[Federal Register Volume 63, Number 12 (Tuesday, January 20, 1998)]
[Proposed Rules]
[Pages 2901-2911]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-1192]


      
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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 63, No. 12 / Tuesday, January 20, 1998 / 
Proposed Rules  

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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 3 and 292

[EOIR No. 112P; A.G. ORDER No. 2138-98]
RIN 1125-AA13


Executive Office for Immigration Review; Professional Conduct for 
Practitioners--Rules and Procedures

AGENCY: Immigration and Naturalization Service and the Executive Office 
for Immigration Review, Justice.

ACTION: Proposed rule.

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SUMMARY: This rule proposes to change the rules and procedures 
concerning professional conduct for practitioners, which includes 
attorneys and representatives, who practice before the Executive Office 
for Immigration Review (EOIR), which includes the Board of Immigration 
Appeals (the Board) and the Immigration Courts, as well as the rules 
and procedures concerning professional conduct for practitioners who 
practice before the Immigration and Naturalization Service (the 
Service). This rule also includes a provision pursuant to section 545 
of the Immigration Act of 1990, concerning sanctions against attorneys 
or representatives who engage in frivolous behavior in immigration 
proceedings. This rule outlines the authority EOIR has to investigate 
and impose disciplinary sanctions against practitioners who practice 
before its tribunals, and clarifies the authority of the Service to 
investigate complaints regarding practitioners who practice before the 
Service. The procedures by which disciplinary proceedings may be 
initiated before EOIR against practitioners who appear before the 
Service are also outlined. This proposed rule will allow EOIR and the 
Service to investigate, present, and complete disciplinary proceedings 
more effectively and efficiently while ensuring the due process rights 
of the practitioner. This proposed rule will allow frivolous claims to 
be resolved and meritorious cases to be completed quickly and without 
unnecessary delay, since the need for expeditious resolution of these 
cases is critical to and in the best interests of all parties involved.

DATES: Written comments must be received on or before March 23, 1998.

ADDRESSES: Please submit written comments to both Margaret M. Philbin, 
General Counsel, Executive Office for Immigration Review, 5107 Leesburg 
Pike, Suite 2400, Falls Church, Virginia, 22041 and Janice B. Podolny, 
Associate General Counsel, Immigration and Naturalization Service, 425 
I Street, NW., Room 6100, Washington, DC 20536.

FOR FURTHER INFORMATION CONTACT:
Margaret M. Philbin, General Counsel, Executive Office for Immigration 
Review, 5107 Leesburg Pike, Suite 2400, Falls Church, Virginia 22041, 
telephone (703) 305-0470, or Janice B. Podolny, Associate General 
Counsel, Immigration and Naturalization Service, 425 I Street, NW, Room 
6100, Washington, DC 20536, telephone (202) 514-2895.

SUPPLEMENTARY INFORMATION: This rule proposes to amend 8 CFR parts 3 
and 292 by changing the present rules and procedures concerning 
professional conduct for practitioners, which includes attorneys and 
representatives, who practice before the Executive Office for 
Immigration Review (EOIR ), which includes the Board of Immigration 
Appeals (the Board) and the Immigration Courts. Currently, the 
regulations at 8 CFR 292.3 require the Immigration and Naturalization 
Service (the Service) to investigate complaints filed regarding the 
conduct of attorneys and representatives practicing before both the 
Service and EOIR. If the investigation establishes, to the satisfaction 
of the Service, that disciplinary proceedings should be instituted, the 
General Counsel of the Service serves a copy of the written charges 
upon the attorney or representative and upon the Office of the Chief 
Immigration Judge. The present procedure provides for the government to 
be represented by a Service attorney in disciplinary proceedings before 
an Immigration Judge. The decision of the Immigration Judge may be 
appealed to the Board by either party.
    This proposed rule includes several major changes to the current 
regulation. First, it separates and distinguishes the investigation of 
complaints and the disciplinary proceedings involving attorneys and 
representatives practicing before EOIR from the investigation of 
complaints and the disciplinary proceedings involving attorneys and 
representatives practicing before the Service. Under the proposed rule, 
the Office of the General Counsel of EOIR will accept complaints made 
against attorneys or representatives (referred to as ``practitioners'') 
who appear before the Board, the Immigration Courts, or both. The 
Office of the General Counsel of the Service will accept complaints 
made against practitioners who appear before the Service. The Office of 
the General Counsel that receives the complaint will conduct a 
preliminary inquiry. If the Office of the General Counsel of EOIR or 
the Service determines that a complaint is without merit, no further 
action will be taken. If the Office of the General Counsel of EOIR or 
the Service determines, by a preponderance of the evidence, that a 
practitioner has engaged in professional misconduct as set forth in the 
rule, it will issue a Notice of Intent to Discipline to the 
practitioner named in the complaint. When making a decision as to 
whether a Notice of Intent to Discipline should be issued, the Office 
of the General Counsel of EOIR or the Service will consider the 
contents of the complaint (including the nature and recency of the 
conduct or behavior of the practitioner and the harm or damages 
sustained by the complainant), the results of the preliminary inquiry, 
and other relevant information. The practitioner will have an 
opportunity to file an answer and request a hearing.
    Second, the proposed rule establishes a new disciplinary process 
for the adjudication of all complaints. Upon the filing of an answer by 
the practitioner, the Director of EOIR will appoint an adjudicating 
official and, if a hearing is requested, will designate the time and 
place of the hearing. Failure to file an answer in a timely manner will 
be deemed an admission to the factual allegations set forth in the 
Notice of Intent to Discipline. The recommended disciplinary sanctions 
in the Notice of Intent to Discipline then will become final, unless a 
motion to set aside the final order is granted. The Office of the

[[Page 2902]]

