3/31/14 Issues in Representing Mentally Disordered Respondents in Immigration Proceedings Christina A. Fiflis Fiflis Law LLC April 1, 2014 For: The Colorado Bar Association Immigration Committee Scope of the Challenge Congress” Bed Mandate: 34,000 daily/400,000 annually ICE: 2-5% with “serious mental illness;10-16% “some encounter” with mental health system 15% with “mental disability” =60,000/year* *Human Rights Watch/ACLU >230 IJs in 55 courts >430,000 matters in FY 2011 BIA: 15 Board Members and about 150 Attorney Advisors BIA: 36,000 matters in FY 2011 CAIR notes recurring challenges in detention include Undetected mental illness: Limitations of initial screenings. Lack of continuity of care. Facilities not designed to deliver comprehensive mental health care: Only brief consults and prescriptions. Decompensation is common. When mental health needs are known: Spotty compliance with transfer and release protocols. Inappropriate use of segregation. 1 3/31/14 Some History of Immigration Laws pertaining to mentally disordered The Immigration Act of 1891, § 1 ch 551, 26 Stat 1084, excluded “all idiots, insane persons, paupers or persons likely to become a public charge [and]persons suffering from a loathsome or a dangerous contagious disease” In 1907 excluded “idiots, imbeciles, feeble-minded persons, epileptics [and] insane persons” Immigration Act of 1907, §2 ch. 1134, 34 Stat 898 By 1917, US excluded “[a]ll idiots, imbeciles, feeble-minded persons, epileptics, insane persons; persons who have had one or more attacks of insanity at any time previously; persons of constitutional psychopathic inferiority” and other persons found to be “mentally . . .defective” Law of February 5, 1917 (Immigration Act of 1917) ch. 29, §3, 39 Stat 874, 875-76 EOIR Policy and Training Initiatives On August 3, 2009, EOIR convened a session on “Competence and Capacity in Immigration Proceedings” at the EOIR Legal Training Conference, attended by IJs, members of the BIA and BIA attorney advisors The Office of the Chief Immigration Judge identified IJs who have experience in presiding over hearings with respondents with mental disabilities available on the IJ mentor list. Judges may contact mentor judges for guidance. EOIR , Competency Standards report (05/11/2010) 2 3/31/14 EOIR initiatives cont’d http://www.justice.gov/eoir/probono/probono.htm EOIR Legal Orientation Program, started in 2003, allows nonprofit organizations to provide information about immigration court procedures and basic immigration law to large groups of detained individuals In July 2010, EOIR initiated an LOP pilot program at the Miami Immigration Court for non-detained respondents identified as having some type of mental disability more expansive than the general LOP program, allowing nonprofit organization provision of LOP services to non-detained respondents, specifically those who have mental health issues EOIR Phase I of Plan to Provide Enhanced Procedural Protection to Unrepresented Detained Respondents with Mental Disorders The announcement for the Phase I plan is here: http://www.justice.gov/eoir/press/2013/ SafeguardsUnrepresentedImmigrationDetainees.html The Phase I plan itself is here: https://dl.dropboxusercontent.com/u/27924754/EOIR %20Protections.pdf The Executive Office for Immigration Review (“EOIR”) is committed to identifying detained unrepresented respondents in immigration custody who are not competent to represent themselves in removal and custody redetermination proceedings. EOIR will not proceed in the case of any detained unrepresented respondent determined to be incompetent to represent him- or herself in a removal or custody redetermination proceeding until appropriate procedural protections and safeguards are in place. 3 3/31/14 EOIR Phase I (1) IJ must assess competence (competence is presumed; but rebutted if IJ finds by a preponderance of the evidence that the respondent is unable because of a mental disorder to perform functions necessary to represent him/herself). Three stages to screen for and decide issues of competence: – Detecting indicia; if “bona fide doubt” (substantial evidence) move to stage 2 – Conducting judicial inquiry: determine whether “reasonable cause” to believe incompetent: See Sample Advisal – Conducting competency review: evidentiary hearing to determine whether presumption rebutted after finding “reasonable cause” at Stage 2; at this stage referral may be made for MH Evaluation EOIR Phase 1, cont’d Mental health evaluation; – IJ not required to refer for mental health examination, but required to consider whether referral is necessary ; referral appropriate where IJ unable to determine based upon existing evidence of record, whether competent to represent self – Role of MHP to identify and describe for court any cognitive, emotional or behavioral impairments and their effects, if any, on ability to perform the functions required to be competent to represent self in immigration proceeding MHP is fiduciary to COURT; no privilege of privacy or confidentiality between MHP and Respondent; MHP is court witness; MHP report used only to determine competency and may not be used to establish truth of allegations or charges or to establish ineligibility for relief UNLESS DHS obtains the information independently or the Respondent uses the information for any purpose other than to inform re: competency ( 4 3/31/14 EOIR Phase 1, cont’d 2) Articulate a finding on competency and the rationale for the decision, , all findings of fact and conclusions of law and reasoning and analyses therefor weighing the “totality of the evidence” (3) Prescribe the “safeguards” to ensure fundamental fairness of the proceeding based on “totality of facts and circumstances ”,that are necessary to protect the respondent’s “rights and privileges” in the proceeding, including provision of a Qualified Representative – Respondent does not have right to waive presence of qualified representative – Refusal of respondent to cooperate with qualified representative does not negate efforts of the government to provide an appropriate safeguard or protection IJ “should” discuss function R unable to perform, safeguards and protections considered, appropriateness of safeguards provided and articulate the reasoning PHASE 1 does not negate or alter obligations under Franco v. Holder Some INA/Regulatory/Other Provisions re Mental Competency Today, INA 212(a)(1)(A)(iii): makes inadmissible individuals with mental disorders if they demonstrate “behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others” of if they have a history of such behavior that is likely to recur or lead to other harmful behavior 9 FAM 40.11 N13 : 212(d)(3)(A) NIV waiver available subject to conditions proposed by HHS, such as requirement that family member of medical escort accompany 212(g)(3) IV waivers are granted at the discretion of DHS in consultation with HHS; may be subject to conditions proposed by HHS, e.g., bond or family or medical escort INA 240(b)(3):“If it is impracticable by reason of an alien’s mental incompetency for the alien to be present at the proceeding, the Attorney General shall prescribe safeguards to protect the rights and privileges of the alien.” 