NY Bar Says Immigration Atty Can Withdraw Due To Virus Fear

By Lauren Berg
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Law360 (October 12, 2020, 7:38 PM EDT) -- A New York lawyer may withdraw from representing a client in immigration court for fear of contracting the novel coronavirus so long as the attorney receives the court's permission, the state's bar association said in an ethics opinion issued Thursday.

Citing the state's Rule of Professional Conduct 1.16, the New York State Bar Association said withdrawal is permitted when the lawyer's mental or physical condition makes it difficult to effectively represent a client.

An attorney concerned about contracting COVID-19 during an immigration proceeding had asked the NYSBA to clarify whether attorneys who fear their health could be at risk can withdraw from representing clients scheduled to appear in person.

The association said the fear of contracting COVID-19 "might subtly but powerfully undermine" the inquiring attorney's ability to represent the client. For example, the association said, the attorney might be reluctant to spend time with the client in person to learn the facts of the case and tell the client about options.

The attorney might also consent prematurely to a disposition that ends the proceeding, even if a more favorable disposition might be obtained following additional appearances in court, according to the opinion.

"In order to limit exposure to the disease, the inquirer might even hasten to complete a hearing without calling witnesses to testify on behalf of the client or by waiving cross-examination of government witnesses," the NYSBA said.

In those kinds of situations, withdrawal would be permitted under the state rule, according to the opinion.

But in this case, where the client must go before an immigration "tribunal," the attorney might have to get permission from the court regardless of the grounds for withdrawal, the association said. Immigration court rules say an attorney must get consent from the court before withdrawing if the attorney hasn't first obtained successor counsel for the client.

If the court grants the motion to withdraw, the attorney will have to give reasonable notice to the client, allow time for the hiring of other counsel and refund any part of a fee paid in advance that has not been earned, the association said.

Courts around the country have taken different approaches to proceedings during the pandemic. Some, including the Central District of California, hold hearings by telephone or video conferencing systems and are still closed to the public. Federal courts are grappling with how to resume criminal trials, and some are not holding civil trials until next year to avoid bringing juries together.

Two of the busiest patent judges in the country have resumed in-person jury trials in Texas but with different approaches.

For U.S. District Judge Rodney Gilstrap, who presides over the Marshall courthouse in the Eastern District, seeing participants' faces is so important he orders empaneled jurors and attorneys sitting at counsel tables to wear only face shields. U.S. District Judge Alan D. Albright of the Western District's Waco division gives jurors the option of wearing face masks or shields, and attorneys at counsel tables in his courtroom can choose whether they wear face coverings at all.

The U.S. Supreme Court said Friday it would continue holding oral arguments via phone through the end of the year, a period that includes blockbuster cases on the Affordable Care Act, the First Amendment and the special counsel's investigation into 2016 presidential election interference.

The court closed to the public in March and has been holding teleconference hearings since May.

--Additional reporting by Katie Buehler and Jimmy Hoover. Editing by Kat Laskowski.

For a reprint of this article, please contact reprints@law360.com.

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