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Article Excerpt
INTRODUCTION
I. IMPACT OF UNDOCUMENTED STATUS ON ATTORNEY-CLIENT RELATIONSHIP A. Hypothetical One: Entry with Proper Immigration Documentation and Not Asked to Provide Work Authorization Papers B. Hypothetical Two: Entry Without Proper Documentation and Not Asked to Provide Work Authorization Papers C. Hypothetical Three: Client Enters Lawfully but Uses a False Social Security Number to Obtain Employment D. Hypothetical Four: Client Enters Lawfully but Uses and Still Possesses False Immigration Documents to Obtain Employment II. THE RELEVANCE OF IMMIGRATION STATUS TO THE UNDERLYING LITIGATION III. BALANCING CONFIDENTIALITY AND DISCLOSURE OBLIGATIONS A. Immigration Status Determined Relevant to Underlying Litigation B. Immigration Status Determined Not Relevant to Underlying Litigation 1. Hypothetical One: Entry with Proper Immigration Documentation and Not Asked To Provide Work Authorization Papers 2. Hypothetical Two: Entry Without Proper Documentation and Not Asked to Provide Work Authorization Papers 3. Hypothetical Three: Client Enters Lawfully but Uses a False Social Security Number to Obtain Employment 4. Hypothetical Four: Clients Enters' Lawfully but Uses and Still Possesses False Immigration Documents to Obtain Employment IV. STRATEGIC DECISION TO DISCLOSE V. CONCLUSION
INTRODUCTION
The presence of an estimated 11.5 million undocumented immigrants in the United States, (1) of which an estimated 7.2 million are working, (2) has become a flashpoint in the emerging national debate about immigration. Despite the fact that immigrants often accept jobs and working conditions that no citizens seem willing to undertake, (3) this country has responded with hostile state initiatives (4) and federal legislative efforts that not only fail to recognize their contributions, but also penalize many aspects of their daily existence. (5)
When an employer, wittingly or unwittingly, hires an undocumented worker, a question arises regarding the extent to which labor and employment statutory protections extend to undocumented workers. In analyzing this question, courts are forced to address the interplay between immigration and employment statutes and their respective underlying policy rationales. Prior to 2002, courts confronting these issues developed a body of law that harmonized these two distinct areas of jurisprudence, finding, in many contexts, that undocumented workers were entitled to statutory protections in the workplace. (6) This body of law shifted in 2002 when the United States Supreme Court decided Hoffman Plastic Compounds, Inc. v. NLRB and found that back-pay for undocumented workers under the National Labor Relations Act (NLRA) was foreclosed by federal immigration policy. (7) Since the Hoffman decision, lower courts have struggled to define the parameters of the case, and, while the jurisprudence is still evolving, many courts have limited Hoffman's reach and found workers entitled to seek legal remedies for workplace violations under a variety of statutes. (8)
Undocumented workers who pursue enforcement of their legal rights have heightened concerns about the disclosure of their status in the context of civil litigation. Because of the precarious situation that undocumented workers inhabit in the workplace, (9) the potential for mistreatment is great. (10) Further, once their status is disclosed, the ramifications for undocumented immigrants are uncertain at best; they could be reported to the Bureau of Immigration and Customs Enforcement (BICE) and deported, charged criminally and/or barred from reentering the country. (11)
Lawyers litigating employment-related claims involving undocumented workers are likely to confront a host of complex ethical issues. The ethical quandaries have grown increasingly more difficult in light of ongoing debates about comprehensive immigration reform. Recent legislative proposals contain stepped-up employer verification provisions, (12) make mere presence in the United States a federal crime, (13) and make those who help undocumented immigrants susceptible to liability as "alien smugglers." (14) These looming developments increase the potential risks and consequences to undocumented immigrants, their employers, and, potentially, to the lawyers who are involved in the litigation. The following case is illustrative of the complex interplay of ethical issues that can arise.
