[Federal Register Volume 65, Number 124 (Tuesday, June 27, 2000)]
[Rules and Regulations]
[Pages 39513-39534]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-16052]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 3 and 292

[EOIR No. 112F; A.G. Order No. 2309-2000]
RIN 1125-AA13


 Professional Conduct for Practitioners--Rules and Procedures

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

ACTION: Final rule.

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SUMMARY: This final rule amends the rules and procedures concerning 
professional conduct for attorneys and

[[Page 39514]]

representatives (practitioners) who appear before the Executive Office 
for Immigration Review (EOIR) and/or the Immigration and Naturalization 
Service (the Service). This final rule also includes a provision that 
was promulgated as an interim rule on April 6, 1992, 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 final rule outlines the authority EOIR 
has to investigate complaints and impose disciplinary sanctions against 
practitioners who appear before its tribunals, and clarifies the 
authority of the Service to investigate complaints regarding 
practitioners who conduct business with the Service. This final rule 
permits EOIR and the Service to investigate allegations of ethical 
misconduct and initiate disciplinary proceedings more effectively and 
efficiently while ensuring the due process rights of the practitioner. 
The final rule also reinstates the Board of Immigration Appeals as the 
reviewing body for disciplinary decisions, instead of the Disciplinary 
Committee, as was set forth in the proposed rule. Both the public 
comments and the Department of Justice's (Department) reassessment of 
the appellate review process resolved that, as is presently 
established, Board review of disciplinary decisions is more efficient 
and practical and should therefore remain unchanged. Additionally, this 
final rule enables efficient resolution of frivolous complaints and 
meritorious cases, a consideration critical to, and in the best 
interests of, all parties involved.

EFFECTIVE DATE: July 27, 2000.

FOR FURTHER INFORMATION CONTACT: Charles Adkins-Blanch, Acting General 
Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, 
Suite 2400, Falls Church, Virginia, 22041, telephone (703) 305-0470, or 
Julia A. Doig, Chief Appellate Counsel, Immigration and Naturalization 
Service, 5113 Leesburg Pike, Suite 200, Falls Church, Virginia 22041, 
telephone (703) 756-6257.

SUPPLEMENTARY INFORMATION: Currently, the regulations at 8 CFR 292.3 
require the Service to investigate complaints filed regarding the 
conduct of attorneys and representatives (referred to in the final rule 
as practitioners) 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 of Immigration Appeals (Board) by either party.
    On January 20, 1998, the Service and EOIR published a proposed rule 
in the Federal Register (63 FR 2901) amending parts 3 and 292 of the 
rules and procedures governing professional conduct for practitioners 
who appear before EOIR, which includes the Board and the Immigration 
Courts, as well as the rules and procedures governing professional 
conduct for practitioners who conduct business before the Service. The 
proposed rule included various grounds of discipline and procedures for 
hearings and appeals, which, although somewhat more sophisticated, were 
in many ways similar to the approach of the current regulations. The 
proposed rule was neither written on a clean slate nor did it propose 
to institute a new form of professional discipline; in fact, it was 
merely intended to clarify and improve the existing procedures and, in 
particular, to remove the Service from the enforcement role with 
respect to professional misconduct occurring before the Board and the 
Immigration Courts. The proposed rule did contain a new procedure for 
adjudicating disciplinary complaints. The proposed process included a 
hearing by an adjudicating official appointed by the Director of EOIR 
and a report by that adjudicating official to a three-member 
Disciplinary Committee appointed by the Deputy Attorney General.
    This final rule retains the Service's investigative and 
prosecutorial responsibilities only in disciplinary proceedings for 
those practitioners who conduct business before the Service as an 
adjudicative body, e.g., in asylum proceedings, adjustment interviews, 
and visa petition cases, but transfers these same investigative and 
prosecutorial responsibilities to EOIR for practitioners appearing 
before the Board and the Immigration Courts. This change allows each 
agency to maintain separate jurisdictions over practitioners based upon 
which agency they appear before, while permitting both agencies to 
utilize the same hearing and appeal process. This change will result in 
a fair and consistent application of the rules.
    In response to the proposed rulemaking, EOIR and the Service 
received 491 comments. Identical form letters from South Florida 
practitioners totaled 130, with 17 additional individual letters from 
the same region. These letters account for approximately 30% of the 
total comments received. Another 277 names were signed to one petition-
style letter prepared by the national office of the American 
Immigration Lawyers Association (AILA), accounting for approximately 
57% of the total comments received. Some of the public comments were 
supportive; one in particular recounted the detrimental effect that one 
practitioner's negligence had on two unsuspecting immigrants. Many 
others, however, were opposed to any rule that would regulate 
practitioners' professional conduct. EOIR and the Service gave full 
consideration to each and every public comment submitted during the 
comment period. We first submit some general authorities and then 
address the concerns expressed in the comments in the following 
passages.
    In exercising its plenary powers over immigration, Congress has 
granted express authority to the Attorney General to ``establish such 
regulations * * * as (s)he deems necessary for carrying out (her) 
authority'' under the laws relating to the immigration and 
naturalization of aliens. 8 U.S.C. 1103(a)(3). Congress also provided 
that aliens in immigration proceedings ``shall have the privilege of 
being represented (at no expense to the government) by such counsel, 
authorized to practice in such proceedings, as he shall choose.'' 8 
U.S.C. 1362 (emphasis added). In so doing, Congress vested implied 
authority with the Attorney General to prescribe standards of conduct 
and rules of procedure that are applicable to practitioners who appear 
before the Board, the Immigration Courts, and the Service.
    In the proposed rule, EOIR and the Service noted that the primary 
purpose of prescribing rules and setting standards for determining who 
may practice before the Board, the Immigration Courts, and the Service, 
and for adopting procedures for disciplining those practitioners who 
fail to conform to such standards, includes the protection of the 
public, the preservation of the integrity of the Immigration Courts, 
and the maintenance of high professional standards. EOIR and the 
Service are committed to these important public interest objectives 
through the fair and efficient administration of this final rule.
    While most practitioners adequately represent their clients in 
immigration matters, a small minority of practitioners do not meet the 
minimum

[[Page 39515]]

standards set forth in this rule and an even smaller minority may take 
unfair advantage of the very clients they have promised to help. Others 
have engaged in conduct that has rendered them unfit to practice law, 
as determined by the state courts which originally licensed them to 
practice. The practitioners who should not, and in fact cannot, be 
permitted to continue to practice before EOIR and the Service are the 
practitioners who will primarily be affected by this rule.