8 C.F.R. § 1240.10(c): Immigration Judges may not accept an admission of removability from an unrepresented respondent who is incompetent and unaccompanied. The National Detainee Handbook indicates that all detainees “will undergo a thorough medical examination conducted by approved medical examiners within 14 days after [their] arrival. Medical staff or trained officers will also conduct a pre-screening interview to assess [detainees’] physical and mental health as part of the intake process.” Dep’t of Homeland Security, U.S. Immigration and Customs Enforcement, Office of Detention and Removal Operations, National Detainee Handbook 4 (Feb. 2009), available at http://www.ice.gov/doclib/about/offices/odpp/pdf/ice-detention-rpt.pdf . 5 3/31/14 Disclosure of incompetency Comment to Co RPC 1.14: Disclosure of the Client's Condition [8] Disclosure of the client's diminished capacity could adversely affect the client's interests. For example, raising the question of diminished capacity could, in some circumstances, lead to proceedings for involuntary commitment. Information relating to the representation is protected by Rule 1.6. Therefore, unless authorized to do so, the lawyer may not disclose such information. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized to make the necessary disclosures, even when the client directs the lawyer to the contrary. Nevertheless, given the risks of disclosure, paragraph (c) limits what the lawyer may disclose in consulting with other individuals or entities or seeking the appointment of a legal representative. At the very least, the lawyer should determine whether it is likely that the person or entity consulted with will act adversely to the client's interests before discussing matters related to the client. The lawyer's position in such cases is an unavoidably difficult one. ABA Civil Standards Definitions Vulnerable populations (individuals) include children and minors under age 18; elderly persons; survivors of torture or violence; persons with mental or physical disabilities; pregnant women; persons with serious medical conditions and mental illness; transgender persons; and persons likely to be subject to physical or sexual abuse, manipulation, or severe verbal abuse in a facility. Serious Mental Illness means a substantial disorder of thought or mood that significantly impairs judgment, behavior, capacity to recognize reality or cope with the ordinary demands of life within the detention facility environment and is manifested by substantial pain or disability. It includes the status of being actively suicidal; severe cognitive disorders that result in significant functional impairment; and severe personality disorders that result in significant functional impairment and are marked by frequent episodes of psychosis, depression, or self-injurious behavior. (See ABA Standards on the Treatment of Prisoners Standard 23-1.0, “Definitions.”) Medical evaluation means a comprehensive assessment of a detainee’s medical and mental status, intended to capture information about current illness, ongoing treatment regimens, and risk factors for various forms of illness while in custody. 6 3/31/14 Disability vs. Disordered vs. Diminished Capacity vs. Incompetence vs. . . . EOIR Phase I Plan: Mental Disorders (including Intellectual disability) Rule 1.14: Diminished Capacity CAIR Manual: Mental disability INA/regulations: serious medical condition Mental disabilities include mental illness as well as cognitive or developmental delays since both types of disabilities may lead individuals to be legally incompetent EOIR definition of “Mental Disorder” A significant impairment of the cognitive, emotional, or behavioral functioning of a person that substantially interferes with the ability to meet the ordinary demands of living - EOIR Phase I Plan 7 3/31/14 EOIR Phase 1 Definition of Competence Competence is the ability to perform a function demanded in a particular situation at the defined level. Competence is neither a status nor a state. Competence cannot be observed. Rather, one may observe behavioral signs or indicia that a person may lack the ability to perform a task or function required in a particular situation. Compilation of indicia of mental disorder that can impair competence or reflect impaired competence (Phase 1 and other sources) Past or current evidence: – Mental health treatment – Psychiatric hospitalization – Interventions for self-injurious behavior or suicide attempts – Limited academic achievement – Manifestations of behavior suggesting mental disorder -Respondent’s in-court behavior (e.g., responses to questions) -Attorney-client interactions Comment to CO .RPC 1.14: [6] In determining the extent of the client's diminished capacity, the lawyer should consider and balance such factors as: the client's ability to articulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician. Sources of Indicia – Family members, friends, legal/healthcare/social service providers, caseworkers clergy, detention personnel, others, counsel Form of Indicia – Observed behaviors, letters, government, legal, educational employment, health care records, other verbal or written accounts Other documentary evidence: mental health treatment records, past competency evaluations Comment to CO RPC 1.14: [6] In determining the extent of the client's diminished capacity, the lawyer should consider and balance such factors as: the client's ability to articulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician. Timing of Indicia Considered throughout proceedings; “competence is fluid” 8 3/31/14 EOIR Phase 1 and other sources: indicators of mental health disorders Memory impairment Poor attention/concentration Difficulty communicating thoughts completely or coherently Confused, disorganized, overly simplistic thinking Nonsensical words or actions that suggestion hallucinations or altered version of reality – Seeing or hearing things not present – Paranoid thinking – Grandiose thinking Disorientation Distraction, confusion, not paying attention Poor intellectual functioning Serious depression or anxiety Irrational behavior or speech in court Lack of responsiveness in court If indicia of incompetency EOIR PHASE 1: EOIR will not proceed in the case of any detained unrepresented respondent determined to be incompetent to represent him- or herself in a removal or custody redetermination proceeding until appropriate procedural protections and safeguards are in place. April 23, 2010: New section added to the Immigration Judge Benchbook to “inform the Immigration Judge’s decision-making process in this context. . .Immigration Judges should assist in securing counsel and/or a guardian ad litem to the extent permissible.” The IJ is permitted to contact the Legal Orientation and Pro Bono Program at the BIA or the American Immigration Lawyers Association to recruit a pro bono attorney or to seek the assistance of an LOP provider. EOIR, Immigration Judge's Benchbook, Steps to guide proceedings, note 93. 