A group of workers sued their employer, a landscape company, for violations of the Fair Labor Standards Act (FLSA). As the case proceeded, defense counsel repeatedly questioned the immigration status of some of the workers and suggested that plaintiffs' counsel was somehow aiding and abetting illegal conduct by failing to report the plaintiffs' whereabouts to immigration officials. In an attempt to protect the clients, plaintiffs' counsel obtained a written agreement from the defendant that it would not raise the issue of plaintiffs' immigration status at depositions. This agreement was promptly violated at the first plaintiff's deposition and, in response, plaintiff asserted his rights under the Fifth Amendment. Then, during a break, defense counsel called the local police who, upon their arrival, called the local immigration enforcement office to report plaintiff as an illegal alien based only upon the assertion of plaintiff's Fifth Amendment rights. (15)
This Article explores the increasingly complex ethical obligations with regard to a client's immigration status in the context of employment-related civil litigation. (16) The inquiry begins with the initial question of whether or not a lawyer can represent an undocumented worker in such litigation. In light of prohibitions on lawyers assisting in conduct that is criminal or fraudulent, the answer to the question is not necessarily evident. (17) Undocumented workers currently can be criminally liable for various actions related to the manner in which they entered the country and the method by which they obtained employment. Thus, even though undocumented workers may have a legal fight to certain employment-related remedies, lawyers need to determine whether the rules of professional conduct bar such representation. Ultimately, this Article concludes that, in most every instance, lawyers are not prohibited from representing undocumented workers in employment-related civil litigation, even if actions related to their manner of entry or method of obtaining employment are criminal or fraudulent. (18)
After determining that a lawyer can represent an undocumented worker in employment-related civil litigation, the Article explores additional complexities that arise in the course of the representation when lawyers have to decide whether to protect or disclose a client's immigration status. The lawyer's decision to protect or disclose the information is, in the first instance, dependent upon whether or not immigration status is relevant to the underlying lawsuit. In the wake of Hoffman, employers have attempted to broaden the Court's holding by arguing that immigration status is relevant to a whole range of employment-related civil litigation. If immigration status is determined relevant to the litigation, the lawyer's ethical obligations to protect the information involve inquiries into the rules of confidentiality, the client's Fifth Amendment privilege against self-incrimination, (19) and the applicability and scope of the attorney-client privilege.
If, on the other hand, immigration status is determined not relevant, the client's immigration status would constitute confidential information and lawyers would be obligated to protect this information unless they were permitted or mandated to disclose it. The Model Rules of Professional Conduct contain a strong obligation to keep client information confidential as well as rules designed to prohibit lawyers from counseling or assisting a client in fraudulent or criminal activities. Proposed and existing legislation that characterizes an undocumented worker's presence or work in this country as criminal or fraudulent, thus, creates a tension between the lawyer's confidentiality obligations and the potential for permissive (20) or mandatory disclosure. (21) Among the applicable provisions are Rule 3.3(b)--which requires lawyers representing clients they know intend to engage or are engaging in criminal or fraudulent conduct to take reasonable remedial measures, including disclosure of such information to the tribunal (22)--and Rule 4.1(b)--which requires lawyers to disclose material facts in order to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6. (23)
In trying to address the tension between confidentiality and disclosure obligations, lawyers should bear in mind that there are two important limitations on the crime and fraud rules embodied in the Model Rules of Professional Conduct. First, the rules apply only if there is a sufficient nexus between the alleged crime or fraud and the pending action. (24) Second, the rules apply only if there is a sufficiently close relationship between the lawyer's actions and the client's alleged crime or fraud. (25) Essentially, disclosure is only required if the lawyer is directly counseling or assisting in the crime or fraud or if there is a close causal connection between the client's crime or fraud and the underlying litigation. Thus, despite the statutory provisions criminalizing certain acts, the constellation of ethical rules relating to client crime or fraud may not actually require a lawyer to disclose a client's immigration status, but, instead, may obligate the lawyer to protect this otherwise confidential information.
Lawyers representing employers will also be affected by the immigration status of opposing parties. (26) If immigration status is not relevant to the pending litigation, lawyers representing employers might consider whether it is appropriate to seek access to this information. (27) Further, the way in which these disclosure issues are decided will have larger implications for the justice system. If the risks and costs of disclosure are too high, undocumented workers will be deterred from seeking enforcement of their rights or forced to drop litigation once started. This chilling effect might also undermine the policies of employment laws that may, as a result, go under enforced. Additionally, lawyers might be forced to alter their client relationships so as to avoid learning information they might later have to disclose.