General Counsel of EOIR will represent the government in the hearing, 
unless the proceeding is initiated by the Service, in which case the 
Office of the General Counsel of the Service will represent the 
government. The practitioner may be represented by counsel of his or 
her own choice at no expense to the government. The adjudicating 
official will hold a hearing, take testimony, examine witnesses, and 
will report his or her findings and recommendations to the Disciplinary 
Committee. The Disciplinary Committee will be a three-member panel 
appointed by the Deputy Attorney General, with at least one Committee 
member from EOIR. The Deputy Attorney General will designate one 
Committee member to serve as Chairperson. The Disciplinary Committee 
may adopt, modify, or otherwise amend the recommended disciplinary 
sanctions and issue a final order which may apply to practice before 
the Board and the Immigration Courts or the Service, or before all 
three authorities. There is no administrative appeal from the order of 
the Disciplinary Committee. A practitioner who wishes to obtain a 
judicial review of a decision of the Disciplinary Committee can do so 
in federal district court pursuant to 28 U.S.C. 1331.
    Third, the proposed rule includes a reinstatement procedure, which 
will permit a practitioner to petition for his or her reinstatement if 
he or she has been expelled or, in the case of a suspension, if the 
period of suspension has not yet expired.
    Fourth, the proposed rule revises and restates the grounds for 
disciplinary sanctions, which will be reduced from fifteen to twelve by 
combining several previous grounds, eliminating several others, and 
adding two new grounds. Ten of the grounds for disciplinary sanctions 
will apply to all practitioners appearing before the Board, the 
Immigration Courts, and the Service, while the two additional grounds 
will only apply to practitioners appearing before the Board and the 
Immigration Courts. Wherever possible, the grounds have been revised to 
include language that is similar, if not identical, to language found 
in the American Bar Association Model Rules of Professional Conduct 
(1995). EOIR has made these revisions in order to provide practitioners 
with a set of disciplinary standards that are widely known and accepted 
within the legal profession.
    For example, one of the grounds for disciplinary sanctions 
prohibits the charging of grossly excessive fees. This ground has been 
expanded in the proposed rule to include a number of factors to be 
considered in determining whether a fee is grossly excessive, such as 
the time and labor required, the fee customarily charged in the 
locality for similar legal services, and the experience and ability of 
the attorney. The disciplinary ground banning the solicitation of 
professional employment has been revised to permit a practitioner to 
solicit professional employment from a prospective client known to be 
in need of legal services in a particular matter with certain 
restrictions. If the practitioner has no family or prior professional 
relationship with the prospective client, the practitioner must include 
the words ``Advertising Material'' on the outside of the envelope of 
any written communication and at the beginning and ending of any 
recorded communication. This change is made in light of the United 
States Supreme Court decision in Shapero v. Kentucky, 486 U.S. 466 
(1988), in which the Court held that legal advertising, in the form of 
targeted, direct-mail solicitation, is a form of commercial speech 
protected by the First Amendment but subject to regulation, such as the 
requirement that a solicitation letter bear a label identifying it as 
an advertisement. Shapero, 486 U.S. at 477. The disciplinary ground 
regarding false or misleading communications about a practitioner's 
qualifications now includes a prohibition against a practitioner's use 
of the term ``certified specialist'' in immigration and/or nationality 
law, unless the practitioner has been granted such certification by the 
appropriate state regulatory authority or by an organization that has 
been approved by the appropriate state regulatory authority to grant 
such certifications. This amendment is included in order to ensure the 
public that a practitioner who holds himself or herself out as a 
certified specialist does so only after demonstrating proficiency in 
immigration and/or nationality law, and to prevent false, deceptive, or 
misleading advertising.
    One of the two new grounds for disciplinary sanctions concerns 
conduct by a practitioner that constitutes ineffective assistance of 
counsel as previously determined in a finding by the Board or an 
Immigration Judge in an immigration proceeding. A practitioner who is 
the subject of an ineffective assistance of counsel claim heretofore 
has been able to plead mea culpa when an alien raises the issue on a 
motion to reopen with the Board or an Immigration Judge without any 
disciplinary consequences from his or her admissions. In addition, a 
practitioner who is consistently accused of providing ineffective 
assistance of counsel has not experienced any ramifications from such 
repeated claims before the Board or an Immigration Judge. By adding 
this ground to the disciplinary standard, practitioners now may face 
the consequences of claims of ineffective assistance of counsel from 
former clients.
    A factual finding of ineffective assistance of counsel in an 
immigration proceeding will be necessary in order to support the 
issuance of a Notice of Intent to Discipline for this ground. A mere 
grant of a motion to reopen based on a claim of ineffective assistance 
of counsel, absent a specific factual finding of ineffective assistance 
of counsel, will not support the issuance of a Notice of Intent to 
Discipline.
    Federal caselaw has repeatedly addressed the standards to be used 
in determining whether an alien has been the victim of ineffective 
assistance of counsel. Thus, in order for an alien to prevail on a 
claim of ineffective assistance of counsel, he or she must show that 
his or her counsel's performance was so ineffective as to have impinged 
upon the fundamental fairness of the hearing in violation of the fifth 
amendment due process clause. Rabiu v. INS, 41 F.3d 879, 882 (2d Cir. 
1994). See also Lopez v. INS, 775 F.2d 1015, 1017 (9th Cir. 1985) 
(ineffective assistance of counsel is denial of due process only if 
proceeding was so fundamentally unfair that alien was prevented from 
reasonably presenting his case); Paul v. INS, 521 F.2d 194, 199 (5th 
Cir. 1975) (alien must present sufficient facts to allow court to infer 
that competent counsel would have acted otherwise).
    Situations may arise where the Board or the Immigration Judge makes 
a factual finding of ineffective assistance of counsel in an 
immigration proceeding but the adjudicating official in the 
disciplinary proceeding recommends that no disciplinary action be 
imposed upon the practitioner. Since the practitioner in question is 
not a party to an alien's motion to reopen on the basis of ineffective 
assistance of counsel and may not have presented any evidence in his or 
her defense with regard to this issue, the adjudicating official in the 
disciplinary proceeding, upon further development of the facts, may 
determine, notwithstanding the finding of the Immigration Judge or the 
Board, that the attorney's conduct does not rise to a level for which 
disciplinary sanctions should be imposed. Such a ruling is subject to 
review by the Disciplinary Committee, which will then issue a final 
decision in the matter.

[[Page 2903]]

    Fifth, the proposed rule contains a provision that allows for the 
immediate suspension of any practitioner who has been convicted of a 
serious crime, or any practitioner who has been disbarred or is 
currently under suspension or resignation with an admission of 
misconduct by the bar of any state, possession, territory, 
commonwealth, or the District of Columbus, or by any Federal court. 
Such immediate suspension may be imposed upon the practitioner while 
any appeal from the underlying conviction or discipline is pending and 
will continue until such time as a final administrative decision is 
made by the Disciplinary Committee. If a final administrative decision 
includes the imposition of a period of suspension, any time spent by 
the practitioner under immediate suspension will be credited toward the 
period suspension imposed by the final administrative decision. This 
provision will enable EOIR and the Service to take immediate action 
against such practitioners and will provide a certain degree of 
protection to those individuals most likely to be affected by the 
practitioner's misconduct.
    For those practitioners who are immediately suspended, the proposed 
rule allows for the initiation of a summary disciplinary proceeding. 
Such a proceeding will be conducted in a manner similar to the standard 
disciplinary proceeding set forth in this rule, except that a certified 
copy of a judgment of conviction or judgment or order of discipline 
shall serve as a rebuttable presumption of the commission of the crime 
or the professional misconduct, and the burden of proof shall be upon 
the practitioner to show cause why the proposed disciplinary sanctions 
should not be imposed. This summary proceeding will enable EOIR and the 
Service to expeditiously bring disciplinary proceedings against 
practitioners who have engaged in criminal or unethical conduct while 
providing an opportunity for the practitioner to challenge the 
disciplinary charges and proposed sanctions.
    Finally, the proposed rule contains a provision that addresses the 
issue of confidentiality with regard to complaints, preliminary 
inquiries, settlement agreements, and disciplinary proceedings. The 
provision provides that information concerning complaints or 
preliminary inquiries will be confidential unless a waiver is made, but 
in certain circumstances a waiver is not required before information 
can be disclosed. Resolutions, such as warning letters, admonitions, 
and agreements in lieu of discipline reached prior to the issuance of a 
Notice of Intent to Discipline will remain confidential. Notices of 
Intent to Discipline and action taken subsequent thereto, including 
settlement agreements, may be disclosed to the public. Disciplinary 
hearings will also be open to the public. This provision will 
adequately protect practitioners who may be the subject of a complaint 
or preliminary inquiry and also will maintain the integrity and 
credibility of the disciplinary process by keeping the sytem open to 
the public.
    This proposed rule will allow EOIR and the Service to investigate, 
present, and complete disciplinary proceedings more effectively and 
efficiently while ensuring the due process rights of the practitioner. 
This proposed rule will allow frivolous claims to be resolved and 
meritorious cases to be completed quickly and without unnecessary delay 
because the need for expeditious resolution of these cases is critical 
to and in the best interests of all parties involved. EOIR and the 
Service recognize that the primary purposes of disciplinary 
proceedings, and any sanctions that are imposed as a result of such 
proceedings, include the protection of the public, the preservation of 
the integrity of the immigration courts and the legal profession, and 
the maintenance of high professional standards by practitioners.
    The proposed rule regarding the authority of EOIR to investigate 
complaints and to conduct disciplinary proceedings has been placed in 8 
CFR part 3 for several reasons: (1) To highlight the independence of 
EOIR from the Service; (2) to provide EOIR with the ability to police 
its own tribunals and the persons who come before them; and (3) to 
provide a more efficient and effective disciplinary system. The 
proposed rule and the amendments to 8 CFR part 292 clarify the 
authority of the Service to investigate complaints regarding attorneys 
and representatives who practice before the Service and outline the 
procedures by which disciplinary proceedings may be initiated before 
EOIR against practitioners who appear before the Service. Once the 
Service decides to issue a Notice of Intent to Discipline, the 
complaint will be heard and decided under the same procedures used for 
disciplinary actions initiated by the Office of the General Counsel of 
EOIR. Moreover, the rule also provides for notice of the initiation of 
disciplinary actions and coordination of disciplinary sanctions 
regarding the Service as well as the Board and the Immigration Courts.

