(Unfair) Advantage: Damocles’ Sword and the Coercive Use of Immigration Status in a Civil Society
David P. Weber
Creighton University - School of Law
April 21, 2011
Marquette Law Review, Vol. 94, 2011
This article argues that the coercive use of immigration status or “status coercion” in civil proceedings and negotiations is fundamentally unethical and potentially illegal. For attorneys attempting to take advantage of unauthorized immigration status, such conduct very likely violates an attorney's ethical obligations under the Rules of Professional Responsibility and wrongfully takes advantage of an overly vulnerable population. For the judiciary, the article argues for a more proactive approach in maintaining the perception of fairness and justice in civil proceedings for all parties, regardless of immigration status. Additionally, for both legal and lay persons, status coercion may constitute the crime of extortion, and this article establishes how status coercion in most cases fills the required elements of extortion. Part I of the article discusses in reported and unreported decisions the various fora where the described harms most often occur, including specifically commercial disputes, custody litigation and employment law issues where case outcomes have hinged on immigration status, and analyzes the impetus for the harms and the consequences, where appropriate, of the same. Part II of the article looks at ethical obligations, primarily those imposed by the Rules of Professional Responsibility on attorneys and the Model Code of Judicial Conduct for judges. Part II also looks in a more narrow perspective at potential criminal prohibitions and sanctions regulating this type of behavior affecting all parties. Part III suggests potential remedies available to the unauthorized immigrant in both civil and immigration proceedings when faced with status coercion. Part IV concludes that current ethical and legal obligations imposed on community members should be sufficient to prevent status coercion in commercial and civil contexts in the vast majority of cases. In addition, states should adopt specific rules or issue ethical opinions on point to provide guidance to all attorneys and judges faced with these situations. The article concludes that as unauthorized immigrants are one of the most vulnerable and susceptible populations to harm done to them, the ethical rules governing lawyers and judges should clearly state, and be understood, as prohibiting this type of coercion.
Number of Pages in PDF File: 66
Keywords: Unauthorized, Immigrant, Status, Coercion, Civil, Undocumented, Illegal, Custody, Ethics, Ethical, Model Rules
JEL Classification: K30, K31, K42Accepted Paper Series
Date posted: July 9, 2010 ; Last revised: June 12, 2013
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