General Comments

    A chief concern of many commenters was that this rule would have a 
chilling effect on an immigration practitioner's ability to advocate 
zealously for his or her client, suggesting that both the First 
Amendment right to freedom of speech and the Sixth Amendment right to 
counsel were implicated by such a rule. A similar majority argued that 
it is not the function of EOIR or the Service to control the conduct of 
attorneys who have been admitted to the practice of law by state 
courts. Many commenters expressed concern that sanctions imposed 
pursuant to this rule could cut off a practitioner's livelihood or 
jeopardize his or her professional reputation, although some 
acknowledged a need to protect clients from unscrupulous immigration 
practitioners, citing incompetent and/or unethical conduct by 
practitioners. One commenter was particularly concerned with protecting 
non-profit agencies from the burdens of potentially higher professional 
liability policies, more staff training, and better case-screening 
procedures.
    Several commenters suggested that EOIR and the Service pattern the 
proposed disciplinary rule after the disciplinary process applicable to 
representatives who appear before Administrative Law Judges in the 
Social Security Administration (SSA) and the Internal Revenue Service 
(IRS). Under such advisement, EOIR and the Service consulted SSA and 
IRS regulations in drafting this disciplinary rule and adopted many of 
the provisions promulgated by those agencies.
    The following paragraphs provide a section-by-section summary of 
the comments received, followed by the Department's response. Many of 
the comments were lengthy and we have attempted to summarize the 
commenters' views as accurately as possible. We have responded to all 
of the relevant issues raised in the comments and have highlighted 
where revisions have been made to the proposed rule. Please note that 
section numbering in the final rule has been revised.

Sections 3.101(a) and 3.106(a)--Adjudicating Officials and Composition 
of the Disciplinary Committee

    Comments. Some commenters suggested that an inherent conflict 
exists given that adjudicating officials and the Disciplinary Committee 
have a connection to EOIR that taints the entire disciplinary process. 
Comments regarding the composition of the Disciplinary Committee 
included the following: The composition of the Committee is vague; the 
pool of possible members should be specified with term limits; no 
qualifications for the Committee have been specified; the Committee 
should be independent of the Department; the Committee should include a 
non-lawyer; the Committee should include a member of the private bar; 
and the EOIR representative should not serve on the Committee if he or 
she is also the complainant in a particular case. Several commenters 
also suggested that an Immigration Judge should not serve as the 
adjudicating official in a case where he or she is also the 
complainant, an Immigration Judge should not serve as the adjudicating 
official in any case involving a practitioner who regularly appears 
before him or her, and the disciplinary hearing should be conducted by 
an Administrative Law Judge (ALJ) pursuant to the Administrative 
Procedure Act (APA).
    Other commenters assumed that Immigration Judges would be 
prejudiced against aliens while favoring the government and, therefore, 
would not be fair adjudicating officials. Some commenters noted that 
the rule provides no guidelines for appointing adjudicating officials 
and no opportunity to submit briefs or arguments to the Disciplinary 
Committee.
    Response. Although some commenters concluded that the connection 
between adjudicating officials and EOIR taints the disciplinary 
process, there was no specific suggestion of how such a connection 
causes conflict or unfairness. Moreover, there is little merit to the 
argument of inherent conflict, since the Board and Immigration Judges 
are all part of the Department and yet act independently in fairly 
adjudicating the nation's immigration laws. A connection between EOIR 
and the proposed disciplinary process is not inherently unfair nor does 
it create an inherent conflict. Precedent for such a process exists 
within the disciplinary system used by the Social Security 
Administration, which uses its own ALJs as hearing officers and its own 
Appeals Council as a reviewing panel.
    However, EOIR and the Service have revised several of the 
provisions in this section in response to the comments that we 
received. The rule has been revised to provide that an Immigration 
Judge shall not serve as the adjudicating official in cases where he or 
she is also the complainant in a case (Sec. 3.106(a)(1)(i)). Also, an 
Immigration Judge shall not serve as the adjudicating official in any 
case involving a practitioner who regularly appears before him or her 
(Sec. 3.106(a)(1)(i)). In the final rule, the Chief Immigration Judge 
will appoint the adjudicating official in most cases 
(Sec. 3.106(a)(1)(i)).
    More significantly, in light of the comments received, EOIR and the 
Service have, in the final rule, replaced the proposed Disciplinary 
Committee with the Board in all respects. Since the Board already has 
the authority to implement the existing disciplinary system under 
Sec. 3.1(d)(3), and to hear appeals of disciplinary sanctions under 
Sec. 292.3(b)(1)(vi), revising the final rule to have appeals go to the 
Board results in no change in the Board's current (and long-standing) 
role.
    We have identified a number of reasons for retaining the Board as 
the appellate body for disciplinary decisions made by adjudicating 
officials. First, the Board provides practitioners subject to these 
proceedings with an established appeal process. All of the procedural 
practices concerning briefing schedules, transcripts, motions, and oral 
arguments will be consistent for both immigration proceedings and 
disciplinary proceedings. Most practitioners know the Board's appeal 
procedures and will be familiar with them when appealing any 
disciplinary decision. Second, the Board has the immigration expertise 
which may prove critical where a practitioner's conduct is intricately 
intertwined with the legal issues in an underlying immigration case. 
Third, the Board, unlike the Disciplinary Committee, has the ability to 
publish precedent decisions, thereby providing practitioners and the 
public with authoritative interpretations of the regulations. Fourth, 
it is logical for the Board to exercise ultimate control over 
practitioners who appear before EOIR, and also consistent with state 
court practice of having the highest appellate level oversee the 
ultimate discipline of practitioners. Finally, the Board is structured 
to hear cases on a regular, consistent basis and has the support 
resources (attorney staff, paralegals,