Regulatory Flexibility Act

    In accordance with 5 U.S.C. 605(b), the Attorney General certifies 
that this rule affects only those practitioners who practice 
immigration law before EOIR and the Service. Approximately 5000 
immigration attorneys and 400 accredited representatives will be 
subject to this rule. This rule will not have a significant adverse 
economic impact on a substantial number of small entities because the 
rule is similar in substance to the existing regulatory process and 
will only affect those practitioners who have committed serious crimes 
or who have lost their license to practice law or otherwise engaged in 
professional misconduct. Therefore, this rule does not have a 
significant economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Act of 1996. This rule will not 
result in an annual effect on the economy of $100 million or more; a 
major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United states-based companies to compete with foreign-
based companies in domestic and export markets.

Executive Order 12866

    The Attorney General has determined that this rule is not a 
significant regulatory action under Executive Order No. 12866, and 
accordingly this rule has not been reviewed by the Office of Management 
and Budget.

Executive Order 12612

    This rule has no federalism implications warranting the preparation 
of a Federalism Assessment in accordance with Executive Order No. 
12612.

[[Page 2904]]

Executive Order 12988

    The rule meets the applicable standards provided in sections 3 (a) 
and 3 (b) (2) of Executive Order No. 12988.

List of Subjects

8 CFR Part 3

    Administrative practice and procedure, Immigration, Legal services, 
Organizations and functions (Government agencies), Reporting and 
recordkeeping requirements.

8 CFR Part 292

    Administrative practice and procedure, Immigration, Reporting and 
recordkeeping requirements.

    For the reasons set forth in the preamble, chapter I of title 8 of 
the Code of Federal Regulations is proposed to be amended as follows:

PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

    1. The authority citation for part 3 continues to read as follows:

    Authority: 5 U.S.C. 301; 8 U.S.C. 1103; 1252 note, 1252b, 1324b, 
1362; 28 U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan No. 2 of 1950, 3 
CFR, 1949-1953 Comp., p. 1002.

    2-3. Section 3.1 is amended by revising the reference to 
``Sec. 292.3(a)(15) of this chapter'' in the first sentence of 
paragraph (d)(1-a)(ii) to read ``Sec. 3.52(j)'', and by revising 
paragraph (d)(3) to read as follows:


Sec. 3.1  General authorities.

* * * * *
    (d) * * *
    (3) Rules of practice. The board shall have authority, with the 
approval of the Director, EOIR, to prescribe rules governing 
proceedings before it. It shall also determine whether any organization 
desiring representation is of a kind described in Sec. 1.1(j) of this 
chapter.
* * * * *
    4. Section 3.12 is amended by revising the reference to 
``Sec. 292.3 of this chapter'' in the second sentence to read ``part 3 
of this chapter''.
    5. Subpart D is added to part 3 after Subpart C, to read as 
follows:

Subpart D--Professional Conduct for Practitioners--Rules and Procedures

Sec.
3.51  General provisions.
3.52  Grounds.
3.53  Filing of an preliminary inquiry into complaints; resolutions; 
referral of complaints.
3.54  Notice of Intent to Discipline.
3.55  Hearing and disposition.
3.56  Reinstatement after expulsion or suspension.
3.57  Confidentiality.
3.58  Discipline of government attorneys.

Subpart D--Professional Conduct for Practitioners--Rules and 
Procedures

    Authority: 8 U.S.C. 1103, 1252b, 1362.


Sec. 3.51  General provisions.

    (a) Disciplinary Committee. The Disciplinary Committee is a three-
member panel appointed by the Deputy Attorney General, with at least 
one Committee member from the Executive Office for Immigration Review. 
The Deputy Attorney General will designate one Committee member to 
serve as Chairperson. A designee appointed by the Deputy Attorney 
General may serve as an alternate Disciplinary Committee member when, 
in the absence or unavailability of a Disciplinary Committee member or 
for other good cause, his or her participation is deemed necessary. 
Once designated, his or her participation in a case shall continue to 
its normal conclusion.
    (b) Authority to sanction. The Disciplinary Committee may impose 
disciplinary sanctions against any practitioner if it finds it to be in 
the public interest to do so. It will be in the public interest to 
impose disciplinary sanctions against a practitioner who is authorized 
to practice before the Board of Immigration Appeals (the Board) and the 
Immigration Courts when such person has engaged in criminal, unethical, 
or unprofessional conduct, or in frivolous behavior, as set forth in 
Sec. 3.52. In accordance with the disciplinary proceedings set forth in 
this subpart and outlined below, the Disciplinary Committee may impose 
any of the following disciplinary sanctions:
    (1) Expulsion, which is permanent, from practice before the Board 
and the Immigration Courts or the Immigration and Naturalization 
Service (the Service), or before all three authorities;
    (2) Suspension, including immediate suspension, from practice 
before the Board and the Immigration Courts or the Immigration and 
Naturalization Service (the Service), or before all three authorities;
    (3) Public or private censure; or
    (4) Such other disciplinary sanctions as the Disciplinary Committee 
deems appropriate.
    (c) Persons subject to sanctions. Persons subject to sanctions 
include any practitioner. A practitioner is any attorney as defined in 
Sec. 1.1(f) of this chapter who does not represent the federal 
government, or any representative as defined in Sec. 1.1(j) of this 
chapter. Attorneys employed by the Department of Justice shall be 
subject to discipline pursuant to Sec. 3.58.
    (d) Immediate suspension and summary disciplinary proceedings--(1) 
Immediate suspension. The Office of the General Counsel of EOIR may ask 
the Disciplinary Committee to immediately suspend from practice before 
the Board and the Immigration Courts any practitioner who has been 
convicted of a serious crime, as defined in Sec. 3.52(h), or who has 
been disbarred or is currently under suspension or resignation with an 
admission of misconduct by the bar of any state, possession, territory, 
commonwealth, or the District of Columbia, or by any Federal court. 
Such immediate suspension may be imposed upon the practitioner while 
any appeal from the underlying conviction or discipline is pending and 
shall continue until such time as a final administrative decision is 
made by the Disciplinary committee. If a final administrative decision 
includes the imposition of a period of suspension, any time spent by 
the practitioner under immediate suspension pursuant to this paragraph 
will be credited toward the period of suspension imposed by the final 
administrative decision.
    (2) Summary disciplinary proceedings. The Office of the General 
Counsel of EOIR may initiate summary disciplinary proceedings against 
any practitioner described in paragraph (d)(1) of this section. Summary 
proceedings may be initiated by the issuance of a Notice of Intent to 
Discipline if accompanied by a certified copy of a judgment of 
conviction or a judgment or order of discipline. Summary proceedings 
shall be conducted in accordance with the provisions set forth in 
Secs. 3.54 and 3.55, except that a certified copy of a judgment of 
conviction or judgment or order of discipline shall serve as a 
rebuttable presumption of the commission of the crime or the 
professional misconduct. The imposition of disciplinary sanctions shall 
follow, unless the practitioner can rebut the presumption by 
demonstrating that:
    (i) The underlying criminal or disciplinary proceeding was so 
lacking in notice or opportunity to be heard as to constitute a 
deprivation of due process;
    (ii) There was such an infirmity of proof establishing the 
practitioner's guilt or professional misconduct as to give rise to the 
clear conviction that the adjudicating official could not, consistent 
with his or her duty, accept as final the conclusion on that subject; 
or

[[Page 2905]]

    (iii) The imposition of discipline by the adjudicating official 
would result in grave injustice.
    (3) Ineligibility to rebut the presumption of professional 
misconduct. An attorney shall not be eligible to rebut the presumption 
of the commission of professional misconduct unless he or she is a 
member in good standing of the bar of the highest court of any state, 
possession, territory, commonwealth, or the District of Columbia.
    (e) Duty of practitioner to notify EOIR of conviction or 
discipline. Any practitioner who has been convicted of a serious crime, 
as defined in Sec. 3.52(h), or who has been disciplined for 
professional misconduct by the bar of any state, possession, territory, 
commonwealth, or the District of Columbia, or by a Federal court must 
notify the Office of the General Counsel or EOIR of any such conviction 
or disciplinary action within 30 days of the issuance of the initial 
order, even if an appeal of the conviction or discipline is pending. 
Failure to do so may result in immediate suspension as set forth in 
paragraph (d)(1) of this section. This duty to notify applies only to 
convictions for serious crimes or rulings of professional misconduct 
entered after the effective date of this regulation.