8 C.F.R § 1240.10; 8 C.F.R. § 1003.10(b): IJs have the authority to act in a manner consistent with the INA and should be flexible where there are mental health concerns If “indicia of incompetency,” the Immigration Judge must make an inquiry into competency. (If indicia of competency there is a presumption of competency.) A qualified representative is provided appropriate safeguards and [other] protections are put in place No right to waive the presence of the qualified representative because it is a safeguard and not a legal right Due Process Concerns: see, Mathews v. Eldridge, 424 U.S. 319 (1976); see also, Dusky v. U.S., 362 U.S. 402 (1960) Immigration Judge’s Benchbook, Mental Health Issues at 14: “where respondents are unable to proceed in light of mental health issues and a corresponding inability to secure adequate safeguards, as required by section 240(b)(3) of the Act . . .” an IJ may consider termination 9 3/31/14 IJ Benchbook re: Rule of Professional Conduct 1.14 D. Counsel’s Ethical Duties While the American Bar Association’s Model Rules of Professional Conduct are not binding on Immigration Judges, they do illustrate the special obligations required of private counsel where clients have or are reasonably believed to have diminished capacity. Rule 1.14 provides ...” Termination 8 C.F.R § 1240.10; 8 C.F.R. § 1003.10(b): IJs have the authority to act in a manner consistent with the INA and should be flexible where there are mental health concerns IJ BENCHBOOK SUGGESTS TERMINATION: , Mental Health Issues at 14: “where respondents are unable to proceed in light of mental health issues and a corresponding inability to secure adequate safeguards, as required by section 240(b) (3) of the Act . . .” an IJ may consider termination Due Process Concerns: see, Mathews v. Eldridge, 424 U.S. 319 (1976); see also, Dusky v. U.S., 362 U.S. 402 (1960) Mental competence is necessary to protect fairness and accuracy of proceedings and is precondition for exercise of established statutory and procedural due process rights during proceedings 10 3/31/14 SAMPLE IJ ADVISAL “I am an Immigration Judge. My job is to decide whether you will be allowed to stay in the US. I am going to hold a hearing to gather information from you and the representatives of the Government to help me decide whether you will be allowed to stay in the US. It is important that you understand what is happening in court. It is important that you understand what is being said about you. It is also important that you be able to tell your side of the story. To make sure you are able to understand and tell your story, I am going to ask some questions about you and your case. I will use this information to decide whether you will need any help in the hearing. Can you explain to me what I just said in your own words? Do you have any questions before we begin today?” Detention Standards 2000 NDS http://www.ice.gov/detention-standards/ 2000/ 2008 PBNDS http://www.ice.gov/detention-standards/ 2008/ 2011 PBNDS http://www.ice.gov/detention-standards/ 2011 DSII (ABA Detention Standards Implementation Initiative) reports: www.ice.gov/foia/library ABA Civil Detention Standards 11 3/31/14 Performance-Based National Detention Standards (PBNDS) Performance-Based National Detention Standards (PBNDS) are the standards developed and promulgated by ICE to govern the treatment of persons subject to ICE custody pending immigration proceedings and removal. The PBNDS set forth the outcomes and performance measures that must be met in order to satisfy particular standards. They are based on American Correctional Association standards for pre-trial criminal detention. ICE PBNDS 2011 February 2012: ICE released revised PBNDS 2011 DHS/ICE civil detention principles (not standards) are incorporated into its Statements of Objectives (SOOs) used in soliciting bids for selecting new detention facilities PBNDS Section 4.3 Medical Care; www.ice.gov/doclib/detention-standards/ 2011/medical_care.pdf NDS, PBNDS 2000 still pertain at some facilities 12 3/31/14 PBNDS : Medical Care 4.3 Medical Care: ensures detainees have access to appropriate and necessary medical, dental and mental health care, including emergency services 22 pages Initial Medical & Mental Health Screening Standard: Each newly admitted detainee, including transfers, will receive a documented medical, dental, and mental health screening upon intake and, within 14 days of arrival, a comprehensive health appraisal by qualified personnel in a private setting as practicable to ensure safety. Standard: Detainees with suspected or known mental health concerns will be referred as needed for evaluation, diagnosis, treatment, and stabilization. 13 3/31/14 Ongoing Medical Access Standard: Health care services will be administered by the health administrative authority, and clinical decisions will be the sole province of the clinical medical authority. Standard: Health care services will be provided by a sufficient number of appropriately trained and qualified personnel, whose duties are governed by thorough and detailed job descriptions and who are verifiable licensed, certified, credentialed, and/or registered in compliance with applicable state and federal requirements. Standard: Informed consent standards will be observed and adequately documented. Staff will make reasonable efforts to ensure that detainees understand their medical condition and care. Medical Records Standard: Information about each detainee’s health status will be treated as confidential, and health records will be maintained in accordance with accepted standards separately from other detainee detention files and be accessible only in accordance with written procedures and applicable laws. Health record files on each detainee will be well organized, available to all practitioners, and properly maintained and safeguarded. 14 3/31/14 Decision to Segregate Standard: Any detainee who represents an immediate, significant threat to safety, security or good order will be immediately controlled by staff and, for cause and with supervisory approval, placed in Administrative Segregation. Standard: A security supervisor shall conduct a review within 72 hours of the detainee’s placement in Administrative Segregation to determine whether segregation is still warranted. The review shall include an interview with the detainee. A written record shall be made of the decision and the justification. Standard: A security supervisor shall conduct the same type of review after the detainee has spent seven days in Administrative Segregation, and every week thereafter, for the first 60 days and (at least) every 30 days thereafter. Rights in Segregation Ø Standard: Generally, these detainees shall receive the same privileges as are available to detainees in the general population, depending on any safety and security considerations for detainees, facility staff and security. Ø Standard: In accordance with the Detention Standard on Visitation, detainees in SMUs may not be denied legal visitation. Ø Standard: Detainees in SMUs shall have access to legal materials, in accordance with the Detention Standard on Law Libraries and Legal Material. Ø Standard: Detainees in Special Management Units will have access to the same health care services as detainees in the general population. Ø Standard: A health care provider shall visit every detainee in an SMU at least once daily. Detainees shall be provided medications as prescribed for them. Detainees will have access to regularly scheduled sick call regardless of housing assignment. Ø Standard: A