[[Page 39516]]

clerks) to fully staff a disciplinary system.
    By retaining the Board's review authority, we anticipate the 
issuance of timely decisions by members possessing the requisite legal 
and procedural expertise, as well as adjudicatory experience. This 
assumption is based on the fact that the Board has reviewed 
disciplinary cases on appeal throughout the existence of the current 
disciplinary program. Some of the comments to the proposed rule raised 
opposition to the ``in-house'' nature of the Disciplinary Committee. 
However, given that the Board is an established independent adjudicator 
within the Department, the revised appeal structure should dispel any 
concerns about an ``in-house'' review.
    One commenter suggested disciplinary hearings should be conducted 
pursuant to the Administrative Procedure Act (APA) (codified at 5 
U.S.C. 551 et seq.), which primarily regulates the processes of 
rulemaking and adjudication by agencies with substantial independent 
authority in the exercise of specific functions. Determining whether 
the APA applies to disciplinary proceedings conducted under this rule 
requires careful consideration of several factors.
    As stated above, Congress has granted authority to the Attorney 
General to set standards for determining who may practice before the 
Board, the Immigration Courts, and the Service, and to prescribe rules 
of procedure for disciplining those who fail to conform to such 
standards. An agency with the power to admit practitioners has the 
authority to disbar or discipline them for professional misconduct.
    Also, since deportation proceedings are not subject to the APA, see 
Marcello v. Bonds, 349 U.S. 302, 309 (1955) (Administrative Procedure 
Act is not applicable to deportation proceedings under the Immigration 
and Nationality Act); Castillo-Villagra v. INS, 972 F.2d 1017, 1025 
(9th Cir. 1992) (Immigration and Nationality Act, rather than 
Administrative Procedure Act, controls exclusively in deportation 
proceeding), disciplinary proceedings pursuant to 8 U.S.C. 1362 
historically have not been conducted under the APA, see Herman v. 
Dulles, 205 F.2d 715, 717 (D.C. Cir. 1953) (existing powers of 
administrative agencies to control practice by counsel who appear 
before them are not changed by the Administrative Procedure Act, citing 
Attorney General's Manual on the Administrative Procedure Act, 1947, 
p.66). Furthermore, no statutory provision exists which requires the 
adjudication of such disciplinary proceedings under the APA. See United 
States v. Independent Bulk Transport, Inc., 480 F. Supp. 474, 477 
(S.D.N.Y. 1979) (provisions of APA apply only if another statute 
requires that they be utilized); see also Amalgamated Meat Cutters and 
Butcher Workmen v. Connally, 337 F. Supp. 737, 761-62 (D. D.C.1971).
    Moreover, this rule provides ample protections for practitioners 
subject to discipline, analogous to procedures provided in the APA and 
consistent with the delineated public interest objectives of the 
Department. Such protections include timely notice of hearings and the 
opportunity to be heard with respect to the charges lodged.
    In addition, subjecting disciplinary proceedings to the strictures 
of the APA is unnecessary, and it would also be impractical and 
burdensome given that Immigration Judges (who comprise the largest pool 
of potential adjudicating officials) do not adjudicate cases pursuant 
to the APA. Finally, as stated in the supplementary information to the 
proposed rule, practitioners subject to discipline may avail themselves 
of judicial review pursuant to 28 U.S.C. 1331 upon issuance of a final 
administrative order.
    Therefore, in light of the above considerations and in order to 
maintain consistency with, among other things, the current disciplinary 
rule, Board disciplinary decisions that have been upheld by the Federal 
courts, and established Immigration Court practices, the Department has 
determined that disciplinary hearings will be conducted in the same 
manner as immigration proceedings.
    The proposed rule contained no provision for briefs to be submitted 
or oral arguments to be heard before the Disciplinary Committee. 
However, now that the rule retains the Board as the appellate body in 
disciplinary proceedings, the regulations that govern oral argument 
(see 8 CFR 3.1(e)) and the submission of briefs on appeal (see 8 CFR 
3.3(c)) are incorporated by reference in the final rule.

Sections 3.103 and 292.3(c)--Immediate Suspension and Summary 
Proceeding

    Comments. Several commenters suggested that an immediate suspension 
provision could create an unfair and prejudicial result based on ``a 
skeletal complaint filed by a disgruntled client.'' The commenters 
expressed concern that a practitioner could be suspended based on mere 
allegations of misconduct. This presumption is incorrect, as explained 
below. Others felt that a criminal conviction or state bar disciplinary 
action should be ``final'' before an administrative decision is 
rendered; otherwise ``a practitioner will have been deprived of his or 
her livelihood during that period'' should the conviction or 
disciplinary action be overturned or vacated.
    Response: The disciplinary rule provides that a practitioner may be 
subject to immediate suspension and a summary proceeding based only 
upon either (i) disbarment, suspension, or resignation with an 
admission of misconduct as found by a state or Federal court or (ii) a 
conviction for a serious crime. The language in this provision is 
similar to that found in the Rules for Disciplinary Enforcement for the 
United States Court of Appeals for the District of Columbia Circuit, 
the District of Columbia Court of Appeals' Rules Governing the Bar, and 
the California Rules of Professional Conduct.
    The immediate suspension provision, therefore, is designed to 
protect the public from practitioners who have a criminal conviction, 
are no longer in ``good standing'' as set forth in 8 CFR 1.1(f), or who 
have otherwise forfeited or encumbered their law license. Such 
misconduct does not arise from ``a skeletal complaint filed by a 
disgruntled client.'' Rather, based upon facts proven by the requisite 
high standard of proof (``clear and convincing evidence'' in most 
disciplinary matters and ``beyond a reasonable doubt'' in criminal 
matters) and applicable law, a state or Federal court has already made 
a determination that the practitioner has engaged in serious 
misconduct. As amplified in the final rule, such a determination, as 
evidenced by a certified copy of a court record or order, brings 
``title deeds of high respect'' and must be accorded great deference.
    Furthermore, a rule that would permit a practitioner who has been 
criminally convicted of a serious crime to continue to practice before 
the Board, the Immigration Courts, or the Service pending all appeals 
of the underlying matter would expose the court's proceedings to the 
intervention of disqualified, unfit practitioners and subject clients 
to unnecessary risk. However, recognizing that a practitioner may seek 
to appeal such a conviction during the period of his immediate 
suspension, the rule has been amended so that no final administrative 
disciplinary order may be entered until all direct appeals of the 
underlying conviction have been exhausted. Additionally, the final rule 
provides that the Board may set aside an immediate suspension order 
``when it appears in the interest of justice to do so.''

