The Immigration and Naturalization Service (INS)and the Executive Office for Immigration Review (EOIR) have proposed new regulations for investigating complaints and initiating disciplinary proceedings against attorneys and other representatives who practice before the INS, the Board of Immigration Appeals (BIA) and the INS. The new regulations also contain provisions relating to Section 545 of the Immigration and Nationality Act which calls for sanctions against immigration lawyers who engage in frivolous behavior in immigration proceedings. 

Current rules contained at 8 CFR 292.3 require the INS to investigate complaints filed regarding the conduct of attorneys practicing before both the INS and the EOIR. If the INS finds that the investigation establishes that disciplinary proceedings should be instituted, the General Counsel of the INS serves a copy of the written charges upon the attorney and the Office of the Chief Immigration Judge. At the hearing in front of the immigration judge, the government is represented by an INS attorney.

The proposed rule would make several changes to the current system. First, it separates and distinguishes the investigation of complaints and the disciplinary proceedings involving attorneys who practice before the EOIR from the investigation of complaints and disciplinary proceedings for attorneys who practice before the INS. EOIR's general counsel will accept complaints made against attorneys who practice before the BIA or the Immigration Courts. The INS general counsel will be responsible for handling complaints made against attorneys practicing before the INS.

Each general counsel's office will conduct preliminary hearings into complaints received. If the complaint is found to be without merit, no further action will be taken. If misconduct appears to have taken place, the general counsel's office will issue a Notice of Intent to Discipline (NID). The attorney will then have an opportunity to file an answer and request a hearing.

The proposed regulation establishes a new disciplinary process for the adjudication of complaints. After receiving the attorney's answer to the NID, the Director of EOIR will appoint an adjudicating official and, if a hearing is requested, will designate the time and place of the hearing. If no answer is filed by the attorney, then this will be deemed an admission of the allegations and the recommended disciplinary sanctions listed in the NID will become final.

The EOIR General Counsel will represent the government at the hearing unless the proceeding is initiated by INS, in which case the INS General Counsel will represent the government.

The adjudicating official will hold a hearing, take testimony, examine witnesses and report his or her findings and recommendations to a three member Disciplinary Committee. The Committee will be appointed by the Deputy Attorney General with at least one Committee member from EOIR. The Disciplinary Committee will then make a final administrative decision. An attorney's next recourse is to obtain judicial review in federal district court. The new rules also contain provisions providing for the reinstatement of the attorney if the attorney has been expelled or suspended.

The proposed regulations revise and restate the grounds for disciplinary sanctions. There are now just twelve grounds for sanctions, down from the previous fifteen. Ten of the grounds apply to attorneys practicing before INS, BIA and the Immigration Courts. The other two apply to just the BIA and the Immigration Courts. The new rules closely track the American Bar Association's Model Rules of Professional Conduct, the standard that is followed in most states. The rules cover such matters as charging grossly excessive fees, soliciting business, claiming to be a "certified specialist" in immigration and claims of ineffective assistance of counsel.

The proposed rules contain a provision that would provide for the immediate suspension of any attorney who has been convicted of a serious crime, or any attorney who has been disbarred or suspended by a State bar or who has resigned from a State bar under an admission of misconduct. If a person has been immediately suspended in State bar disciplinary proceedings, the proposed rule allows for the initiation of a summary disciplinary proceeding. The summary disciplinary proceeding is designed to allow for the INS and the EOIR to expeditiously bring disciplinary proceedings against practitioners who have engaged in criminal or unethical conduct.

Finally, the proposed rules address the issue of confidentiality concerning complaints, preliminary inquiries, settlement agreements and disciplinary proceedings. Information concerning complaints or preliminary inquiries must remain confidential unless the attorney waives this right. The same is true for resolutions, such as warning letters, admonitions and agreements in lieu of discipline reached prior to the issuance of an NID. On the other hand, NIDs and actions taken subsequent thereto may be disclosed to the public. And disciplinary hearings are also open to the public.

EOIR and the INS claim that the new rules will allow the agencies to investigate complaints and conduct disciplinary proceedings more effectively and efficiently while ensuring the due process rights of practitioners. Nevertheless, attorneys are likely to complain about being subject to two distinct sets of disciplinary rules since not all states follow the Model Rules of Professional Conduct.