Despite this Article's conclusion that the ethical rules do not mandate disclosure of a client's immigration status, the rules might permit the disclosure and some lawyer may want to exercise this discretion to reveal. For example, an attorney might believe that disclosure would make her client more credible or preempt certain strategic benefits gained by the opposing party. In order to assist lawyers in addressing these decisions, this Article will briefly explore whether the decision to disclose belongs to the lawyer or the client and the extent of the lawyer's obligation to counsel the client and to obtain informed consent prior to disclosure.
Part I of this Article analyzes the initial ethical question whether undocumented workers seeking employment-related civil remedies will be able to avail themselves of legal representation, or whether the limitation on assisting clients in the commission of a crime or fraud will bar representation. After concluding that there is likely no bar to representation in this context, the Article then examines how undocumented status affects decisions made during the course of the representation. Part II explores the development of the law regarding relevancy of immigration status in the context of civil litigation. In particular, this Part focuses on a comparison of the law before and after the Supreme Court decision in Hoffman and then examines the development of law by lower courts post-Hoffman. Part III then explores lawyers' obligations to protect or disclose immigration status and contrasts lawyers' ethical obligations if immigration status is determined to be relevant to the proceedings with instances in which immigration status is not relevant to the proceedings. Finally, Part V examines the ethical obligations of lawyers who determine that it would be strategically beneficial to the case to disclose a client's immigration status.
In the current climate of hostility toward immigrants, and undocumented immigrants in particular, lawyers representing undocumented clients need to be mindful of the implications of disclosure. An improperly made disclosure could have catastrophic consequences for a client, including deportation, criminal charges, and the inability to reenter the country legally. Given these potential harmful consequences, lawyers should be cognizant of their ethical obligations at all stages of legal proceedings, and should keep clients informed about and prepared to address immigration status issues.
I. IMPACT OF UNDOCUMENTED STATUS ON ATTORNEY-CLIENT RELATIONSHIP
Under current jurisprudence, undocumented workers are entitled to some legal remedies for workplace violations. For lawyers seeking to represent undocumented workers in this context, an initial ethical question is whether the rules of professional responsibility limit such representation. Specifically, the inquiry of this Part is whether Rule 1.2(d), which prohibits an attorney from assisting a client in criminal or fraudulent conduct, categorically bars an attorney from counseling or representing an undocumented worker in employment-related civil litigation. This Part proceeds by first examining the meaning of 1.2(d) and then analyzing its application to typical scenarios in which undocumented workers seek the assistance or representation of a lawyer. This Part will then move to an analysis of the broader policy implications of various interpretations of 1.2(d) and conclude that, in most instances, 1.2(d) does not prohibit undocumented workers from seeking the advice, counsel, and representation of an attorney in employment-related civil litigation.
Rule 1.2(d) states:
[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. (28)
By its plain language, the rule distinguishes between directing, suggesting or assisting in criminal or fraudulent conduct and providing the client with information about the law and predicted legal consequences. (29)
On its face, the application of this rule seems quite simple. If the conduct in question is the filing of a lawsuit to enforce existing employment rights, this conduct, in and of itself, is not criminal or fraudulent. However, the more complex issue is whether the representation indirectly amounts to counseling or assisting a client to engage in a crime or fraud. In analyzing this question it is necessary to initially explore what, if any, crime or fraud is at issue and whether or not any of the crimes could be construed as "continuing offenses." (30) Once these parameters are defined, the Article then examines whether or not representation in employment-related civil matters amounts to "assisting" and is thus prohibited under Rule 1.2(d).
Undocumented workers can be criminally liable for a number of different actions which, for ease of analysis, can be grouped into two broad categories: those related to entry and continued presence in the United States; and those related to obtaining and maintaining employment. In terms of those criminal activities related to entry and presence in the country, while mere presence in the United States is not currently a crime, (31) entry and presence in the United States after a deportation order has been entered is a criminal offense. (32) Additionally, entering the country without inspection or entering by use of false or misleading representations (33) and willful failure to register as an alien after thirty days are crimes. (34) Further, it is a crime to knowingly forge, alter, make, obtain, possess, or accept false immigration documents for entry into or as evidence of a lawful stay or employment in the United States. (35) In terms of criminal or fraudulent activity related to work, using a false Social Security number for the purpose of obtaining any payment or any other benefit is a felony. (36) It is not currently a crime to work without any legal documents, but it is grounds for removal. (37)
Of those acts that constitute a criminal offense, are any of them considered "continuing crimes"? If so, the ongoing nature of the offense might impact the analysis of whether or not a lawyer's work on employment-related civil litigation could be construed as "assisting" the client in a crime or fraud. Courts have found that entering without inspection or entering with false documents and using a false Social Security number to obtain a benefit are not "continuing crimes." (38) The crime of entering by eluding examination or immigration officers has been held to be "consummated at the time an alien gains entry through an unlawful point and does not submit to these examinations." (39) Based upon this analysis, once an immigrant reaches a place of repose within the country, the misdemeanor of improper entry is concluded. Similarly, using a false Social Security number in order to obtain a benefit has been held to be completed when the false representation is made and is not considered a continuing crime. (40) However, there could be numerous separate crimes if an individual were to make numerous representations utilizing a false Social Security number.