detainee’s mental health status shall be reviewed and documented at least once every 30 days. 15 3/31/14 ICE Directive re: Segregation In September 2013, as part of our continuous review of detention policies and procedures, ICE issued a new directive, Review of the Use of Segregation for ICE Detainees. This directive enhances existing procedures for ICE review and oversight of facility decisions to place detainees in segregation for any extended period of time, and in the case of detainees for whom heightened concerns exist based on health issues or other special vulnerabilities, for any length of time. The Directive complements the requirements in ICE detention standards. Detention standards require facilities to review the status of a detainee’s segregation at regular intervals in order to assess the continued need for segregation. The Directive enhances these existing procedures by requiring facilities to notify ERO leadership, specifically Field Office Directors (FODs), at frequent intervals of segregation placements and to conduct reviews regarding whether placement continues to be appropriate in each case. This additional layer of review enhances agency oversight of individual facility segregation determinations. The Directive also expounds upon the specific factors to be taken into consideration during such reviews, and establishes a further level of review of FODs’ evaluations by ICE headquarters. ______________________________________________________________________________________ Statement for the record of ICE Office of Detention Policy and Planning Assistant Director Kevin Landy for a Senate Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights and Human Rights hearing titled “Reassessing Solitary Confinement II: The Human Rights, Fiscal, and Public Safety Consequences” Release Date: February 25, 2014 216 Hart Senate Office Building Medical Housing Standard: If there is a specific area, separate from other housing areas, where detainees are admitted for health observation and care under the supervision and direction of health care personnel, the following minimum standards shall be met: ¡ Clearly defined scope of care services available; ¡ Physician on call or available 24 hours per day; ¡ Health care personnel are on duty 24 hours per day when patients are present; ¡ All patients within sight or sound of a staff member; ¡ Housing record that is a separate and distinct section of the complete medical record; and ¡ Compliance with all established guidelines and applicable laws. 16 3/31/14 Isolation and Restraints Standard: The clinical medical authority may place in medical isolation a detainee who is at high risk for violent behavior because of a mental health condition. The clinical medical authority must provide for reassessment on a daily basis the need for continued medical isolation for the health and safety of the detainee. Standard: Restraints for medical or mental health purposes may be authorized only by the facility’s clinical medical authority, after reaching the conclusion that less restrictive measures are not appropriate. Involuntary Psychotropic Medication Standard: Involuntary administration of psychotropic medications to detainees shall comply with established guidelines and applicable laws and only pursuant to the specific, written and detailed authorization of a physician. When psychotropic medication is involuntarily administered, it is required that the administrative health authority contact DRO Management, who shall contact respective DHS/ICE Chief Counsel. 17 3/31/14 Facility Transfer Standard: Detainee medical needs shall be taken into account prior to a transfer. The Division of Immigration Health Services (DIHS) may recommend that a detainee in need of specialized or long-term medical care be transferred to a facility that can better meet those needs. The DIHS Medical Director or designee must approve transfers for medical reasons in advance. Medical transfers shall be coordinated through the local ICE/DRO office of jurisdiction using established procedures. Standard: ICE/DRO will consider whether the detainee is represented by legal counsel. In such cases, ICE/DRO shall consider alternatives to transfer, especially when the detainee is represented by local, legal counsel and where immigration court proceedings are ongoing. Standard: When a detainee is transferred to another facility, the transferring facility will send a completed medical transfer summary and other medical documentation as appropriate to the receiving facility. Access to Legal Services Standard: Each detainee may meet privately with current or prospective legal representatives and their legal assistants. Standard: Each facility shall permit legal visitation seven days a week, including holidays, for a minimum of eight hours per day on regular business days (Monday through Friday), and a minimum of four hours per day on weekends and holidays. 18 3/31/14 Access to Law Library Standard: Each facility shall provide a properly equipped law library in a designated, well-lit room that is reasonably isolated from noisy areas and large enough to provide reasonable access to all detainees who request its use. Standard: Each detainee shall be permitted to use the law library for a minimum of five hours per week. Required materials. Release Practices Standard: Upon transfer to another facility or release, the medical provider shall ensure that all relevant medical records and at least 7 days’ (or, in the case of TB medications, 15 days’) supply of medication shall accompany the detainee. Standard: When a detainee is released from the facility, the facility shall ensure that the release point is an acceptable one. Facilities that are not within a reasonable walking distance of, or that are more than one mile from, public transportation shall transport detainees to local bus/train/subway stations prior to the time that the last bus/train leaves such stations for the day. If public transportation is within walking distance of the detention facility, detainees shall be provided with an information sheet that describes those transportation services. Upon release, detainees shall also be provided with a list of shelter services available in the immediate area. Prior to their release, detainees shall be given the opportunity to make a free phone call to a friend or relative to arrange for pick up from the facility. 