals, interfere with the administration of justice, and violate several ethical rules governing attorneys.
Background and Context
As of 2023, approximately 24 million non-citizens reside in the United States, representing about 7% of the population. Of this group, roughly 12 million are unauthorized immigrants, while the remaining 11 million are lawfully present but may face risks to their legal status under certain circumstances, such as alleged criminal conduct. Federal authorities have increasingly enforced immigration laws, often involving state and local officials in their efforts. This enforcement has included actions against non-citizens present at unrelated legal proceedings, creating a climate of fear and uncertainty for non-citizens engaging with the legal system.
This environment has significant implications for the legal system. Non-citizens may avoid participating in legal proceedings because of perceived or actual threats of immigration consequences. This reluctance can hinder access to witnesses, disrupt the proper functioning of the courts, and discourage cooperation with law enforcement. Additionally, it creates opportunities for unethical behavior by attorneys who exploit concerns about immigration status to advance their clients’ interests.
Ethical Rules and Prohibitions
The opinion identifies several key provisions of the Pennsylvania Rules of Professional Conduct that prohibit attorneys from invoking immigration status for improper purposes:
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RPC 3.4 (Fairness to Opposing Party and Counsel):
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RPC 4.4 (Respect for Rights of Third Persons):
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RPC 8.4 (Misconduct):
Improper Use of Immigration Status
The Opinion highlights that questioning or invoking someone’s immigration status or reporting them to Immigration and Customs Enforcement (ICE), is prohibited when the purpose is to intimidate, coerce, or obstruct their participation in legal proceedings. This prohibition applies to both overt threats and implied assertions. For example, mentioning that a witness may encounter ICE agents if they appear in court can deter their participation just as effectively as directly threatening to report them.
The opinion also notes that immigration status may only be addressed if it is directly relevant to the case. Pennsylvania Rule of Evidence 413 states that evidence of a party’s or witness’s immigration status is inadmissible unless it is essential to prove an element of the matter. This ensures that immigration status is not improperly used to manipulate legal outcomes.
Broader Implications for Justice
The Committee emphasizes that suppressing or manipulating participation in legal proceedings through immigration-related threats undermines the adversarial process and the administration of justice. Such conduct frustrates access to the courts, disincentivizes cooperation with law enforcement, and prejudices the legal system. Similar to threats of reporting unrelated criminal conduct, these actions exploit external factors to gain an advantage, violating ethical standards.
The opinion also draws parallels to other contexts where implied assertions are prohibited under the Pennsylvania RPC. For instance, lawyers cannot imply an ability to improperly influence government officials (RPC 8.4(e)) or suggest disinterest when dealing with unrepresented individuals (RPC 4.3(a)). These rules underscore that the purpose of a lawyer’s communication matters more than the precise manner in which it is conveyed.
Conclusion
The Philadelphia Bar Association Professional Guidance Committee concludes that the Pennsylvania Rules of Professional Conduct prohibit lawyers from questioning or invoking someone’s immigration status or reporting them to ICE when the purpose is to intimidate, coerce, or obstruct their participation in legal proceedings. This prohibition applies equally to overt threats, implied assertions, and direct reporting. Such conduct violates the rights of parties and third persons, interferes with the administration of justice, and undermines the integrity of the legal system.
The Committee’s opinion serves as a reminder that attorneys must prioritize fairness, respect for the rights of all parties, and the proper functioning of the legal system. By adhering to these ethical standards, lawyers can ensure that the legal process remains accessible and just for all individuals, regardless of their immigration status.
Daniel J. Siegel, principal of the Law Offices of Daniel J. Siegel and Past-Chair of the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility, regularly represents injured workers in claims before all Pennsylvania courts. He also provides ethical guidance and Disciplinary Board representation for attorneys and law firms; he is the editor of Fee Agreements in Pennsylvania (6th Edition) and author of Leaving a Law Practice: Practical and Ethical Issues for Lawyers and Law Firms (Second Edition), published by the Pennsylvania Bar Institute. He can be reached at dan@danieljsiegel.com.