Sec. 3.52  Grounds.

    It is deemed to be in the public interest for the Disciplinary 
Committee to impose disciplinary sanctions against any practitioner who 
falls within one or more of the categories enumerated in this section, 
but these categories do not constitute the exclusive grounds for which 
disciplinary sanctions may be imposed in the public interest. A 
practitioner who falls within one of the following categories may be 
subject to disciplinary sanctions in the public interest if he or she:
    (a) Charges or receives, either directly or indirectly:
    (1) In the case of an attorney, any fee or compensation for 
specific services rendered for any person that shall be deemed to be 
grossly excessive. The factors to be considered in determining whether 
a fee or compensation is grossly excessive include the following: the 
time and labor required, the novelty and difficulty of the questions 
involved, and the skill requisite to perform the legal service 
properly; the likelihood, if apparent to the client, that the 
acceptance of the particular employment will preclude other employment 
by the attorney; the fee customarily charged in the locality for 
similar legal services; the amount involved and the results obtained; 
the time limitations imposed by the client or by the circumstances; the 
nature and length of the professional relationship with the client; and 
the experience, reputation, and ability of the attorney or attorneys 
performing the services,
    (2) In the case of an accredited representative as defined in 
Sec. 292.1(a)(4) of this chapter, any fee or compensation for specific 
services rendered for any person, except that an accredited 
representative may be regularly compensated by the organization of 
which he or she is an accredited representative, or
    (3) In the case of a law student or law graduate as defined in 
Sec. 292.1(a)(2) of this chapter, any fee or compensation for specific 
services rendered for any person, except that a law student or law 
graduate may be regularly compensated by the organization or firm with 
which he or she is associated as long as he or she is appearing without 
direct or indirect remuneration from the client he or she represents;
    (b) Bribes, attempts to bribe, coerces, or attempts to coerce, by 
any means whatsoever, any person (including a party to a case or an 
officer or employee of the Department of Justice) to commit any act or 
to refrain from performing any act in connection with any case;
    (c) Knowingly makes a false statement of material fact or law to, 
or willfully misleads, misinforms, threatens, or deceives any person 
(including a party to a case or an officer or employee of the 
Department of Justice) concerning any material and relevant matter 
relating to a case, including knowingly offering evidence that the 
practitioner knows to be false. If a practitioner has offered material 
evidence and comes to know of its falsity, the practitioner shall take 
appropriate remedial measures;
    (d) Solicits professional employment, through in-person or live 
telephone contact or through the use of runners, from a prospective 
client with whom the practitioner has no family or prior professional 
relationship when a significant motive for the practitioner's doing so 
is the practitioner's pecuniary gain. If the practitioner has no family 
or prior professional relationship with the prospective client known to 
be in need of legal services in a particular matter, the practitioner 
must include the words ``Advertising Material'' on the outside of the 
envelope of any written communication and at the beginning and ending 
of any recorded communication. Such advertising material or similar 
solicitation documents may not be distributed by any person in or 
around the premises of any building in which an Immigration Court is 
located;
    (e) Is currently subject to a final order of disbarment, 
suspension, or resignation with an admission of misconduct
    (1) In the jurisdiction of any state, possession, territory, 
commonwealth, or the District of Columbia, or in any Federal court in 
which the practitioner is admitted to practice, or
    (2) Before any executive department, board, commission, or other 
governmental unit;
    (f) Makes a false or misleading communication about his or her 
qualifications or services. A communication is false or misleading if 
it:
    (1) Contains a material misrepresentation of fact or law, or omits 
a fact necessary to make the statement considered as a whole not 
materially misleading, or,
    (2) Contains an assertion about the practitioner or his or her 
qualifications or services that cannot be substantiated. A practitioner 
shall not state or imply that he or she has been recognized or 
certified as a specialist in immigration and/or nationality law unless 
such certification is granted by the appropriate state regulatory 
authority or by an organization that has been approved by the 
appropriate state regulatory authority to grant such certification;
    (g) Engages in contumelious or otherwise obnoxious conduct with 
regard to a case in which he or she acts in a representative capacity, 
which, in the opinion of the Disciplinary Committee, would constitute 
cause for suspension or disbarment if the case were pending before a 
court, or which, in such a judicial proceeding, would constitute a 
contempt of court;
    (h) Has been convicted in any court of the United States, or of any 
state, possession, territory, commonwealth, or the District of 
Columbia, of a serious crime. A serious crime includes any felony and 
also includes any lesser crime, a necessary element of which, as 
determined by the statutory or common law definition of such crime in 
the jurisdiction where the judgment was entered, involved interference 
with the administration of justice, false swearing, misrepresentation, 
fraud, willful failure to file income tax returns, deceit, dishonesty, 
bribery, extortion, misappropriation, theft, or an attempt or a 
conspiracy or solicitation of another to commit a serious crime. A plea 
or verdict of guilty or a conviction after a plea of nolo contender is 
deemed to be a conviction within the meaning of this section;

[[Page 2906]]

    (i) Falsely certifies a copy of a document as being a true and 
complete copy of an original;
    (j) Engages in frivolous behavior in a proceeding before the 
Immigration Court, the Board, or any other administrative appellate 
body under title II of the Immigration and Nationality Act.
    (1) A practioner engages in frivolous behavior when he or she knows 
or reasonably should have known that his or her actions lack an 
arguable basis in law or in fact, or are taken for an improper purpose, 
such as to harass or to cause unnecessary delay. Actions that, if taken 
improperly, may be subject to disciplinary sanctions include, but are 
not limited to, the making of an argument on any factual or legal 
question, the submission of an application for discretionary relief, 
the filing of a motion, or the filing of an appeal. The signature of a 
practioner on any filing, application, motion, appeal, brief, or other 
document constitutes certification by the signer that the signer has 
read the filing, application, motion, appeal, brief, or other document 
and that, to the best of the signer's knowledge, information, and 
belief, formed after inquiry reasonable under the circumstances, the 
document is well-grounded in fact and is warranted by existing law or 
by a good faith argument for the extension, modification, or reversal 
of existing law or the establishment of new law, and is not interposed 
for any improper purpose.
    (2) The imposition of disciplinary sanctions for frivolous behavior 
under this section in no way limits the authority of the Board to 
dismiss an appeal summarily pursuant to Sec. 3.1(d)(1-a);
    (k) Engages in conduct that constitutes ineffective assistance of 
counsel, as previously determined in a finding by the Board or the 
Immigration Court in an immigration proceeding, within five years 
preceding the filing of the complaint; or
    (l) Repeatedly fails to appear for scheduled hearings in a timely 
manner.


Sec. 3.53  Filing of and preliminary inquiry into complaints; 
resolutions; referral of complaints.