[[Page 39517]]

    The final rule provides an attorney with an opportunity to rebut 
the presumed validity of the underlying disciplinary order in a summary 
proceeding by demonstrating that: (1) The underlying disciplinary 
proceeding was so lacking in notice or opportunity to be heard as to 
constitute a deprivation of due process; (2) there was such an 
infirmity of proof establishing the attorney's 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 (3) the imposition of discipline by the 
adjudicating official would result in grave injustice. The proposed 
rule denied an attorney admitted in only one jurisdiction the 
opportunity to rebut the presumption of professional misconduct. This 
provision has been eliminated in the final rule. This procedure 
comports in part with, among other jurisdictions, the United States 
Supreme Court's practice in imposing reciprocal discipline.
    Additionally, the proposed rule made the rebuttable presumption 
safeguards available to practitioners in summary proceedings premised 
on either reciprocal discipline for professional misconduct or 
conviction of a serious crime. However, consistent with the practice of 
state bars, we have limited the rebuttable presumption safeguards so 
that they apply in reciprocal discipline matters only, rather than 
extend them to criminal conviction matters, and amended the rule 
accordingly. Thus, upon filing a certified copy of a court record 
evidencing a criminal conviction in a summary proceeding based thereon, 
the only issue to be determined shall be the nature of the discipline 
to be imposed. Under the final rule, absent extraordinary 
circumstances, practitioners will be prevented from launching 
collateral attacks on criminal convictions in a summary proceeding.

Section 3.102--Grounds

    General Comments. Several commenters suggested that the rules for 
sanctions are too vague and do not contain the level of detail, 
specificity, and explanation provided by the American Bar Association 
Model Rules of Professional Conduct (ABA Model Rules). However, others 
agreed that since the rule closely tracks the ABA Model Rules and that 
those rules are undergoing revision, this Federal rule should undergo 
the same revision. Still other commenters suggested that EOIR and the 
Service use the IRS disciplinary rules as a guide.
    Commenters suggested that the rule be expanded to allow for 
disciplining lawyers who assist in the unauthorized practice of law, 
e.g., attorneys who sign their names to forms prepared by non-lawyers 
without any attorney input or oversight. Some commenters went on to 
suggest that the rule should reach beyond disciplining lawyers only and 
expand to discipline visa consultants and notarios who engage in the 
unauthorized practice of immigration law, such that any fee collected 
by a notario would be considered ``excessively gross'' and any 
application, petition, or brief prepared by a notario would be 
considered negligence per se.
    Response. As stated in the supplementary information to the 
proposed rule, the revised grounds for disciplinary sanctions include 
language, wherever possible, that is similar, if not identical to, the 
ABA Model Rules. EOIR and the Service gave serious consideration to the 
suggestion that a ground for disciplinary sanctions that addresses the 
problem of the unauthorized practice of law be included in the final 
rule. The difficulty in addressing this problem involves a 
jurisdictional issue. The jurisdiction of this rule is limited to 
practitioners, i.e., attorneys, accredited representatives, and other 
persons described in 8 CFR 292.1(a). It cannot reach to persons who are 
not within one of these categories, such as visa consultants or 
notarios, because the statutory language at 8 U.S.C. 1362, which 
establishes the framework for the attorney discipline process, refers 
only to counsel ``authorized to practice in (removal and appeal) 
proceedings.'' However, in response to the comments, EOIR and the 
Service have added an additional ground for discipline in the final 
rule which renders a practitioner subject to discipline if he or she 
assists a non-practitioner in the performance of any activity that 
constitutes the unauthorized practice of law.

Section 3.102(a)--Grossly Excessive Fees

    Comments. Many commenters expressed concerns that EOIR and the 
Service would be ``second-guessing the amount of work attorneys 
dedicate to their cases or the fees they charge.'' They stated that 
fees depend on many subjective factors and further concluded that only 
private practitioners have the experience to know how to appropriately 
set fees. Other commenters pointed out that since fees are negotiated 
with a client up front, the client has the option to go to a different 
attorney if he or she finds that the fees are too high. Some commenters 
noted that making a determination of what is ``grossly excessive'' will 
require probing into confidential client information, while others 
inquired as to how much weight will be given to the different factors 
used in determining what is ``grossly excessive.'' While some 
commenters concluded that state bar associations generally do not 
involve themselves in financial arrangements between lawyers and 
clients, others suggested that federal regulation is unnecessary 
because state bar associations can review fee disputes. Still others 
suggested this was a means by which EOIR and the Service would punish a 
practitioner who has been successful in defending an immigration 
client.
    Response. It is important to note that the primary purpose of this 
provision is to protect clients, not to interfere with attorney-client 
fee arrangements. The ``grossly excessive fees'' standard, which exists 
in the current rule and was retained in the proposed rule, is higher 
than the ``reasonable fees'' measure set out under the ABA Model Rules. 
The ``grossly excessive'' standard is similar to the ``unconscionable'' 
standard used by the IRS in its regulations. See 31 CFR 10.28.
    Unlike the general provision in the existing regulation, the 
provision in the final rule enumerates factors to be considered in 
determining if a fee is grossly excessive that are virtually identical 
to those found in the ABA Model Rules. These factors include: 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 practitioner; 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 practitioner or 
practitioners performing the services. As other jurisdictions have 
done, a balancing test may be crafted based upon the various factors in 
deciding whether a practitioner has violated the rule. These factors 
will improve the fair assessment of fees by providing practitioners 
with notice of the variables to be used in determining if a fee is 
grossly excessive. Investigating allegations of grossly excessive fees 
may require probing into confidential client information where 
absolutely necessary,

[[Page 39518]]

and then only with the client's permission.
    It is important to note that this rule is not designed to set fee 
schedules or arbitrate fee disputes between practitioners and their 
clients. Neither EOIR nor the Service intends to engage in ``second-
guessing'' negotiated fee arrangements. Expert jurists in immigration 
law who command higher fees for their services than other immigration 
practitioners would not be in violation of the regulations based solely 
on their fee. However, we are aware of instances in which practitioners 
have preyed on unsuspecting clients by charging them exorbitant fees 
for handling relatively routine immigration matters, or worse yet, have 
charged clients for services that were never rendered at all. 
Protecting clients from practitioners who charge such grossly excessive 
fees is the purpose of this provision.