In contrast, willful failure to register as an alien after thirty days and entry and presence in the United States after a deportation order have been found to be continuing crimes. (41) Additionally, while there is no specific case analyzing whether all, or part, of 18 U.S.C. [section] 1546 amounts to a "continuing crime," related case law supports an interpretation that at least some acts under [section] 1546 could be construed as continuing crimes. Section 1546 makes it a crime to knowingly forge, counterfeit, alter or falsely make immigration documents for entry or as evidence of authorized stay or employment in the U.S. and to utter, use, attempt to use, possess, obtain, accept, or receive such immigration documents for entry or as evidence of authorized stay or employment in the United States. (42) Employing the analysis set forth by the Supreme Court in Toussie v. United States, the doctrine of continuing offenses should be applied in only limited circumstances. (43) Toussie requires that, in order to constitute a continuing offense, the explicit language of the substantive criminal statutes must compel such a conclusion or the nature of the crime must be such that Congress intended that it be treated as a continuing crime. (44) Of all of the acts prohibited by this statute, possession is the only one that implies an ongoing activity. The other actions such as uttering, obtaining, using or accepting appear more likely to be construed as completed upon the act constituting the crime. There are many cases involving "possession" offenses and no matter the divergent circumstances, each court found that possession is a "continuing offense." (45) Thus, in addition to willful failure to register after thirty days and entry and presence after a deportation order, it also appears that possession of immigration documents for the purposes identified in the statute might be construed as a continuing crime.
Further, because the ethical rules address fraudulent, as well as criminal, actions of the client, the lawyer should explore what, if any, actions of a client could be considered fraudulent. The rules define fraudulent as "conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive." (46) Fraud typically consists of a false representation, whether oral, written or based in conduct that creates an untrue or misleading impression in the mind of another with the intent that the person would rely upon the false representation. (47) Certainly, entering without inspection, with false papers or obtaining employment with false documents might be construed as fraudulent activity.
Based upon the fact that some of the actions of the undocumented worker might constitute either a crime or a fraud, the issue is whether or not legal representation of an undocumented worker in an employment-related civil case would amount to "assisting" in any of these criminal or fraudulent acts. In analyzing this question, it is helpful to think about a continuum at one end of which are those instances where there exists an obvious connection between the client's crime or fraud and the lawyer's actions or inactions. The most extreme examples are those in which the lawyer directly participates in the client's crime (48) or directly advises a client to commit a crime or fraud. (49) In these instances, Rule 1.2(d) would bar representation. On the other end of the spectrum would be an example in which the client commits a crime or fraud that is so wholly unrelated to the representation that it is obvious Rule 1.2(d) would not prohibit the attorney's representation. For example, assume a client who is undocumented seeks compensation under the Fair Labor Standards Act, and the state counterpart, for wages owed for completed work. In the course of representation, the client discloses to his attorney that he previously has been violent toward his wife. Even assuming that his actions would constitute an assault, nothing prohibits his representation in the claim for unpaid wages (50) because Rule 1.2(d) recognizes a distinction between assisting the client in the commission of a crime or fraud and merely being aware that the client has or is committing a crime or fraud. (51)
A gray area exists in between these extremes--instances in which a lawyer's actions can be construed as "passively assisting" (52) the client in the commission of a crime or fraud. (53) Consider the following factual scenarios and how they implicate the underlying policies of Rule 1.2(d). (54)
A. Hypothetical One: Client Enters with Proper Immigration Documentation and Is Not Asked to Provide Work Authorization Papers
On one end of the spectrum, a client enters with a lawful visa, but does not obtain proper work authorization. The employer hires the employee without asking for papers and thereafter fails to pay the client for work performed. In this instance, the client has not committed a crime; he entered lawfully, and working without papers itself is not a criminal act. (55) Further, since the employer did not ask about the client's immigration status it is unlikely that the client's actions would be construed as fraudulent. (56) In the absence of actual criminal or fraudulent conduct, the lawyer's representation cannot be construed as assisting in a crime or fraud.