    (a) Filing of complaints--(1) Practitioners authorized to practice 
before the Board and the Immigration Courts. Complaints of criminal, 
unethical, or unprofessional conduct, or frivolous behavior by a 
practioner who is authorized to practice before the Board and the 
Immigration Courts shall be filed with the Office of the General 
Counsel of EOIR. Complaints must be submitted in writing and must state 
in detail the information that supports the basis for the complaint, 
including, but not limited to, the names and addresses of the 
complainant and the practitioner, the date(s) of the conduct or 
behavior, the nature of the conduct or behavior, the individuals 
involved, the harm or damages sustained by the complainant, and any 
other relevant information. Any individual may file a complaint with 
the Office of the General Counsel of EOIR. The Office of the General 
Counsel of EOIR shall notify the Office of the General Counsel of the 
Service of any complaint filed that pertains, in whole or in part, to a 
matter involving the Service.
    (2) Practitioners authorized to practice before the Service. 
Complaints of criminal, unethical, or unprofessional conduct, or of 
frivolous behavior by a practitioner who is authorized to practice 
before the Service shall be filed with the Office of the General 
Counsel of the Service pursuant to the procedures set forth in 
Sec. 292.3(c) of this chapter.
    (b) Preliminary inquiry. Upon receipt of a complaint or on its own 
initiative, the Office of the General Counsel of EOIR will initiate a 
preliminary inquiry. If a complaint concerning a practitioner is filed 
by a client or former client, the complainant thereby waives the 
attorney-client privilege and any other applicable privilege, as 
between the complainant and the practitioner, to the extent necessary 
for the preliminary inquiry and any subsequent prosecution of the 
allegations. If the Office of the General Counsel of EOIR determines 
that a complaint is without merit, no further action will be taken. The 
Office of the General Counsel of EOIR may, in its discretion, close a 
preliminary inquiry if the complainant fails to comply with its 
reasonable requests for assistance, information, or documentation. The 
complainant and the practitioner shall be notified of such 
determinations in writing.
    (c) Resolutions reached prior to the issuance of a Notice of Intent 
to Discipline. The Office of the General Counsel of EOIR, in its 
discretion, may issue warning letters and admonitions, and may enter 
into agreements in lieu of discipline, prior to the issuance of a 
Notice of Intent to Discipline.
    (d) Referral of complaints of criminal conduct. If the Office of 
the General Counsel of EOIR receives credible information or 
allegations that a practitioner has engaged in criminal conduct in 
connection with an immigration matter, the Office of the General 
Counsel of EOIR shall refer the matter to the Inspector General and, if 
appropriate, to the Federal Bureau of Investigation. In such cases, in 
making the decision to pursue disciplinary sanctions, the Office of the 
General Counsel of EOIR shall coordinate in advance with the 
appropriate investigative and prosecutive authorities of the Department 
to ensure that neither the disciplinary process nor criminal 
prosecutions are jeopardized.


Sec. 3.54  Notice of Intent to Discipline.

    (a) Issuance of Notice to practitioner. If, upon completion of the 
preliminary inquiry, the Office of the General Counsel of EOIR 
determines, by a preponderance of the evidence, that a practitioner has 
engaged in professional misconduct as set forth in Sec. 3.52, it will 
issue a Notice of Intent to Discipline to the practitioner named in the 
complaint. This notice will be served upon the practitioner by personal 
service as defined in Sec. 103.5a of this chapter. Such notice shall 
contain a statement of the charge(s), a copy of the preliminary inquiry 
report, the proposed disciplinary sanctions to be imposed, the 
procedure for filing an answer or requesting a hearing, and the mailing 
address and telephone number for the Disciplinary Committee.
    (b) Copy of Notice to the Service; reciprocity of disciplinary 
sanctions. A copy of the Notice of Intent to Discipline shall be 
forwarded to the Office of the General Counsel of the Service. The 
Office of the General Counsel of the Service may submit a written 
request to the adjudicating official asking that he or she recommend 
that any discipline imposed against a practitioner's right to practice 
before the Board or the Immigration Courts also apply to the 
practitioner's right to practice before the Service. Proof of service 
on the practitioner of any request to broaden the scope of the proposed 
discipline must be filed with the adjudicating official.
    (c) Answer. The practitioner shall file an answer to the Notice of 
Intent to Discipline with the Office of the General Counsel of EOIR 
within 30 days of the date of service of the Notice of Intent to 
Discipline, unless an extension of time is granted for good cause by 
the Disciplinary Committee. A request for an extension of time to 
answer must be received by the Disciplinary Committee at least three 
(3) working days before the time to answer has expired. A copy of such 
request shall be served on the Office of the General Counsel of EOIR. 
The answer shall be in writing, must respond to each charge in a 
substantive and detailed manner, and may include any supporting 
documents, including affidavits or statements. The answer

[[Page 2907]]

shall state whether the practitioner requests a hearing on the matter.
    (d) Failure to file an answer. Failure to file an answer in a 
timely manner shall be deemed an admission to the factual allegations 
set forth in the Notice of Intent to Discipline and no further proof 
shall be required to establish the truth of such facts. The Office of 
the General Counsel of EOIR shall submit proof of personal service of 
the Notice of Intent to Discipline. The practitioner shall be precluded 
thereafter from requesting a hearing on the matter. The recommended 
disciplinary sanctions in the Notice of Intent to Discipline shall then 
become final and the Disciplinary Committee shall issue a final order 
adopting the recommended disciplinary sanctions against the 
practitioner. A practitioner may file a motion to set aside a final 
order of disciplinary sanctions, issued pursuant to this paragraph, 
with the Disciplinary Committee if:
    (1) Such a motion is filed within 15 days of service of the final 
order; and
    (2) His or her failure to file an answer was due to exceptional 
circumstances (such as serious illness of the practitioner or death of 
an immediate relative of the practitioner, but not including less 
compelling circumstances) beyond the control of the practitioner.


Sec. 3.55  Hearing and disposition.

    (a) Hearing--(1) Procedure. (i) The Director of EOIR shall, upon 
the filing of an answer, appoint an adjudicating official. An 
adjudicating official may be an Immigration Judge, an Assistant Chief 
Immigration Judge, a Board Member, or an Administrative Law Judge. Upon 
the practitioner's request for a hearing, the Director of EOIR shall 
designate the time and place of the initial hearing. Pre-hearing 
conferences may be scheduled at the discretion of the adjudicating 
official in order to narrow issues, to obtain stipulations between the 
parties, to exchange information voluntarily, and otherwise to simplify 
and organize the proceeding. Settlement agreements reached after the 
issuance of a Notice of Intent to Discipline are subject to final 
approval by the adjudicating official and the Disciplinary Committee.
    (ii) The practitioner may be represented at the hearing by counsel 
at no expense to the government. At the hearing, the practitioner shall 
have a reasonable opportunity to examine and object to evidence 
presented by the government, to present evidence on his or her own 
behalf, and to cross-examine witnesses presented by the government. The 
adjudicating official shall consider: the complaint, the preliminary 
inquiry report, the Notice of Intent to Discipline, the answer and any 
supporting documents; and any other evidence presented at the hearing 
(or, if the practitioner files an answer but does not request a 
hearing, any pleading, brief, or other materials submitted by counsel 
for the government). Counsel for the government shall bear the burden 
of proving the grounds for disciplinary sanctions enumerated in the 
Notice of Intent to Discipline by clear, unequivocal, and convincing 
evidence.
    (iii) The record of the hearing, regardless of whether the hearing 
is held before an Immigration Judge, an Assistant Chief Immigration 
Judge, a Board Member, or an Administrative Law Judge, shall conform to 
the requirements of 8 CFR 240.9. Disciplinary hearings shall be 
conducted in the same manner as immigration court proceedings as is 
appropriate, and shall be open to the public, except that:
    (A) Depending upon physical facilities, the adjudicating official 
may place reasonable limitations upon the number in attendance at any 
one time,
    (B) For the purposes of protecting witnesses, parties, or the 
public interest, the adjudicating official may limit attendance or hold 
a closed hearing.
    (2) Fairlure to appear at hearing. Failure to appear at the hearing 
shall be deemed an admission to the factual allegations set forth in 
the Notice of Intent to Discipline, even when the practitioner filed an 
answer, and no further proof shall be required to establish the truth 
of such facts. The Office of the General Counsel of EOIR or the Office 
of the General Counsel of the Service shall submit proof of personal 
service of the Notice of Intent to Discipline. The practitioner shall 
be precluded thereafter from participating further in the proceedings. 
The recommended disciplinary sanctions in the Notice of Intent to 
Discipline shall then become final and the Disciplinary Committee shall 
issue a final order adopting the recommended disciplinary sanctions 
against the practitioner. A practitioner may file a motion to set aside 
a final order of disciplinary sanctions issued pursuant to this 
paragraph if:
    (i) Such a motion is filed within 15 days of service of the final 
order; and
    (ii) His or her failure to appear at the hearing was due to 
exceptional circumstances (such as serious illness of the practitioner 
or death of an immediate relative of the practitioner, but not 
including less compelling circumstances) beyond the control of the 
practitioner.
    (b) Recommendation. The adjudicating official shall consider the 
entire record, including any testimony and evidence presented at the 
hearing, and shall report his or her findings and recommendations to 
the Disciplinary Committee. If the adjudicating official finds that the 
grounds for disciplinary sanctions enumerated in the Notice of Intent 
to Discipline have been established by clear, unequivocal, and 
convincing evidence, he or she shall recommend that the disciplinary 
sanctions set forth in the Notice of Intent to Discipline be adopted, 
modified, or otherwise amended. If the adjudicating official recommends 
that the practitioner be suspended, the time period for such suspension 
shall be specified. Court costs also may be assessed against the 
practitioner, including the costs of a transcript, an interpreter, or 
any other costs necessary to conduct the hearing. If the adjudicating 
official finds that the grounds for disciplinary sanctions enumerated 
in the Notice of Intent to Discipline have not been established by 
clear, unequivocal, and convincing evidence, he or she shall recommend 
to the Disciplinary Committee that the case be dismissed.
    (c) Decision. Upon a de novo review of the findings and 
recommendations of the adjudicating official, the Disciplinary 
Committee may adopt, modify, or otherwise amend the recommended 
disciplinary sanctions. The decision of the Disciplinary Committee is a 
final administrative order and shall be served upon the practitioner by 
personal service as defined in Sec. 103.5a of this chapter. A copy of 
the final administrative decision of the Disciplinary Committee shall 
be served upon the Office of the General Counsel of EOIR and the Office 
of the General Counsel of the Service. If disciplinary sanctions are 
imposed against a practitioner (other than a private censure), the 
Disciplinary Committee may require that a notice of such sanctions be 
posted at the Immigration Courts, the Board, or the Service for the 
period of time during which the sanctions are in effect, or for any 
other period of time as determined by the Disciplinary Committee.
    (d) Referral. In addition to or in lieu of initiating disciplinary 
proceedings against a practitioner, the Office of the General Counsel 
of EOIR may notify the appropriate state and/or local professional 
licensing or regulatory authority of a complaint filed against a 
practitioner. Any final administrative decision imposing sanctions 
against a practitioner (other than a private censure) shall be reported 
to the

