Ask, Don't Tell: Ethical Issues Surrounding Undocumented Workers' Status in Employment Litigation

Abstract:     
The presence of an estimated 11.5 million undocumented immigrants in the United States, of which an estimated 7.2 million are working, has become a flashpoint in the emerging national debate about immigration. Given these statistics, it is not surprising that many undocumented workers suffer injuries in the workplace that are typically legally cognizable. Even though undocumented workers are entitled to a number of legal remedies related to their employment, seeking legal relief often raises heightened concerns about the disclosure of their status.

This article explores lawyers’ increasingly complex ethical obligations with regard to a client’s immigration status in the context of employment litigation. The complexity regarding the nature and scope of a lawyer’s obligation is due, in large part, to two recent developments. The first is the United States Supreme Court’s 2002 decision in Hoffman Plastic Compounds v. National Labor Relations Board, in which the Court addressed the scope of lawful relief due to an injured undocumented worker and ultimately left open the question of relevancy of immigration status in general civil litigation. The second factor creating this complexity relates to existing legislation that criminalizes various acts by undocumented immigrants as well as ongoing legislative debates regarding immigration reform that include proposals to criminalize the mere status of undocumented immigrants.

This article addresses both of these developments in the context of lawyers’ ethical obligations and analyzes several questions. First, in light of ethical prohibitions on lawyers assisting in conduct that is criminal or fraudulent, are there any ethical limitations upon a lawyer’s ability to represent undocumented workers in employment litigation? Second, once representing an undocumented worker, how do lawyers balance their duty of confidentiality against disclosure obligations? And, finally, despite this article’s conclusion that the ethical rules do not mandate disclosure of a client’s immigration status, this article explores the strategy of disclosure and whether the decision to disclose belongs to the lawyer or the client. In light of the potentially catastrophic consequences of an improperly made disclosure, lawyers need to be mindful of the special ethical obligations that arise when representing undocumented workers in employment related civil litigation. The article proposes a framework and analysis to guide lawyers through these difficult ethical quandaries.

Number of Pages in PDF File: 62

Keywords: legal ethics, legal profession, attorney misconduct, immigration, alien, citizen, worker, illegal, race, national origin, discrimination, Hoffman, employment, retaliation, NLRA, FLSA, IRCA, Title VII, workers compensation, tort, wage and hour, INS, DHS, BICE, Congress, self-incrimination, preemption

JEL Classification: J00, J22, J23, J30, J38, J49, J7, J70, J71, J78, J79

Accepted Paper Series