A pair of new and interesting twists in the ongoing story of lawyers resisting in-person appearances in Immigration Courts due to COVID-19 surfaced recently. First, an opinion was issued by the N.Y. State Bar Association Committee on Professional Ethics stating that an attorney could withdraw from a case if he/she had a fear of contracting COVID-19 that would interfere with effective representation. The option relied upon New York Rule of Professional Conduct 1.16 which allows withdrawal when “the lawyer’s mental or physical condition renders it difficult for the lawyer to carry out the representation effectively”. (This is analogous to New Jersey RPC 1.16 (a)(2) which states a lawyer “shall withdraw” from representation if “the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.) Both provisions require an application to a tribunal, if the case is before one. Immigration Court is of course a tribunal within the meaning of the RPCs. NY Eth. Op. 1203 (N.Y. St. Bar. Assn. Comm. Prof. Eth.), 2020 WL 6075825, decided October 8, 2020.
Second, the route to an attorney remaining safe during proceedings is more complex in NJ. In June, at a time when Immigration Courts were requiring in-person appearances, a 68-year-old attorney contracted COVID-19 during such a hearing and died. Thereafter another attorney was allowed to appear at a hearing virtually. The court did not, however, allow his client to appear through an independent link and required the client and lawyer to be together for the virtual proceeding. Unfortunately, the lawyer and his wife contracted COVID.
A group of lawyers, including the one who had been infected, filed for injunctive relief to force the court’s administrative body [the Executive Office for Immigration Review (“EOIR”)] to implement remote proceeding. The Court held that both the Association and the individual attorneys had standing to file the suit. Injunctive relief was denied, as being moot, because EOIR has since taken steps to arrange safe video hearings, where attorneys and their clients can appear remotely and separately. American Immigration Lawyers Association, et al. v. Executive Office for Immigration Review, et al., Civil Action No. 20-9748-JMV-JBC, decided October 16, 2020.
Verdict: pandemic pandemonium.