Section 3.102(b)--Bribes

    Comment. One commenter suggested that expanding the rule to include 
``attempt to bribe'' as well as bribery was unnecessary and that 
proving ``attempt to bribe'' would be difficult and should not be 
included in the rule.
    Response. This basic language is in the current rule. Moreover, it 
would be inadvisable to limit this rule to only those persons who 
successfully bribe an individual, but not include those who engage in 
conduct that constitutes an attempt to bribe. The act of attempted 
bribery is as serious as the act of bribery itself and certainly 
compromises the integrity of the practitioner who engages in such 
behavior. Therefore, we did not adopt this suggestion. It should be 
noted that the SSA regulations also have a similar provision which 
prohibits any ``attempt to influence, directly or indirectly, the 
outcome of a decision, determination or other administrative action by 
offering or granting a loan, gift, entertainment or anything of value 
to a presiding official, Agency employee or witness who is or may 
reasonably be expected to be involved in the administrative 
decisionmaking process.'' 20 CFR 404.1740(c)(6).

Section 3.102(c)--False Statements and Willful Misrepresentation

    Comments. Several commenters stated that this provision is too 
vague and that the Department should provide more guidance. Another 
commenter suggested that a ground for discipline should be included to 
deal with preparation of documents, pleadings, papers, etc., that are 
false and misleading and are prepared by attorneys who fail to disclose 
their names and addresses as preparers.
    Response. The language in this provision closely resembles the 
language in the current regulation, combined with language from ABA 
Model Rule 3.3. The language in the rule would not preclude pursuing a 
practitioner who prepares false or misleading unsigned documents, 
although the ability to prove who prepared such documents might be 
difficult. Immigration Judges across the country have indicated that 
the filing of false or fraudulent documents is a growing problem. This 
problem includes the submission of once valid documents that have been 
altered (e.g., foreign birth certificates), falsely created documents 
(e.g., visas or letters from religious or political groups), and valid 
documents that contain false information (e.g., asylum applications). 
This provision as written is broad enough to deal with these types of 
fraud. It should be noted that the SSA regulations have a similar 
provision which states that an individual may not ``(k)nowingly make or 
present, or participate in the making or presentation of, false or 
misleading oral or written statements, assertions, or representations 
about a material fact or law.'' 20 CFR 404.1740(c)(3).

Section 3.102(d)--Soliciting Professional Employment

    Comment. One commenter suggested that the language in the rule 
concerning solicitation may conflict with state bar solicitation 
regulations already in place, creating difficulties for practitioners 
who may wish to advertise in more than one area.
    Response. The language in this provision closely resembles the 
language in ABA Model Rule 7.3 and in the IRS regulations at 31 CFR 
10.30. This provision is designed to deal with a growing number of 
instances that have been brought to our attention concerning the use of 
``runners'' in and around the Immigration Courts. These persons are not 
authorized to practice immigration law themselves but approach 
potential clients on behalf of individuals who are licensed 
professionals. As noted in the Comment to ABA Model Rule 7.3:

    There is a potential for abuse inherent in direct in-person or 
live telephone contact by a lawyer with a prospective client known 
to need legal services. These forms of contact between lawyer and a 
prospective client subject the layperson to the private importuning 
of the trained advocate in a direct interpersonal encounter. The 
prospective client, who may already be overwhelmed by the 
circumstances giving rise to the need for legal services, may find 
it difficult fully to evaluate all available alternatives with 
reasoned judgment and appropriate self-interest in the face of the 
lawyer's presence and insistence upon being retained immediately. 
The situation is fraught with the possibility of undue influence, 
intimidation, and over-reaching.

Model Rules of Professional Conduct Rule 7.3 cmt. (1993).

Section 3.102(g)--Contumelious or Obnoxious Conduct

    Comments. Many commenters registered their objections to this 
provision. They argued that subjecting practitioners to discipline 
based upon the concept of ``obnoxious behavior'' would result in 
practitioners being unable to represent or defend their clients 
zealously and would require them to be subdued or ``nice'' in order not 
to offend EOIR or the Service. As one commenter put it: ``(O)ne 
person's obnoxious behavior is another person's zealous 
representation.'' Another commenter feared that ``(a) practitioner 
could be disciplined if, in the opinion of the Disciplinary Committee, 
he talks too fast or too slow, uses his hands too much when speaking, 
or has some nervous habit.''
    Still another commenter concluded that the threat of discipline 
based on this ground would impair the attorney/client relationship 
because practitioners would be afraid to advocate zealously on behalf 
of their clients for fear that such representation would be perceived 
as obnoxious. Some commenters suggested that it would be impossible for 
EOIR and the Service to apply this rule in a consistent and fair 
manner, while others noted that state bars already deal with 
``contumelious'' or ``obnoxious'' conduct of practitioners. Several 
commenters concluded that such a disciplinary ground would lead to 
frivolous complaints and unnecessary litigation.
    Response: Nothing in this provision is intended to impinge upon a 
practitioner's zealous representation of his or her client. However, 
even zealous representation does not entitle a practitioner to engage 
in contumelious or obnoxious conduct. Any suggestion that this 
provision will be used, as one commenter suggests, if a practitioner 
``talks too fast or too slow, uses his hands too much when speaking, or 
has some nervous habit'' is without basis. Behavior disciplined under 
this provision will be necessarily extreme and without any acceptable 
premise.
    This provision is in the current rule and is retained in the final 
rule. This provision is included primarily to address the type of 
conduct that would rise to the level of contempt in a court

[[Page 39519]]

of general jurisdiction. IRS regulations contain a similar provision 
for contemptuous conduct. See 31 CFR 10.51(i). Until recently, 
Immigration Judges have not had the authority to issue contempt 
citations for the type of behavior described in this provision. The 
only alternative for a judge was to file a disciplinary complaint with 
the Service. Immigration Judges were recently given contempt authority 
in section 304 of the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996, Pub. L. 104-208 (IIRIRA), 8 U.S.C. 
1229a(b)(1); however, this authority will be exercised only after the 
Department issues regulations. It is expected that the contempt 
regulations, once published, will provide that a practitioner can be 
disciplined under the Professional Conduct Rules when the practitioner 
has been sanctioned for contemptuous conduct by an Immigration Judge 
pursuant to 8 U.S.C. 1229a(b)(1). A finding of contempt will become a 
prerequisite to the imposition of disciplinary action pursuant to this 
subsection. Therefore, the current language will be retained in the 
final rule, pending amendment by the contempt regulations, which will 
be published in the near future.

