Best Practices in Interviewing – an Ethical Conundrum from the Office of an Immigration Clinic

In recent years a term has been coined describing the unfortunate links that have grown up, over the past nearly 20 years, between immigration law and criminal law: crimmigration. Many criminal lawyers have realized the need to educate themselves about the pitfalls they can inadvertently create for their immigrant clients when recommending various plea options, pitfalls that can result in deportation. Crimmigration is also relevant on the other end of representation – during an initial interview. It is at this point in the representation, the beginning, or even “before the beginning” (the person may not yet be a client) when the lawyer, or student-lawyer, is receiving details about the case, that difficult lessons about interviewing need be learned. It is at this point where student supervision in an immigration clinic reminds me of criminal defense.

The theory of criminal defense is, of course, that the state needs to prove its case against the defendant. Because the defendant is not obliged to help the state do that, it is less important that the client tell the lawyer “what happened” than for the lawyer to ascertain “what evidence the state has” against the client. To a large degree, this is also true in immigration defense, particularly so since harsh immigration laws were enacted in 1996 and 1997, both making many more activities deportable, and removing several avenues of defense against deportation. While not arising weekly, often enough, in response to the student telling the potential client during an initial interview, “you can tell me everything, and I need you to; everything you tell me is confidential,” the client does. At this point, the client might reveal details — often about conduct that may have an adverse impact on the case if disclosed to the government–that may even make the person either deportable or wholly ineligible for the relief being sought.

So, can the client “tell you everything?” Do we really want to teach our students to use this terminology? Is it the “right” way to practice? Is it the “best” way? Or is it naïve, essentially serving the government’s interests and not the potential client’s?

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