B. Hypothetical Two: Client Enters Without Proper Documentation and Is Not Asked to Provide Work Authorization Papers
Moving along the spectrum, suppose the client enters the country by evading inspection, the employer hires the client without asking for papers and thereafter fails to pay the client for work performed. In this example, the client did commit a crime of entry without inspection, (57) which courts have found to be a noncontinuing crime, complete upon entry. (58) If the client thereafter seeks assistance in the wage-and-hour case, does 1.2(d) prohibit a lawyer from counseling or representing the client? There is no ongoing crime or fraud; the crime was completed upon entry and there is no crime or fraud related to the employment because the employer did not ask for papers from the employee. (59) Thus, 1.2(d) would not prohibit a lawyer from counseling or representing a client in this situation.
C. Hypothetical Three: Client Enters Lawfully but Uses a False Social Security Number to Obtain Employment
As the crime becomes more closely connected to the employment, the 1.2(d) analysis is a bit less clear. Assume the client enters lawfully, but uses a fraudulent Social Security number to obtain employment and the employer thereafter fails to pay him for hours worked. Does a lawyer's representation of the client in a wage-and-hour claim in this context assist him in criminal or fraudulent conduct? (60)
It is a crime to use a false Social Security number to obtain benefits (61) but the crime is completed when the false representation is made. (62) Thus, representation of the client to obtain wages he is due does not directly assist him in that completed crime. There are arguments however that the representation indirectly assists the client to remain unlawfully in the United States by providing financial assistance. And, while unlawful presence in the United States is not currently a crime, (63) it may amount to fraud. Is this type of indirect assistance what Rule 1.2(d) was designed to prohibit?
Analyzing the nexus between the lawyer's actions and the client's criminal or fraudulent activity helps to explore this question. (64) While the lawyer in this example has not directly caused the client to remain in the United States, there still exists a potential causal link between the representation and the presence. How close does the connection between litigation for past due wages and the client's unlawful presence in the United States have to be to bar the provision of advice and representation to clients in this context? If the rule were interpreted to prohibit anyone who committed a crime from seeking legal services on an unrelated civil matter, the interpretation would run contrary to deeply rooted concepts of access to justice. (65) Further, the connection between the lawyer's actions and the client's crime in this context seems too remote to bar representation in light of the uncertainty of both the outcome and the consequence of a recovery. There is no guarantee that the lawyer will be successful in her attempt to recover wages for the client and no necessary link between the recovery of money and the client's continued unlawful presence. (66) So, while there is some factual causal proximity (67) between the lawyer's conduct and the client's crime or fraud in this example, the link appears too uncertain and tenuous to construe 1.2(d) as prohibiting a lawyer's advice and representation. (68)
D. Hypothetical Four: Client Enters Lawfully but Uses and Still Possesses False Immigration Documents to Obtain Employment
On the far end of the continuum would be the situation in which the client is committing an ongoing crime that is related to the employment situation. Suppose the client enters lawfully but thereafter uses false immigration documents to obtain employment and still possesses the documents, which is a continuing crime. (69) The client seeks the lawyer's advice and representation to recover damages and pursue reinstatement for a discriminatory termination. In this hypothetical, there are several steps the lawyer might take to comply with Rule 1.2(d). First, since it could be considered an ongoing crime to possess false immigration documents, the ethically prudent lawyer should advise the client that possession of such documents is illegal and recommend that the client no longer retain possession of them. (70) The lawyer could then explain to the client that the ethical rules would not permit her to bring a claim seeking reinstatement based on the false immigration documents. (71) If the client had since obtained lawful immigration status, then the lawyer could proceed with the representation, including a claim for reinstatement. If not, then she could proceed with only the claim for damages based on the discriminatory firing on the grounds that representation in a claim for damages would not further the crime of possession of false immigration documents.