Section 3.102(h)--Convictions/Crimes

    Comments. Some commenters found the definition of ``serious crime'' 
to be overly broad. While some commenters argued that a practitioner 
might lose his or her livelihood for committing a minor offense, others 
concluded that the conviction that forms the basis for disciplinary 
action might have no bearing on the practitioner's ability to practice 
immigration law. Several commenters found the retroactivity aspect of 
this provision to be unfair, as well as the notion that a practitioner 
who has filed a timely appeal from a criminal conviction or state 
disciplinary finding would still be subject to discipline under the 
rule. Several commenters pointed out that practitioners in each state 
will be held to different standards of conduct because the definitions 
of crimes vary from state to state.
    Response: The definition of ``serious crime'' is taken from the 
Rules of Disciplinary Enforcement for the United States Court of 
Appeals for the District of Columbia. A ``serious crime'' as defined in 
the rule includes ``any felony.'' Any practitioner who has been 
convicted of a felony has seriously undermined his professional 
integrity and reputation and, as a result, has jeopardized his ability 
to continue to represent aliens before the Board, the Immigration 
Courts, and the Service. Lesser offenses included within the definition 
of a ``serious crime'' are offenses that involve moral turpitude, such 
as fraud, bribery, extortion, deceit, theft, misappropriation, and 
false swearing. A conviction for any of these crimes calls into 
question a practitioner's ability to perform his or her duties in a 
manner which upholds the integrity of the profession.
    Moreover, the magnitude of interests to be affected by the 
decisions of EOIR and/or the Service requires that those who represent 
individuals before either agency be persons whose qualities as 
practitioners will secure proper service to their clients and assist in 
the discharge of important agency duties. Additionally, there is no 
requirement in the authorities or by practice that an incident for 
which the disciplinary authority seeks to bring charges must relate to 
a proceeding or pending proceedings.
    One commenter noted that the regulation requiring a practitioner to 
notify EOIR of any conviction for a serious crime is prospective while 
the actual ground for disciplinary action based on a conviction for a 
serious crime may be retroactive. Convictions for serious crimes--
whether they occur before or after the effective date of the final 
rule--call into question a practitioner's fitness to represent aliens. 
A rule that would limit the criminal conviction ground to only those 
practitioners convicted after the effective date of the rule would 
substantially hamper the Department's goals of protecting the public 
and preserving the integrity of immigration proceedings. Therefore, 
Sec. 3.102(h), which is consistent with the prior rule, has not been 
amended because applying this section only to convictions that occur 
after the effective date of the rule would undermine the Department's 
goals.
    Several commenters raised a question with regard to the 
practitioner who has appealed his or her conviction, stating that such 
a person should not be subject to discipline during pendency of an 
appeal. We agree. Therefore, we have added language in Secs. 3.103(b) 
and 292.3(c)(2) that prevents imposition of final discipline arising 
out of a criminal conviction until direct appeals of the underlying 
conviction have been exhausted. Notwithstanding, we note that given the 
grave nature of criminal proceedings and any resulting conviction or 
plea, a practitioner may be subject to an interim order of suspension 
under the regulations pending the outcome of any such appeal.
    Once again, the primary objective of this rule is to protect the 
public and preserve the integrity of adjudicative immigration 
processes. Any practitioner who has been convicted of a serious crime 
should be held accountable for his or her actions, including loss of 
the privilege to practice before the Board, the Immigration Courts, and 
the Service.

Section 3.102(i)--False Certification of a Copy of a Document

    Comment. One commenter suggested that the element of intent be 
added to the rule.
    Response: In response to this comment, we have revised this ground 
by adding the element of intent.

Section 3.102(j)--Frivolous Behavior

    Comments. Some commenters expressed concern that, under this 
provision, practitioners might be inhibited from putting forth an 
unpopular or unorthodox interpretation of the law; an attorney could 
make a losing argument for ten years before the Board and then may 
prevail in the eleventh year. It was suggested that an attorney's job 
is to advocate the ``good points'' of the law as well as to challenge 
the ``wrong'' side of rules and decisions. Others feared retribution 
for taking actions disagreeable to EOIR or the Service. Several 
commenters believed that the rule should include a requirement that a 
practitioner zealously represent his or her client.
    Response: Sanctions for frivolous behavior are required in section 
545 of the Immigration Act of 1990 (8 U.S.C. 1230(b)(6)). This 
provision implements the statutory language and has previously been 
included at 8 CFR 292.3(a)(15). The language in this provision is 
closely patterned after the language in Rule 11 of the Federal Rules of 
Civil Procedure (FRCP). Precautions are provided to allow for both 
advocacy grounded in fact or warranted by existing law or a good faith 
argument for the extension, modification, or reversal of existing law 
or the establishment of new law. Whereas the IRS regulations define 
frivolous as ``patently improper,'' the language in the final rule 
reflects a more specific set of standards and does not interfere with 
the zealous advocacy of a practitioner.

Section 3.102(k)--Ineffective Assistance of Counsel.

    Comments. One commenter suggested that ``[t]here should be a limit 
of one year on the period of time following the alleged fact for a 
complaint to be brought.'' One commenter concluded that this provision 
would inhibit the zealous representation of immigrants;

[[Page 39520]]

another commenter went so far as to conclude that the fear of 
disciplinary action ``will keep practitioners from telling their 
clients of the mistakes they have made and instead of fixing the 
mistakes, they would let them be.'' Another commenter suggested that 
such a provision may prevent one practitioner from filing a motion to 
reopen based on ineffective assistance of counsel because the other 
practitioner could lose his or her livelihood. Others concluded that 
since the ABA Model Rules do not make malpractice a disciplinary 
offense, neither should the final rule, given that clients already have 
the remedy of suing a practitioner for legal malpractice. Several 
commenters believed that the final rule goes against the traditional 
rules of professional conduct, while others felt that the state bar 
disciplinary process is adequate.
    Response: The comment concerning the time period within which a 
complaint can be filed based on an ineffective assistance of counsel 
claim suggests that the time period be limited to one year from the 
alleged misconduct, rather than five years as provided in the rule. 
However, because a finding of ineffective assistance of counsel must be 
made by the Board or the Immigration Court before such a complaint 
would be considered, and since many cases take longer than one year to 
adjudicate fully, a longer period of time is required in order to 
protect the complaining alien. Also, a shorter period of time might 
unfairly discourage or prevent an alien from bringing a complaint 
against his or her former attorney or accredited representative. 
However, in order to strike a balance on this point, the Department has 
amended the rule to require that a complaint based on this ground be 
filed within one year of the finding of ineffective assistance of 
counsel made by the Board or the Immigration Court.
    It is worrisome to believe that a practitioner would risk a 
client's case, and possibly his client's ability to remain in this 
country, and not resolve a potential problem by choosing instead to 
remain idle in order to protect himself from an ineffective assistance 
of counsel claim that would survive only if due process had been denied 
as a result of the practitioner's conduct, i.e., where the proceeding 
was so fundamentally unfair that the alien was prevented from 
reasonably presenting his case. See Matter of Lozada, 19 I&N Dec. 637, 
638 (1988); see also Ramirez-Durazo v. INS, 794 F.2d 491, 499-500 (9th 
Cir. 1986). Also, one must show that he was prejudiced by his 
representative's performance. See Mohsseni Behbahani v. INS, 796 F.2d 
249, 251 (9th Cir. 1986).
    Therefore, it is unlikely that a practitioner who has ``made a 
mistake'' in a client's case would allow such a mistake to languish 
when he could still resolve the problem without prejudice to the client 
and, in all probability, no longer be subject to an ineffective 
assistance of counsel claim. As is mentioned throughout the 
supplementary information in the proposed rule, these regulations are 
intended to preserve the fairness and integrity of the adjudicative 
process, secure proper service to aliens subject to proceedings before 
the Immigration Courts and the Service, and ensure minimal 
qualification standards for practitioners.
    Regarding the commenter who suggested that malpractice claims 
should suffice as a remedy, it is certainly true that a client may sue 
a practitioner for malpractice in such instances. However, speculation 
about the availability of such a legal remedy should not preclude EOIR 
or the Service from pursuing disciplinary action. While malpractice 
lawsuits may result in monetary compensation for a particular client, 
they do little to protect other clients from the same fate.

