Proposed Amendment to

COMMENT ON RULES OF PROFESSIONAL CONDUCT (RPC)

Comment to Rule 4.4 – RESPECT FOR RIGHTS OF THIRD PERSON

A.    Names of Proponents:

American Civil Liberties Union of Washington (ACLU-WA), Washington Defender Association, Northwest Justice Project, Northwest Immigrant Rights Project, Washington Immigrant Solidarity Network, Columbia Legal Services, Central Washington Justice For Our Neighbors, Asian Pacific Islander Institute on Gender-Based Violence, Washington State Coalition Against Domestic Violence, Washington Coalition of Sexual Assault Programs, Colectiva Legal del Pueblo                                                                         

B.     Spokesperson:                              Enoka Herat, Attorney

American Civil Liberties Union of Washington

Email: eherat@aclu-wa.org

C.     Purpose:

                  Since Comment [4] to Rules of Professional Conduct (RPC) 4.4 was originally adopted in 2013, the landscape of immigration enforcement has drastically changed. A technical amendment to the comment is needed to clarify that the protections extend to the use of civil immigration enforcement as a weapon against immigrant parties and witnesses across Washington. The changes to the comment would prevent all lawyers in Washington from reporting individuals to immigration authorities in both civil and criminal cases and help to ensure that all lawyers are upholding their duty to facilitate access to justice. The proposed changes also provide exceptions for state and federal law and for lawyers employed by federal immigration authorities.

These clarifications to the existing comment are proposed to prevent warrantless civil arrests being conducted in and around Washington courthouses by federal immigration enforcement agents. Cooperation with federal immigration enforcement agencies to facilitate these arrests transforms state courthouses into a staging ground for immigration detention and deportation, and makes the courthouse a frightening and unwelcoming place for immigrants and their families. The Washington State Bar Association (WSBA) Board of Governors (BOG) unanimously approved sending a letter to the Department of Homeland Security recognizing that the “situation leads to access to justice impediments and risks less safe communities.” Chief Justice Fairhurst has sent similar letters to Department of Homeland Security Divisions of Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) asserting that these arrests “impede the fundamental mission of our courts, which is to ensure due process and access to justice for everyone, regardless of their immigration status.” Unfortunately, as reflected in the current Comment [4], lawyers have used immigration enforcement as a strategic tactic, knowing that ICE and CBP have, in recent months, increased their presence at courthouses.

Immigration enforcement actions have occurred at courthouses throughout Washington, in at least 16 different counties. ICE and CBP primarily target people of color, predominantly Latinx Spanish speakers. Targeted people are stopped, questioned, and/or apprehended as they seek to enter, are inside, or are leaving a Washington courthouse. As a result, noncitizens, including immigrants with lawful status, and their families and communities are afraid to engage with our state’s justice system. Defendants fear showing up for court dates to answer and defend against criminal charges. They must choose risking additional charges for failing to appear or being arrested, detained, and possibly deported by immigration enforcement officers. These circumstances compromise defense attorneys’ capacity and obligations to defend clients, and prosecutors are impeded in their duties to pursue justice for alleged criminal violations. Similarly, victims of crime, including domestic violence, are afraid to seek judicial protections for fear being separated from their children or otherwise having to defend themselves against possible deportation.

Our Supreme Court Chief Justice, the WSBA, and prosecutors around the country — including in California, Colorado, Massachusetts, and New York—have publicly condemned immigration enforcement actions in courthouses because of the chilling effect on immigrants. However, as the University of Washington’s Center for Human Rights has recently reported, some prosecutors in Washington have proactively shared information and reported people to ICE. Many prosecutors know firsthand that the specter of county involvement in ICE arrests harms public trust in law enforcement, making people less likely to come forward as crime witnesses or to seek protection because they fear doing so will lead ICE agents to detain and deport them or their family members. As a letter sent by California prosecutors to ICE noted, “[n]o one should fear that their immigration status prevents them from seeking justice, whether as a crime victim or otherwise.”

The proposed amendment seeks to clarify that all lawyers in Washington are prohibited from sharing someone’s personal information in order to facilitate immigration arrests as doing so burdens community members’ access to courts. In Washington State, law enforcement is already prohibited from sharing nonpublic, personal information with immigration authorities, as are state agencies. Extending these prohibitions to all lawyers promotes fairness, public safety, and access to justice for all Washingtonians.

It is a fundamental right of all Washington residents to access our courts. Const. art. I, § 10. Justice system stakeholders must take all possible steps to ensure Washington courts are open, neutral, and accessible to the public, free of restrictions that would otherwise impede the proper administration of justice. The technical amendment comment to RPC 4.4 furthers the intent of the current comment and reflects the need to ensure that all lawyers, including prosecutors, are not contributing to immigration arrests, which actively undermine access to justice. Accordingly, it is appropriate and necessary that the proposed technical amendment to the comment to RPC 4.4 is adopted.

D.    Hearing:

The proponents do not believe a public hearing is needed.

E.     Expedited Consideration:

The proponents believe exceptional circumstances justify expedited consideration of the suggested technical amendment to the comment to RPC 4.4 and request that the Rules Committee proceed to a 30-day comment period. If the Rules Committee deems it necessary to direct the proposed commentary to the WSBA’s Professional Ethics Committee for review, we request that the committee ask that the review be expedited and seek a response within a time frame that circumstances warrant.

F.     Supporting Materials:

1.      Immigration Enforcement at Washington State Courthouses, Washington Immigrant Solidarity Network, August 29, 2019.

2.      Letter From Chief Justice Mary Fairhurst to Commissioner Kevin McAleenan, US Customs and Border Protection, April 15, 2019.

3.      Letter from Chief Justice Mary Fairhurst to Secretary John Kelly, US Department of Homeland Security, March 15, 2017.

4.      Letter from Robin L. Haynes, Washington State Board of Governors to Secretary John Kelly, US Department of Homeland Security, June 1, 2017.

5.      Justice Compromised: Immigration Arrests At Washington State Courthouses, University of Washington Center For Human Rights, October 1, 2019.