In addition to the application of 1.2(d) to these hypotheticals, construing the rules of professional responsibility so as to deny lawyers the ability to represent undocumented workers could conflict with established legal and public policy principles. Our legal system is premised on the notion that the law should be knowable and that law is, by nature, public information. (72) One of the lawyer's roles is to provide clients access to the law so long as providing access is done within the bounds of the law. (73) In fact, the preamble to the Model Rules of Professional Conduct talks about the lawyer's obligation to assure access to the legal system. (74) If Rule 1.2(d) were interpreted so broadly as to prohibit a lawyer from representing an undocumented worker in employment-related civil litigation, undocumented workers might be legally entitled to relief but unable to access the legal system.
While the legal system does recognize the integral relationship between rights and remedies, (75) having a substantive right without the ability to enforce is not unprecedented. (76) Immunity from suit, standing limitations, narrower standards for private enforcement of civil rights, and legislation prohibiting access to federal courts are all examples where remedies have been restricted by the courts or Congress. (77) However, each of these limitations, whether created by the courts or Congress, has independent rationales underlying it that do not relate to the attorney-client relationship. (78) Rule 1.2(d), on the other hand, is a rule of professional responsibility designed to keep the provision of legal services within proper bounds. (79) As such, the examples from other areas of law are not determinative of the rights without a remedy argument in this context.
It could be argued that because an undocumented worker intentionally ignores legal obligations, other remedies afforded by the legal system should be foreclosed to that individual. Like with the equitable doctrine of unclean hands, wrongdoers should not be able to avail themselves of legal protections when they have otherwise disregarded the law. On the other hand, however, the legal system is full of rights and protections, particularly procedural protections, that apply regardless of whether the underlying litigant broke the law. For example, prisoners are entitled to challenge the conditions of their confinements as well as access the courts for general civil matters, such as divorce, (80) and criminal defendants are entitled to a whole host of procedural protections designed to preserve their rights. (81) Thus, a concern about clean hands would be addressed better by congressional action that defines or limits the substantive rights of undocumented immigrants rather than through rules of professional responsibility.
In sum, while lawyers representing undocumented workers in employment-related civil litigation should be mindful of 1.2(d) prohibitions, it is unlikely that the rule would bar a lawyer's representation of such clients. A lawyer may have a sense of uneasiness representing an undocumented worker, but the rules of professional responsibility do not define a lawyer's role as that of a police officer. (82) While lawyers are prohibited from assisting a client in criminal or fraudulent action, lawyers are not barred from representing an undocumented worker in employment-related civil litigation for which the worker is entitled to relief because the immigration-related crimes or fraudulent actions are most sensibly understood as not sufficiently related to the underlying legal claim.
II. THE RELEVANCE OF IMMIGRATION STATUS TO THE UNDERLYING LITIGATION
The question of whether to protect or disclose immigration status is a difficult one. The legal analysis of a lawyer's ethical obligation regarding disclosure of a client's immigration status initially depends upon whether the information is relevant to the pending litigation. This Part examines the development of the law on the relevance of immigration status in the context of employment-related civil litigation. Specifically, it will explain the state of the law prior to the passage of the Immigration Reform and Control Act of 1986 (IRCA), the import of IRCA's passage, the impact of the Supreme Court's decision in Hoffman Plastic Compounds v. NLRB, and the development of law post-Hoffman.
The question of relevance arises in two different contexts in these cases: first in the discovery stage and second at trial as evidence is being introduced. Pursuant to Federal Rule of Civil Procedure 26(b), "[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." (83) "Relevant," in the discovery stage, is defined very broadly (84) and includes information that may not be admissible at trial but that might lead to the discovery of admissible evidence. (85) Once at trial, the question of what is relevant is governed by Federal Rule of Evidence 401, which defines "relevant evidence" as evidence that tends to make a fact at issue in trial more or less probable than it would have been in the absence of the evidence. (86) The standard of relevance is more stringent at the trial stage, and the information allowed into evidence at trial will necessarily be more narrow than that allowed to be explored in the discovery stage. (87)
Lawyers representing undocumented immigrants in employment-related civil litigation should be prepared to address issues of relevance in both the pretrial and trial stages. (88) The distinction is critical to understanding the lawyer's ethical obligations. If the information is determined relevant to the litigation, then it will be discoverable by, or disclosed to, the other side unless it is privileged. (89) If it is not relevant to the litigation, then the information will be kept confidential (90) and cannot be disclosed unless the lawyer is permitted or mandated to do so pursuant to the...
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