Section 3.102(l)--Repeated Failure To Appear for Scheduled Hearings in 
a Timely Manner

    Comment. One commenter felt the phrase ``repeatedly fails to 
appear'' was too vague.
    Response: This provision does not define the number of occasions 
that will amount to ``repeated'' failures to appear. Such a definition 
is not included in the rule because choosing an arbitrary number would 
hamper the ability to utilize prosecutorial discretion when considering 
a practitioner's explanation for his or her absences. In 1998, the 
Social Security Administration published a final rule entitled 
``Standards of Conduct for Claimant Representatives,'' see 63 FR 41404 
(1998), which includes a provision similar to the provision in the 
proposed rule regarding repeated absences from scheduled hearings. It 
notes that ``such conduct adversely affects claimants, diminishes the 
ability of the Agency to operate efficiently and harms other applicants 
by disrupting schedules and work flow.'' Id. at 41406. For the same 
reasons, EOIR and the Service have added a similar provision in the 
rule, with the addition of a ``good cause'' element.

Section 3.102(m)--Assisting in the Unauthorized Practice of Law

    Comment. Several commenters suggested that this rule address the 
unauthorized practice of law issue. See General Comments above.
    Response. In response to the comments, EOIR and the Service have 
added an additional ground for discipline in the final rule which 
renders a practitioner subject to discipline if he or she assists a 
non-practitioner in the performance of any activity that constitutes 
the unauthorized practice of law. This ground is a necessary addition 
to the rule in order to protect the public from the mistakes of 
untrained and unqualified individuals, as well as the schemes of 
unscrupulous immigration practitioners, and reflects the concerns of a 
number of commenters.

Sections 3.104(b) and 292.3(d)(3)--Preliminary Inquiries

and

Sections 3.105(a) and 292.3(e)(1)--Notice of Intent To Discipline

    Comments. A large number of commenters were concerned that the 
disciplinary process may be used to intimidate, retaliate, or otherwise 
harass practitioners who are successful in advocating against the 
government in immigration proceedings. One commenter suggested that 
this rule might be used to ``intimidate and control any lawyer who 
might be so bold as to file a motion to recuse a judge (or) seek to 
enter an objection upon the record.'' The fact that the Department 
components (EOIR and the Service) investigate disciplinary cases and 
issue Notices of Intent to Discipline prompted some commenters to raise 
due process and conflict of interest issues. One commenter suggested 
that in order to ``move cases along,'' Immigration Judges will resort 
to the disciplinary process and effectively chill aggressive 
representation. Another commenter concluded that this rule is a way for 
EOIR to ensure that ``as many non-citizens as possible be deported by 
taking the lawyers out of the equation.''
    One commenter suggested that the Notice of Intent to Discipline be 
served by personal service and that the practitioner should be notified 
of any complaint and be given an opportunity to respond before any 
charging document is issued. Several commenters wanted to see the 
government hire an independent entity to investigate complaints lodged 
against private practitioners by government employees; others felt that 
the

[[Page 39521]]

government should hire separate counsel to conduct independent 
investigations.
    Response: Most, if not all, of the commenters failed to recognize 
that the current disciplinary system is structured so that the Service 
(the prosecuting party in an adversarial immigration proceeding) is the 
party bringing the disciplinary action before EOIR (the adjudicating 
body). This structure has led to revisions in this rule which, in many 
cases, transfers responsibility for issuing charging documents from the 
Service to EOIR. The only cases in which the Service still retains 
responsibility for issuing charging documents concern situations where 
the Service serves as the adjudicating body (i.e., adjustment of status 
cases, asylum cases, and some visa petition cases, among others, but 
not in matters before an Immigration Judge or the Board). This 
transition of the disciplinary system from the Service to EOIR is being 
made specifically to eliminate the appearance of any bias or conflict 
of interest. The Office of the General Counsel of EOIR or the Office of 
the General Counsel of the Service, not Immigration Judges or Service 
trial attorneys, is responsible for conducting preliminary inquiries 
and issuing charging documents. While the comments reflect some 
practitioners' reluctance to be regulated, there is simply no basis for 
the conclusion that this disciplinary process is biased against 
practitioners.
    The primary purpose of this rule is to protect vulnerable aliens 
from unscrupulous immigration practitioners and from those who have 
engaged in conduct that raises questions about their fitness to 
practice law. Rather than demonstrating an overabundance of zeal, some 
practitioners fail to represent their clients at all. Numerous 
complaints have been reported about practitioners who fail to appear or 
to file essential documents or evidence on behalf of their clients. The 
Board adjudicates numerous motions to reopen filed before it based on 
such claims of ineffective assistance of counsel. The rule will provide 
an effective means to address the mounting instances of practitioners' 
failure to represent their clients. Many immigration practitioners have 
had the experience of trying to salvage the case of a client who was 
harmed by a previous representative's inaction. Often a state bar does 
not have the expertise to evaluate or prosecute such cases of 
misconduct. The disciplinary rules will provide an effective means to 
address such problems.
    Concerning the request that the practitioner be notified of any 
complaints lodged against him or her, the preliminary inquiry will, in 
most cases, afford the practitioner an opportunity to discuss the 
complaint with an investigator. However, if a complaint is clearly 
frivolous or without merit, it is possible that the practitioner may 
not be contacted if it is determined that no action will be taken 
against him or her. Additionally, during the preliminary inquiry phase 
of a disciplinary proceeding, EOIR and the practitioner may reach a 
resolution or settlement prior to the issuance of a Notice of Intent to 
Discipline. Once the preliminary inquiry is completed, and if no such 
resolution has been reached, a Notice of Intent to Discipline will then 
be issued. It should be noted that the Notice of Intent to Discipline 
will be served by personal service, as defined in 8 CFR 103.5a.