[[Page 2908]]

appropriate state and/or local professional licensing or regulatory 
authority.


Sec. 3.56  Reinstatement after expulsion or suspension.

    (a) Expiration of suspension. A practitioner who has been suspended 
will be reinstated automatically to practice before the Board and the 
Immigration Courts or the Service, or before all three authorities, 
once the period of suspension has expired, provided that he or she 
meets the definition of attorney or representative as set forth in 
Sec. 1.1 (f) and (j), respectively, of this chapter. If a practitioner 
cannot meet the definition of attorney or representative, the 
Disciplinary Committee will decline to reinstate the practitioner.
    (b) Petition for reinstatement A practitioner who has been expelled 
or who has been suspended for one year or more may file a petition for 
reinstatement directly with the Disciplinary Committee after one-half 
of the suspension period has expired or one year has passed, whichever 
is greater, provided that he or she meets the definition of attorney or 
representative as set forth in Sec. 1.1 (f) and (j), respectively, of 
the chapter. A copy of such petition shall be served on the Office of 
the General Counsel of EOIR. In matters in which the practitioner was 
also ordered expelled or suspended from practice before the Service, a 
copy of such petition shall be served on the Office of the General 
Counsel of the Service. The practitioner shall have the burden of 
demonstrating by clear, unequivocal, and convincing evidence that he or 
she possesses the moral and professional qualifications required to 
appear before the Board and the Immigration Courts or the Service, or 
before all three authorities, and that his or her reinstatement will 
not be detrimental to the administration of justice. The Office of the 
General Counsel of EOIR, and in matters in which the practitioner was 
ordered expelled or suspended from practice before the Service, the 
Office of the General Counsel of the Service, may respond to the 
petition in the form of a written response, which may include 
documentation of any complaints filed against the expelled or suspended 
practitioner subsequent to his or her expulsion or suspension. If a 
practitioner cannot meet the definition of attorney or representative 
as set forth in Sec. 1.1 (f) and (j), respectively, of this chapter, 
the Disciplinary Committee will deny the petition for reinstatement. If 
reinstatement is found to be inappropriate or unwarranted, the petition 
shall be denied and any subsequent petitions for reinstatement may not 
be filed before the end of one year from the date of the previous 
denial. If reinstatement is found to be appropriate and the 
practitioner is found to be qualified to practice before the Board and 
the Immigration Courts or the Service, or before all three authorities, 
the practitioner will be reinstated.


Sec. 3.57  Confidentiality.

    (a) Complaints and preliminary inquiries. Except as otherwise 
provided by law or regulation, information concerning complaints or 
preliminary inquiries is confidential. A practitioner whose conduct is 
the subject of a complaint or preliminary inquiry, however, may waive 
confidentiality, except that the Office of the General Counsel of EOIR 
may decline to permit a waiver of confidentiality if it is determined 
that an ongoing preliminary inquiry may be substantially, prejudiced by 
a public disclosure before the filing of a Notice of Intent to 
Discipline.
    (1) Disclosure of information for the purpose of protecting the 
public. The Office of the General Counsel of EOIR, after private notice 
to the practitioner, may disclose information concerning a complaint or 
preliminary inquiry for the protection of the public when the necessity 
for disclosing information outweighs the necessity for preserving 
confidentiality in circumstances including, but not limited to, the 
following:
    (i) A practitioner has caused, or is likely to cause, harm to 
client(s), the public, or the administration of justice, such that the 
public or specific individuals should be advised of the nature of the 
allegations. If disclosure of information is made pursuant to this 
paragraph, the Office of the General Counsel of EOIR may define the 
scope of information disseminated and may limit the disclosure of 
information to specified individuals or entities;
    (ii) A practitioner has committed criminal acts or is under 
investigation by law enforcement authorities;
    (iii) A practitioner is under investigation by a regulatory or 
licensing agency, or has committed acts or made omissions that may 
reasonably result in investigation by a regulatory or licensing agency;
    (iv) A practitioner is the subject of multiple complaints and the 
Office of the General Counsel of EOIR has determined not to pursue all 
of the complaints. The Office of the General Counsel of EOIR may inform 
complainants whose allegations have not been pursued of the status of 
the other preliminary inquiries or the manner is which the other 
complaint(s) against the practitioner have been resolved.
    (2) Disclosure of information for the purpose of conducting a 
preliminary inquiry. The Office of the General Counsel of EOIR, in the 
exercise of discretion, may disclose documents and information 
concerning complaints and preliminary inquiries to the following 
individuals or entities:
    (i) To witnesses or potential witnesses in conjunction with a 
complaint or preliminary inquiry;
    (ii) To other governmental agencies responsible for the enforcement 
of civil or criminal laws;
    (iii) To agencies and other jurisdictions responsible for 
professional licensing;
    (iv) To the complainant or a lawful designee;
    (v) To the practitioner who is the subject of the complaint or 
preliminary inquiry or the practitioner's counsel of record.
    (b) Resolutions reached prior to the issuance of a Notice of Intent 
to Discipline. Resolutions, such as warning letters, admonitions, and 
agreements in lieu of discipline, reached prior to the issuance of a 
Notice of Intent to Discipline will remain confidential. However, such 
resolutions may become part of the public record if the practitioner 
becomes the subject of a subsequent Notice of Intent to Discipline.
    (c) Notices of Intent to Discipline and action subsequent thereto. 
Notices of Intent to Discipline and any action that takes place 
subsequent to their issuance, except for the imposition of private 
censures, may be disclosed to the public, except that private censures 
may become part of the public record if introduced as evidence of a 
prior record of discipline in any subsequent proceeding. Settlement 
agreements reached after the issuance of a Notice of Intent to 
Discipline may be disclosed to the public upon final approval by the 
adjudicating official and the Disciplinary Committee. Disciplinary 
hearings are open to the public, except as noted in Sec. 3.55.