19 3/31/14 Detention complaints Depending on the severity of the issue, advocates can bring complaints at various levels within ICE and DHS. ¡ Facility level ¡ Field Office ¡ National ICE – Public Advocate ¡ Oversight – CRCL, OIG ¡ NGO networks Advocacy Steps Facility grievance process : Informal Formal Office of the Public Advocate: http://www.ice.gov/exec/forms/pa-contact/pacontact.asp Field Liaisons - http://www.ice.gov/about/offices/ enforcement-removal-operations/publicadvocate/ contact.htm ICE Community and Detainee Helpline, 1-888-351-4024 20 3/31/14 Oversight Mechanisms By mail or phone: Office for Civil Rights and Civil Liberties U.S. Department of Homeland Security Building 410, Mail Stop #0190 Washington, D.C. 20528 Phone: 202-401-1474 Toll Free: 1-866-644-8360 TTY: 202-401-0470 Toll Free TTY: 1-866-644-8361 Fax: 202-401-4708 DHS Office of Civil Rights and Civil Liberties Send complaints to: Jeffrey Blumberg Director, Compliance Branch Office for Civil Rights and Civil Liberties U.S. Department of Homeland Security 245 Murray Drive, S.W., Building 410, Mail Stop 0190 Washington, DC 20528-0190 By e-mail: [email protected] Office of the Inspector General Send complaints to: Charles K. Edwards Acting Inspector General Department of Homeland Security 245 Murray Drive, SW, Building 410 Washington, DC 20528 ABA Civil Detention Standards Adopted by the ABA 2012 “The American Bar Association (ABA) civil immigration detention standards are intended to provide a tool that will guide DHS in the transition to a comprehensive civil detention system that does not primarily make use of jails and jail-like facilities to house the persons in its custody. Although the ABA recognizes the logistical and financial challenges involved in the expeditious and complete transformation to a civil detention system, it nonetheless urges DHS to adopt these standards quickly and to begin to reconstitute its infrastructure and reform its system based upon these standards.” “The ABA civil immigration detention standards are not intended to be an exhaustive compilation of all the standards that might apply to persons subject to DHS custody. Rather, they are intended to provide DHS with a blueprint for developing civil detention standards, particularly those that implicate access to justice and other ABA priorities. The ABA standards are intended to assist DHS/ICE in its “real time” efforts to reform the US immigration detention system. The ABA standards should be used by DHS/ICE to update the PBNDS and to guide its comprehensive transition to a civil detention system.” “The ABA standards are meant to apply to persons subject to DHS custody, while recognizing the need to take more restrictive measures for the limited percentage of residents who may represent a danger to others or to themselves. The ABA offers these standards in order to minimize the risk of civil and human rights violations against immigration detainees. Facilities that do not meet the standards should not house DHS detainees.” 21 3/31/14 Matter of M-A-M 25 I&N 474 (BIA 2011): “The test for determining whether an alien is competent to participate in immigration proceedings is whether he or she: has a rational and factual understanding of the nature and object of the proceedings, can consult with the attorney or representative if there is one, and has a reasonable opportunity to examine and present evidence and cross-examine witnesses.” (at 479) A respondent is presumed to be competent to represent him- or herself in a removal and custody redetermination proceeding. See, e.g., M-A-M-, 25 I&N Dec. at 479. EOIR Phase 1 Plan at 2: The presumption of competence to represent oneself is rebutted if an Immigration Judge finds, by a preponderance of the evidence, that the respondent is unable because of a mental disorder to perform any of the functions listed in the definition of competence to represent oneself. DHS has obligation to submit indicia of incompetency in its possession, particularly for detainees. M-A-M- at 480; 8 C.F.R. § 1240.2(a). Franco-Gonzalez v. Holder, No. 10-02211 (C.D. Cal Apr. 23, 2013) Class Action Lawsuit brought by co-counsel, the ACLU of Arizona with the ACLU of Southern California, ACLU Immigrants' Rights Project, ACLU of San Diego, Public Counsel, Mental Health Advocacy Services, the Northwest Immigrant Rights Project and Sullivan & Cromwell, LLP, seeking relief for mentally ill immigrants detained in Arizona, California and Washington by requiring the federal government to provide independent competency evaluations for individuals who may be suffering from a mental illness and to appoint counsel for those who cannot represent themselves on account of their disability. (initially brought v. Napolitano) 22 3/31/14 Franco case history December 27, 2010: The United States District Court for the Central District of California ordered the government to provide legal representation to two named Plaintiffs both of whom had serious mental disabilities that rendered them incompetent to represent themselves. This was the first published opinion ever requiring the government to provide legal representation to a non-citizen in immigration proceedings. www. aclu-sc.org May 4, 2011:U.S. District Court Judge Dolly Gee noted “the absence of any systemic guidelines setting forth what is a ‘reasonable accommodation’ for unrepresented mentally incompetent aliens.” See Franco-Gonzales v. Holder, — F.Supp.2d —-, 2011 WL 5966667, at *12 (C.D. Cal. May 4, 2011) and ordered representation for one of the named Plaintiffs, ruled that his father (who has no legal training and speaks little English) could not be forced to act as his lawyer, and ordered the government to provide him with a bond hearing. Shortly afterward, he was released from immigration detention. In late November 2011, Judge Gee granted class certification to the detainees in the lawsuit (individuals with severe mental disorders currently detained in California, Washington, and Arizona). Franco-Gonzales v. Holder, No. CV 10-02211 (Order Re: Plaintiffs’ Motion for Class Certification) (Dkt. 348) (Nov. 21, 2011). In December 2011, the Court ordered the government to locate class members and provide Plaintiffs’ counsel with information permitting them to protect against unlawful removal. February, 2013: The proceedings were stayed so that the parties could pursue a potential settlement. (Order Staying Proceedings) (Dkt. 372) (Feb. 13, 2012). The Court ordered that certain immigrant detainees with severe mental disabilities in Arizona, California and Washington be provided “Qualified Representatives” at government expense in removal and bond proceedings. Court ordered government to provide bond redetermination hearing for those detained more than 180 days; found that M-A-M fails to provide sufficient safeguards; that M-A-M allows representation by family member/close friend to assist respondent, but no safeguard that such person(s) are qualified to provide such assistance to mentally incompetent person DHS memos one day before court order ICE and EOIR issued memos on April 22, 2013, just one day before a permanent injunction issued from federal district Judge Dolly Gee (C.D. Ca.) for a permanent injunction in Franco-Gonzalez v. Holder, 10 CV 02211 DMG (C.D. CA August 2, 2010), requiring the government to appoint counsel and provide bond hearings for detained seriously mentally ill noncitizens in Arizona, California and Washington. The Department of Justice (DOJ) and Department of Homeland Security (DHS) announced new safeguards to protect the rights of immigrants with mental disabilities who are in detention and facing deportation. The announcement by DOJ and DHS made the California judge’s order apply nationwide. EOIR Memo The EOIR April 22, 2013 memo required Immigration Judges to implement several procedures to provide the following protections for mentally incompetent individuals: Competency Hearings: Immigration Judges must conduct competency hearings when medical records or other evidence reflects that the individual appearing in immigration court may have a serious mental disorder or condition causing