Sec. 3.58  Discipline of government attorneys.

    Complaints regarding the conduct and behavior of government 
attorneys shall be directed to the Office of Professional 
Responsibility of the Department of Justice.

PART 292--REPRESENTATION AND APPEARANCES

    6. The authority citation for part 292 continues to read as 
follows:


[[Page 2909]]


    Authority: 8 U.S.C. 1103, 1252b, 1362.

    7. Section 292.3 is revised to read as follows:


Sec. 292.3  Professional Conduct for Practitioners--Rules and 
Procedures.

    (a) General provisions--(1) Disciplinary Committee. The 
Disciplinary Committee established under Sec. 3.51 of this chapter may 
impose disciplinary sanctions against any practitioner if it finds it 
to be in the public interest to do so.
    (2) Authority to sanction. It will be in the public interest to 
impose disciplinary sanctions against a practitioner who is authorized 
to practice before the Service when such person has engaged in 
criminal, unethical, or unprofessional conduct, or in frivolous 
behavior, as set forth in Sec. 3.52 of this chapter. In accordance with 
the disciplinary proceedings set forth in part 3 of this chapter, the 
Disciplinary Committee may impose any of the following disciplinary 
sanctions:
    (i) Expulsion, which is permanent, from practice before the Board 
of Immigration Appeals and the Immigration Courts or the Service, or 
before all three authorities;
    (ii) Suspension, including immediate suspension, from practice 
before the Board and the Immigration Courts or the Service, or before 
all three authorities;
    (iii) Public or private censure; or
    (iv) Such other disciplinary sanction as the Disciplinary Committee 
deems appropriate.
    (3) Persons subject to sanctions. Persons subject to sanctions 
include any practitioner. A practitioner is any attorney as defined in 
Sec. 1.1(f) of this chapter who does not represent the federal 
government, or any representative as defined in Sec. 1.1(j) of this 
chapter. Attorneys employed by the Department of Justice shall be 
subject to discipline pursuant to paragraph (h) of this section.
    (4) Immediate suspension and summary disciplinary proceedings--
(i)Immediate suspension. The Office of the General Counsel of the 
Service may ask the Disciplinary Committee to immediately suspend from 
practice before the Service any practitioner who has been convicted of 
a serious crime, as defined in Sec. 3.52(h) of this chapter, or who has 
been disbarred or is currently under suspension or resignation with an 
admission of misconduct by the bar of any state, possession, territory, 
commonwealth, or the District of Columbia, or by any Federal Court. 
Such immediate suspension may be imposed upon the practitioner while 
any appeal from the underlying conviction or discipline is pending and 
shall continue until such time as a final administrative decision is 
made by the Disciplinary Committee. If a final administrative decision 
includes the imposition of a period of suspension, any time spent by 
the practitioner under immediate suspension pursuant to this paragraph 
will be credited toward the period of suspension imposed by the final 
administrative decision.
    (ii) Summary disciplinary proceedings. The Office of the General 
Counsel of the Service may initiate summary disciplinary proceedings 
against any practitioner described in paragraph (a)(4)(i) of this 
section. Summary proceedings may be initiated by the issuance of a 
Notice of Intent to Discipline if accompanied by a certified copy of a 
judgment of conviction or a judgment or order of discipline. Summary 
proceedings shall be conducted in accordance with the provisions set 
forth in Secs. 3.54 and 3.55 of this chapter, except that a certified 
copy of a judgment of conviction or judgment or order of discipline 
shall serve as a rebuttable presumption of the commission of the crime 
or the professional misconduct. The imposition of disciplinary sanction 
shall follow, unless the practitioner can rebut the presumption by 
demonstrating that:
    (A) The underlying criminal or disciplinary proceeding was so 
lacking in notice or opportunity to be heard as to constitute a 
deprivation of due process;
    (B) There was such an infirmity of proof establishing the 
practitioner's guilt or professional misconduct as to give rise to the 
clear conviction that the adjudicating official could not, consistent 
with his or her duty, accept as final the conclusion on that subject; 
or
    (C) The imposition of discipline by the adjudicating official would 
result in grave injustice.
    (iii) Ineligibility to rebut the presumption of professional 
misconduct. An attorney shall not be eligible to rebut the presumption 
of the commission of professional misconduct unless he or she is a 
member in good standing of the bar of the highest court of any state, 
possession, territory, commonwealth, or the District of Columbia.
    (5) Duty of practitioner to notify the Service of conviction or 
discipline. Any practitioner who has been convicted of a serious crime, 
as defined in Sec. 3.52(h) of this chapter, or who has been disciplined 
for professional misconduct by the bar of any state, possession, 
territory, commonwealth, or the District of Columbia, or by a Federal 
court must notify the Office of the General Counsel of the Service of 
any such conviction or disciplinary action within 30 days of the 
issuance of the initial order, even if an appeal of the conviction or 
discipline is pending. Failure to do so may result in immediate 
suspension as set forth in paragraph (a)(3)(i) of this section. This 
duty to notify applies only to convictions for serious crimes or 
rulings of professional misconduct entered after the effective date of 
this regulation.
    (b) Grounds of discipline as set forth in Sec. 3.52 of this 
chapter. It is deemed to be in the public interest for the Disciplinary 
Committee to impose disciplinary sanctions as described in paragraph 
(a) of this section against any practitioner who falls within one or 
more of the categories enumerated in Sec. 3.52 of this chapter, with 
the exception of paragraphs (k) and (l) of that section, but these 
categories do not constitute the exclusive grounds for which 
disciplinary sanctions may be imposed in the public interest.
    (c) Filing of and preliminary inquiry into complaints, resolutions; 
referral of complaints--(1) Practitioners authorized to practice before 
Service. Complaints of criminal, unethical, or unprofessional conduct, 
or of frivolous behavior by a practitioner who is authorized to 
practice before the Service shall be filed with the Office of the 
General Counsel of the Service. Complaints must be submitted in writing 
and must state in detail the information that supports the basis for 
the complaint, including, but not limited to, the names and addresses 
of the complainant and the practitioner, the date(s) of the conduct or 
behavior, the nature of the conduct or behavior, the individual 
involved, the harm or damages sustained by the complainant, and any 
other relevant information. Any individual may file a complaint with 
the Office of the General Counsel of the Service. The Office of the 
General Counsel of the Service shall notify the Office of the General 
Counsel of the Executive Office for Immigration Review (EOIR) of any 
complaint filed that pertains, in whole or in part, to a matter before 
the Board or the Immigration Courts.
    (2) Practitioners authorized to practice before the Board and the 
Immigration Courts. Complaints of criminal, unethical, or 
unprofessional conduct, or of frivolous behavior by a practitioner who 
is authorized to practice before the Board and the Immigration Courts 
shall be filed with the Office of the General Counsel of EOIR pursuant 
to the procedures set forth in Sec. 3.53(a) of this chapter.

[[Page 2910]]

    (3) Preliminary inquiry. Upon receipt of a complaint or on its own 
initiative, the Office of the General Counsel of the Service will 
initiate a preliminary inquiry. If a complaint concerning a 
practitioner is filed by a client or former client, the complainant 
thereby waives the attorney-client privilege and any other applicable 
privilege, as between the complainant and the practitioner, to the 
extent necessary for the preliminary inquiry and any subsequent 
prosecution of the allegations. If the Office of the General Counsel of 
the Service determines that a complaint is without merit, no further 
action will be taken. The Office of the General Counsel of the Service 
may, in its discretion, close a preliminary inquiry if the complainant 
fails to comply with its reasonable requests for assistance, 
information, or documentation. The complainant shall be notified of 
such determinations in writing.
    (4) Resolutions reached prior to the issuance of a Notice of Intent 
to Discipline. The Office of the General Counsel of the Service, in its 
discretion, may issue warning letters and admonitions, and may enter 
into agreements in lieu of discipline, prior to the issuance of a 
Notice of Intent to Discipline.
    (5) Referral of complaints of criminal conduct. If the Office of 
the General Counsel of the Service receives credible information or 
allegations that a practitioner has engaged in criminal conduct in 
connection with an immigration matter, the Office of the General 
Counsel of the Service shall refer the matter to the Inspector General 
and, if appropriate, to the Federal Bureau of Investigation. In such 
cases, in making the decision to pursue disciplinary sanctions, the 
Office of the General Counsel of the Service shall coordinate in 
advance with the appropriate investigative and prosecutive authorities 
of the Department to ensure that neither the disciplinary process nor 
criminal prosecutions are jeopardized.
    (d) Notice of Intent to Discipline--(1) Issuance of Notice to 
practitioner. If, upon completion of the preliminary inquiry, the 
Office of the General Counsel of the Service determines, by a 
preponderance of the evidence, that a practitioner has engaged in 
professional misconduct as set forth in Sec. 3.52 of this chapter, it 
will issue a Notice of Intent to Discipline to the practitioner named 
in the complaint. This notice will be served upon the practitioner by 
personal service as defined in Sec. 103.5a of this chapter. Such notice 
shall contain a statement of the charge(s), a copy of the preliminary 
inquiry report, the proposed disciplinary sanctions to be imposed, the 
procedure for filing an answer or requesting a hearing, and the mailing 
address and telephone number for the Disciplinary Committee. The Office 
of the General Counsel of the Service shall forward a copy of the 
Notice of Intent to Discipline to the Disciplinary Committee.
    (2) Copy of Notice to EOIR; reciprocity of disciplinary sanctions. 
A copy of the Notice of Intent to Discipline shall be forwarded to the 
Office of the General Counsel of EOIR. The Office of the General 
Counsel of EOIR may submit a written request to the adjudicating 
official asking that he or she recommend that any discipline imposed 
against a practitioner's right to practice before the Service also 
apply to the practitioner's right to practice before the Board and the 
Immigration Courts. Proof of service on the practitioner of any request 
to broaden the scope of the proposed discipline must be filed with the 
adjudicating official.
    (3) Answer. The practitioner shall file an answer to the Notice of 
Intent to Discipline with the Office of the General Counsel of the 
Service within 30 days of the date of service, unless an extension of 
time is granted for good cause by the Disciplinary Committee. A request 
for an extension of time to answer must be received by the Disciplinary 
Committee at EOIR Headquarters at least three (3) working days before 
the time to answer has expired. A copy of such request shall be served 
on the Office of the General Counsel of the Service. The answer shall 
be in writing, must respond to each charge in a substantive and 
detailed manner, and may include any supporting documents, including 
affidavits or statements. The answer shall state whether the 
practitioner requests a hearing on the matter. The Office of the 
General Counsel of the Service shall forward a copy of the 
practitioner's answer to the Disciplinary Committee or, if no answer 
was filed, notification of such shall be filed with the Disciplinary 
Committee.
    (4) Failure to file an answer. Failure to file an answer in a 
timely manner shall be deemed an admission to the factual allegations 
set forth in the Notice of Intent to Discipline and no further proof 
shall be required to establish the truth of such facts. The Office of 
the General Counsel of the Service shall submit proof of personal 
service of the Notice of Intent to Discipline. The practitioner shall 
be precluded thereafter from requesting a hearing on the matter. The 
recommended disciplinary sanctions in the Notice of Intent to 
Discipline shall then become final and the Disciplinary Committee shall 
issue a final order adopting the recommended disciplinary sanctions 
against the practitioner. A practitioner may file a motion to set aside 
a final order of disciplinary sanctions, issued pursuant to this 
paragraph, with the Disciplinary Committee if:
    (i) Such a motion is filed within 15 days of service of the final 
order, and
    (ii) His or her failure to file an answer was due to exceptional 
circumstances (such as serious illness of the practitioner or death of 
an immediate relative of the practitioner, but not including less 
compelling circumstances) beyond the control of the practitioner.
    (e) Hearing and disposition. Upon the filing of an answer, the 
matter shall be heard and decided according to the procedures set forth 
in Secs. 3.55 and 3.56 of this chapter. The Office of the General 
Counsel of the Service shall represent the government.
    (f) Referral. In addition to or in lieu of initiating disciplinary 
proceedings against a practitioner, the Office of the General Counsel 
of the Service may notify the appropriate state and/or local 
professional licensing or regulatory authority of a complaint filed 
against a practitioner. Any final administrative decision imposing 
sanctions against a practitioner (other than a private censure) shall 
be reported to the appropriate state and/or local professional 
licensing or regulatory authority.
    (g) Confidentiality--(1) Complaints and preliminary inquiries. 
Except as otherwise provided by law or regulation, information 
concerning complaints or preliminary inquiries is confidential. A 
practitioner whose conduct is the subject of a complaint or preliminary 
inquiry, however, may waive confidentiality, except that the Office of 
the General Counsel of the Service may decline to permit a waiver of 
confidentiality if it is determined that an ongoing preliminary inquiry 
may be substantially prejudiced by a public disclosure before the 
filing of a Notice of Intent to Discipline.
    (i) Disclosure of information for the purpose of protecting the 
public. The Office of the General Counsel of the Service, after private 
notice to the practitioner, may disclose information concerning a 
complaint or preliminary inquiry for the protection of the public when 
the necessity for disclosing information outweighs the necessity for 
preserving confidentiality in circumstances including, but not limited 
to, the following:
    (A) A practitioner has caused, or is likely to cause, harm to 
client(s), the

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public, or the administration of justice, such that the public or 
specific individuals should be advised of the nature of the 
allegations. If disclosure of information is made pursuant to this 
paragraph, the Office of the General Counsel of the Service may define 
the scope of information disseminated and may limit the disclosure of 
information to specified individuals or entities;
    (B) A practitioner has committed criminal acts or is under 
investigation by law enforcement authorities;
    (C) A practitioner is under investigation by a regulatory or 
licensing agency, or has committed acts or made omissions that may 
reasonably result in investigation by a regulatory or licensing agency;
    (D) A practitioner is the subject of multiple complaints and the 
Office of the General Counsel of the Service has determined not to 
pursue all of the complaints. The Office of the General Counsel of the 
Service may inform complainants whose allegations have not been pursued 
of the status of the other preliminary inquiries or the manner in which 
the other complaint(s) against the practitioner have been resolved.
    (ii) Disclosure of information for the purpose of conducting a 
preliminary inquiry. The Office of the General Counsel of the Service, 
in the exercise of discretion, may disclose documents and information 
concerning complaints and preliminary inquiries to the following 
individuals or entities:
    (A) To witnesses or potential witnesses in conjunction with a 
complaint or preliminary inquiry;
    (B) To other governmental agencies responsible for the enforcement 
of civil or criminal laws;
    (C) To agencies and other jurisdictions responsible for 
professional licensing;
    (D) To the complainant or a lawful designee; and
    (E) To the practitioner who is the subject of the complaint or 
preliminary inquiry or the practitioner's counsel of record.
    (2) Resolutions reached prior to the issuance of a Notice of Intent 
to Discipline. Resolutions, such as warning letters, admonitions, and 
agreements in lieu of discipline, reached prior to the issuance of a 
Notice of Intent to Discipline will remain confidential.
    (3) Notices of Intent to Discipline and action subsequent thereto. 
Notices of Intent to Discipline and any action that takes place 
subsequent to their issuance, except for the imposition of private 
censures, may be disclosed to the public, except that private censures 
may become part of the public record if introduced as evidence or a 
prior record of discipline in any subsequent proceeding. Settlement 
agreements reached after the issuance of a Notice of Intent to 
Discipline may be disclosed to the public upon final approval by the 
adjudicating official and the Disciplinary Committee. Disciplinary 
hearings are open to the public, except as noted in Sec. 3.55(a)(iii) 
of this chapter.
    (h) Discipline of government attorneys. Complaints regarding the 
conduct and behavior of government attorneys shall be directed to the 
Office of Professional Responsibility of the Department of Justice.

    Dated: January 12, 1998.
Janet Reno,
Attorney General.
[FR Doc. 98-1192 Filed 1-16-98; 8:45 am]
BILLING CODE 4410-30-M