the individual to be unable to represent himself/herself in removal proceedings. Mental Competency Examinations: Immigration Judges may order an independent mental competency examination and the production of a psychiatric or psychological report if unable to decide whether an individual is competent to represent himself or herself following a competency hearing. EOIR will be working with DHS to obtain these reports. Although the Immigration Judge will make the ultimate decision regarding competency, the independent evaluation will assist in this determination. Appointment of Counsel: Immigration Judges may appoint counsel to represent an individual found to be mentally incompetent in removal and/or bond proceedings. EOIR will provide qualified legal counsel in such situations. ICE Memo The April 22, 2013 ICE memo directs the establishment of procedures to ensure that mentally incompetent noncitizens in ICE detention are identified and that information about these individuals is provided to the immigration court. By sharing this information, the immigration judges hearing cases involving seriously mentally ill respondents will be able to rule on their competency and invoke the new EOIR procedures for appointment of counsel. Identification and Assessment Procedures: As of April 22, 2013, all immigration detention facilities that are staffed by ICE Health Service Corps are required to develop procedures to screen every immigration detainee when he or she enters the detention center. Detainees also will receive a more thorough medical and mental health assessment within 14 days of entering the detention facility. In the case of private detention centers where ICE holds detainees, DHS staff is required to begin work immediately with the detention facilities' medical staff to develop procedures to identify detainees with serious mental conditions. The required procedures include creating a national telephone hotline for detainees and family members to report and provide information about those detained. Once a detained individual is identified, ICE will request that either a qualified mental health provider complete a mental health review report or the facility provide the detainee's medical records to ICE for review. Information-Sharing: DHS staff must also immediately develop procedures to transmit all documents related to the mental competency of an unrepresented detained individual to the ICE attorney (Office of Chief Counsel - OCC) in order for OCC to inform the immigration court of the individual's mental incompetency. The procedural protections announced included: conducting screenings for serious mental disorders when a detainee enters a detention facility; providing competency hearings and independent psychological or psychiatric evaluations of inmates; appointing qualified representatives to immigrant detainees who cannot afford to hire an attorney; and providing bond hearings to mentally incompetent individuals who have been detained for at least six months (regardless of whether those individuals would otherwise be subject to mandatory detention under the immigration laws). This is the first time that the government has agreed to pay for legal representation for respondents before the immigration court. The Senate bill on comprehensive immigration reform also contains provisions providing government funds for representation not only for the mentally incompetent but also for minors in immigration court proceedings. The ICE memo specifies that all immigration detention facilities must have the procedures in place by December 31, 2013. 23 3/31/14 Franco v. Holder Settlement EOIR will provide a qualified legal representative to any detained, unrepresented alien in a removal or custody redetermination proceeding found to be incompetent to represent him-or herself Franco Settlement: appointed representation The ABA’s Immigration Justice Project (IJP) in San Diego was recently awarded the first Department of Justice (DOJ) contract to provide direct legal representation services to detained respondents in immigration proceedings who suffer from mental disability. This contract, a product of the FrancoGonzalez v. Holder litigation, is a pilot project that DOJ will be implementing nationally, using IJP as a practice model. RMIAN contract 24 3/31/14 CAIR examples of Safeguards Examples: Enhanced service requirements. 8 C.F.R. § 103.5a(c) (2). Prohibition on accepting admissions of removability. 8 C.F.R. § 1240.10(c). Participation of family, friends, or a guardian. 8 C.F.R. §§ 1240.4, 1240.43. Waiving respondent’s presence/testimony. M-A-Mat 483. Docketing the case to allow for mental health treatment (“restoration” approach). M-A-M- at 483. “Alternatives” and “other options.” M-A-M- at 483. CAIR/IAN Suggested Strategic Considerations Presence of an attorney: Often necessary, but not sufficient safeguard. Anticipate DHS counsel’s positions on: Presence of an attorney; Incompetency finding (and evaluations for detainees); Safeguards. 25 3/31/14 Client’s goal: Treatment, reunion with family. Mental health professionals’ recommendations: Release to structured therapeutic environment. Strategy: Mandamus action in federal district court. ICE’s actions: Transfer, abrupt release. Interventions: Transport to home state, ensure supply of medications, reunite with family, facilitate community-based mental health care. Transportation to housing or health care settings. ERO can provide up to a $250 “release gratuity” for certain “long-term” indigent detainees. See Memo on “Release Gratuity Program,” Acting ICE Director Victor Cerda (2/18/2005), available at www.ice.gov/foia/library. 26 3/31/14 CAIR Suggested Strategic Considerations, cont’d Should I initiate a competency inquiry? Assessing “indicia”: Fluctuating capacities. “Wrong” decisions v. “dangerous” decisions. Deliberation v. confusion. Be alert to cultural differences and language barriers. What is the client unable to do that must be done to achieve the goal? What safeguards could be applied to fill in those gaps? What is the risk v. reward of putting competency at issue at this stage of the proceedings? If risky, can the protections the safeguards would provide be achieved in other ways? Do not be passive: Have a plan and be assertive! Tell the Immigration Judge how to assess competency, what safeguards to apply, and why. CAIR Suggested Strategic Considerations, cont’d Termination: Required where necessary safeguards are unavailable or cannot be implemented. See IJ Benchbook: Mental Health Issues. Be wary of administrative closure: Danger of indefinite detention. Guardians ad litem: IJs may or may not have the authority to appoint GALs in removal proceedings. ¡ What is the problem you want a GAL to solve? ¡ Will the appointment of a GAL actually solve this problem? ¡ If it will, is it “necessary,” or are there alternative safeguards/ approaches that would also solve the problem? ¡ ABA Model Rule 1.14 & Comment: Variety of “protective action,” “trauma” of guardianship, “least restrictive action.” 27 3/31/14 Post-detention/Relief Plan Provide a specific, documented release plan addressing the client’s needs, Including: Housing (supportive/homeless shelters) Access to medical/mental health care Counseling services Medication management and supervision Support network: Family, Public benefits Non-profit organizations associated with client’s religion, ethnicity/nationality/status as a crime victim Locating Mental Health Care Resources * What is the client’s immigration status? Out-of-status Lawful Permanent Resident Refugee/Asylee/ U Visa/T Visa • Limited to non-profit sector, free clinics, etc. • May also be eligible for benefits through a state or county mental health agency (e.g., Virginia’s Community Services Boards) • May be eligible for social services and benefits provided through DHHS’s Office of Refugee Resettlement 28 3/31/14 Relief issues 1. Service of NTA: – 8 C.F.R. § 103.8(c)(2)(i)-(ii): (ii) . . . In the case of mental incompetency, whether or not confined in an institution. . . service shall be made upon the person with whom the incompetent . . . resides; whenever possible, service shall also be made on the near relative, guardian, committee or friend. ` Matter of E-S-I-: “where DHS is aware of indicia of incompetency” even if the IJ has not made a finding of incompetence. 2. PD: Termination/Administrative Closure/Stipulation: Criminal history Humanitarian considerations Post-detention plan Support network Fear Based Protection: Asylum WT, CAT Prosecutorial discretion: DHS likely to require evidence of the client’s postdetention plans. 3. 8 C.F.R. § 1240.10(c): “The [IJ] shall not accept an admission of removability for an unrepresented respondent who is incompetent . . .” Relief issues, cont’d Suggestions from IAN: Utilize mental health and medical records to establish presence and hardship Affidavits of family members may be substituted for your client’s own statement Remind the Court that client is not able to recall all of the details of his/her personal history because of his/her mental health status – over and over again CAT may also be an option where the country of origin uses questionable practices in treating mentally ill individuals. See, for example: •Villegas v. Mukasey, 523 F.3d 984 (9th Cir. 2008) •Disability Rights International •UN Special Rapporteur Report re Mental Health Abuses = Torture One Year Bar: Mental Illness constitutes an exception to the one-year bar for asylum ! see, 8 C.F.R. § 1208.4(a)(5) Reasonable possibility of other serious harm upon removal See, 8 C.F.R. 208.13(b)(1)(iii) Waive the Subjective Element: • Possible request to IJ to waive the subjective element Possible articulations of the PSG: – “Mexican psychiatric patients who suffer from mental illness” – From Temu v. Holder: “Individuals with bipolar disorder who exhibit erratic behavior” 29 3/31/14 Safeguards examples -Stipulation to eligibility with DHS to allow for testimony to be limited -Respondent not be required to testify given the mental health concerns; -Issues in Court that could potentially aggravate Respondent discussed in a sidebar -Participation of a guardian in the proceedings ; Relative (e.g., mother) present and available to testify (also can submit affidavit) concerning his personal history, mental health history; Identification and appearance of a family member or close friend who can assist respondent and/or legal representative :8 C.F.R. §§ 1240.4, 1240.43. -Docketing or managing case to enable respondent to obtain legal representation and/or medical treatment intended to restore competency M-A-M- at 483. -Continuance of case for good cause -Closing the hearing to the public -Waiving the respondent’s appearance/testimony; M-A-M- at 483 -Assistance with development of the record, including examination and cross-examination of witnesses -Reserving appeal rights for the respondent -Where respondent not competent to sign his application, testify on his own behalf, submit a motion to terminate proceedings based on the mental health concerns and inability to formulate an attorney/client relationship; if denied, , submit request for relief on the documents admitted into evidence and oral argument made on the record Comment to Co RPC 1.14: Taking Protective Action* [5] If a lawyer reasonably believes that a client is at risk of substantial physical, financial or other harm unless action is taken, and that a normal client-lawyer relationship cannot be maintained as provided in paragraph (a) because the client lacks sufficient capacity to communicate or to make adequately considered decisions in connection with the representation, then paragraph (b) permits the lawyer to take protective measures deemed necessary. Such measures could include: consulting with family members, using a reconsideration period to permit clarification or improvement of circumstances, using voluntary surrogate decision making tools such as durable powers of attorney or consulting with support groups, professional services, adultprotective agencies or other individuals or entities that have the ability to protect the client. In taking any protective action, the lawyer should be guided by such factors as the wishes and values of the client to the extent known, the client's best interests and the goals of intruding into the client's decision making autonomy to the least extent feasible, maximizing client capacities and respecting the client's family and social connections. *not all jurisdictions have adopted Model Rules 30 3/31/14 Resources Overview EOIR, “Phase I of Plan to Provide Enhanced Procedural Protections to Unrepresented Detained Respondents with Mental Disorders” (Dec. 31, 2013), http://immigrationreports.files.wordpress.com/2014/01/eoir-phase-iguidance.pdf AILA Document #13123160 Franco Settlement/EOIR Memo April 22, 2013: John Morton, “Civil Immigration Detention: Guidance for New Identification and Information-Sharing Procedures Related to Unrepresented Detainees with Serious Mental Disorders or Conditions, http://www.ice.gov/doclib/detention- reform/pdf/ 11063.1_current_id_and_infosharing_detainess_mental_disorders.pdf : requires Immigration Judges to implement several procedures to provide the following protections for mentally incompetent individuals: Competency Hearings: Immigration Judges must conduct competency hearings when medical records or other evidence reflects that the individual appearing in immigration court may have a serious mental disorder or condition causing the individual to be unable to represent himself/herself in removal proceedings. Mental Competency Examinations: Immigration Judges may order an independent mental competency examination and the production of a psychiatric or psychological report if unable to decide whether an individual is competent to represent himself or herself following a competency hearing. EOIR will be working with DHS to obtain these reports. Although the Immigration Judge will make the ultimate decision regarding competency, the independent evaluation will assist in this determination . Appointment of Counsel: Immigration Judges may appoint counsel to represent an individual found to be mentally incompetent in removal and/or bond proceedings. EOIR will provide qualified legal counsel in such situations. Brian M. O’Leary, “Nationwide Policy to Provide Enhanced Procedural Protections to Unrepresented Detained Aliens with Serious Mental Disorders or Conditions” (Apr. 22, 2013), http://nwirp.org/Documents/ImpactLitigation/ EOIRDirective04-22-2013.pdf ICE Performance Based National Detention Standards-2011 ABA Proposed Civil Standards adopted August 2012 EOIR IJ Benchbook Section re: Mental Health Issues: http://www.justice.gov/eoir/vll/benchbook/tools/MHI/index.html Rules of Professional Conduct International Human Rights Law including UN Special Rapporteur Report on Mental Health and Torture: http://www.ohchr.org/Documents/HRBodies/HRCouncil/ RegularSession/Session22/A.HRC. 22.53_English.pdf Sample briefs in support of U/T/VAWA (eg where mental illness triggered by abuse as child or severe trauma), Asylum and Withholding, Protection Under CAT can be found in the Appendix to CAIR Coalition’s Mental Health Practice Manual: www.caircoalition.org – Pro Bono Resources tab Preliminary 31 3/31/14 Additional Resources EOIR’s Immigration Law Advisor: Article by Judge Mimi Tsankov: Incompetent Respondents In Removal Proceedings: http://www.justice.gov/eoir/vll/ILA-Newsletter/ILA%202009/ vol13no4.pdf Legal Action Center and the University of Houston Law Center Immigration Clinic Practice Advisory: Representing Clients With Mental Competency Issues under Matter of M-A-M (November 2011) ww.legalactioncenter.org/practice-advisories/representing-clients-mentalcompetency-issues-under-matter-m-m Texas Appleseed Reports www.texasappleseed.net TASC: Training & Advocacy Support Center: www.ndrn.org (National Disability Rights Network) Human Rights Watch www.hrw.org/ Public Counsel: Public Counsel Law Center www.publiccounsel.org/ CAIR’s Practice Manual for Pro Bono Attorneys Representing Detained Clients with Mental Disabilities in Immigration Court (2013);http://www.caircoalition.org/pro-bono-resources House Judiciary Committee’s Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law, Hearing on Problems with Immigration Detainee Medical Care, June 4, 2008, Statement by Homer Venters, M.D. ICE Memo December 11, 2006 : Discretion in Cases of Extreme or Severe Medical Concern IAFMHS: International Association of Forensic Mental Health Issues The Consensus Project: consensusproject.org The National Center for PTSD at the Veterans Administration: http://www.ptsd.va.gov/ The National Alliance for the Mentally Ill - basic information and advocacy around issues of mental illness - http://www.nami.org Dep’t of Homeland Security, U.S. Immigration and Customs Enforcement, Office of Detention and Removal Operations, National Detainee Handbook 4 (Feb. 2009), available at http://www.ice.gov/doclib/about/offices/odpp/pdf/ice-detention-rpt.pdf Forms/Building the record ICE Form 60-001 (2/11) Privacy Waiver Authorizing Disclosure to a Third Party Guardianships: State rule appendices; signer on E-28: to view court file and receive a copy of the DAR HIPPA PRIVACY AUTHORIZATION FORM: to obtain medical records for an incompetent detainee, an authorized request under the Health Insurance Portability and Accountability Act can be signed by a “personal representative.” 45 CFR s 64.502(g)(2); http://members.mobar.org/pdfs/publications/public/HIPPA.pdf http://www.nrc-pad.org: Psychiatric Advance Directives I-813: INS Healthcare Program Authorization for Disclosure of Information IHSC Form 883: request from ICE as a safeguard FOIA G-639; http://www.uscis.gov; accompany with HIPAA-compliant authorization; Track III; If client won’t sign FOIA: find alt method of accessing records I-216, Record of Property Transferred USM 553 or I-794 In Processing Health Screening I-203 Order to Release Alien Remember M-A-M requires DHS to provide any documentation of indicia of mental incapacity: ask DHS to view A file; file E-28 to get DAR Determine whether client sent off site for mental health care Independent Psychological evaluation 32 3/31/14 National Disability Rights Network (NDRN) Training and Advocacy Support Center at NDRN The Training and Advocacy Support Center (TASC) is a centralized repository for training and technical assistance information and coordination for the federally mandated Protection and Advocacy (P&A) and Client Assistance Programs (CAP). TASC is a federal interagency project TASC by the Administration on Intellectual and Developmental Disabilities (AIDD), the Substance Abuse Mental Health Services Administration (SAMHSA), the Rehabilitation Services Administration (RSA), the Social Security Administration (SSA), and the Health Resources Services Administration (HRSA). www.ndrn.org; www.tascnow.com Colorado P&A/CAP agency CAP/PADD/PAIMI/PAIR/PABSS/TBI/PAVA Address: The Legal Center 455 Sherman Street, Suite 130 Denver, CO 80203 Phone: 303-722-0300 Voice/TDD \ 800-288-1376 Fax: 303-722-0720 E-Mail: [email protected] Website: http://www.thelegalcenter.org 33 3/31/14 Colorado Rules of Professional Conduct Preamble Lawyer’s Responsibilities: [1] A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice Colorado RPC 1.14 Client with Diminished Capacity (a) When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian. (c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests. 34 3/31/14 Rule 1. 6 confidentiality (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b). (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to reveal the client's intention to commit a crime and the information necessary to prevent the crime; (3) to prevent the client from committing a fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services; (4) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services; (5) to secure legal advice about the lawyer's compliance with these Rules, other law or a court order; (6) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or (7) to comply with other law or a court order. Rule 1.4 communication 9a)(1)shall Promptly inform the client of any decision or circumstance with respect to which the client's informed consent is required (b)shall [e]explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation 35 3/31/14 Rule 1.0(e)Informed Consent Denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct 8 C.F.R. 10003.101 § 1003.101 General provisions. Authority to sanction. An adjudicating official or the Board of Immigration Appeals (the Board) 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 and the Immigration Courts when such person has engaged in criminal, unethical, or unprofessional conduct, or in frivolous behavior, as set forth in § 1003.102. (a) 36 3/31/14 Preamble [6] As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education In addition, a lawyer should further the public's understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor and sometimes persons who are not poor cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest. Preamble [9] and [12] . . . Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the rules. {12} Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the professional in the public interest which it serves. 37 3/31/14 Scope [14] Some of the Rules are imperatives, cast in the terms “shall” or “shall not” . These define proper conduct for purposes of professional discipline. Others are permissive ad permit the lawyer discretion to exercise professional judgment cast in terms of “May” Scope [16] The Rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for the ethical practice of law. 38
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