Sections 3.105(d) and 3.106(a)(2)--Default Provisions

    Comments. One commenter stated that 15 days is an insufficient time 
period in which to file a motion to set aside an order of default for 
failure to file an answer or for failure to appear at a disciplinary 
hearing. Some commenters thought that a practitioner should be allowed 
to file motions at any time after an order is issued, or at least 
within 180 days of issuance. One commenter thought that the provision 
that requires a practitioner to prove a negative (i.e., failure to 
appear due to exceptional circumstances) is unfair when the burden of 
proof is placed on the practitioner.
    Response: It should be noted that section 6103 of the California 
Rules of Professional Conduct provides that if the accused does not 
appear at the time appointed to answer the accusation without 
sufficient cause, ``the court may proceed and determine the accusation 
in his absence.'' Moreover, IRS disciplinary regulations provide that 
an attorney's ``(f)ailure to file an answer within the time prescribed. 
* * * shall constitute an admission of the allegations of the complaint 
and a waiver of hearing, and the Examiner may make his decision by 
default without a hearing or further procedure.'' 31 CFR 10.58(c). 
Furthermore, it is common practice in state bar disciplinary 
proceedings to allow both for default and expedited time frames when an 
attorney fails to file an answer or fails to appear before a 
disciplinary hearing panel. In response to the suggestions that the 
time period be expanded for the filing of motions to set aside, EOIR 
and the Service balanced the practitioner's due process rights against 
the primary goals of this regulation, including the protection of the 
public, and concluded that the time period set forth in the final rule 
is fair.

Section 3.106(c)--Review Process

    Comments. Most commenters complained that the rule provides no 
opportunity for the practitioner to present a written or oral argument 
to the Disciplinary Committee. The remaining commenters complained that 
there is no appeal from the decision of the Disciplinary Committee.
    Response: As stated above, the proposed Disciplinary Committee has 
been replaced by the Board in all respects regarding this rule. All of 
the established appeal procedures in immigration cases, including the 
submission of written briefs and requests for oral arguments, now apply 
also to disciplinary cases on appeal to the Board. A practitioner who 
wishes to obtain judicial review of the Board's decision can do so in 
Federal district court pursuant to28 U.S.C.1331.

Sections 3.106(d) and 292.3(g)--Referral to State Bars

    Comment. One commenter suggested that the rule be amended to 
require all orders of public discipline to be reported to the ABA 
National Lawyer Regulatory Data Bank and to all jurisdictions in which 
the disciplined attorney is admitted.
    Response: We have incorporated into the final rule a provision for 
referrals of public discipline to the ABA National Lawyer Regulatory 
Data Bank and to every jurisdiction in which the disciplined attorney 
is admitted.

Section 3.107--Reinstatement

    Comments. One commenter believed that the requirement that a 
``practitioner has the burden of proving that he or she possesses the 
moral and professional qualifications to be reinstated by clear, 
convincing, and unequivocal evidence'' is too ambiguous and does not 
protect the public. Another commenter concluded that it is too 
difficult to quantify moral qualifications, while another suggested 
that the rule should provide for a hearing during which the 
practitioner must show that he or she is rehabilitated and no longer 
poses a risk to the public, the Board, the Immigration Courts, and the 
Service.
    Response: The language in this provision is taken directly from the 
Rules of Disciplinary Enforcement for the United States Court of 
Appeals for the District of Columbia Circuit. However, we have adopted 
the suggestion on providing a reinstatement

[[Page 39522]]

hearing by amending the rule to give the Board discretion to hold a 
hearing if the practitioner meets all of the reinstatement 
requirements.

Section 3.108--Confidentiality

    Comments. There were some generalized concerns that these 
provisions do not sufficiently protect a practitioner's privacy, 
especially with regard to disclosures made to law enforcement 
authorities, complainants, and witnesses.
    Response: These provisions are patterned after the Rules of 
Procedure of the State Bar of California. The presumption in the 
provisions is one of confidentiality, not disclosure. Exceptions to 
confidentiality are based on ``protection of the public when the 
necessity for disclosing information outweighs the necessity for 
preserving confidentiality,'' and include, but are not limited to, 
limited disclosures necessary to conduct preliminary inquiries.

Sections 3.109 and 292.3--Discipline of Government Attorneys/
Immigration Judges

    Comments. Many commenters expressed their concern that the proposed 
rule applies only to private immigration practitioners and not to 
Immigration Judges and/or Service trial attorneys. Since Immigration 
Judges and Service trial attorneys are subject to the disciplinary 
system which is overseen by the Department's Office of Professional 
Responsibility (OPR), a system which regulates all Department 
attorneys, many commenters stated that having two different systems is 
unfair and suggested this was a denial of Equal Protection. Still other 
commenters concluded that the rule will hamper legal advocacy and that 
the ``major purpose of the rule is to intimidate private attorneys out 
of practice'' and ``to deny aliens their statutory right to 
representation.''
    Response: Congress has broadly empowered the Attorney General 
pursuant to 8 U.S.C. 1103, to ``establish such regulations * * * and 
perform such other acts as she deems necessary for carrying out her 
authority'' under the provisions of the Immigration and Nationality 
Act. Congress delegated its plenary power over immigration matters in 
order to advance, among other purposes, the public interest in deciding 
whether to admit or exclude aliens.
    Consistent with Congress's sweeping grant of authority to the 
Attorney General in immigration matters, ``in any removal proceedings 
before an immigration judge and in any appeal proceedings before the 
Attorney General from such removal proceedings, the person concerned 
shall have the privilege of being represented * * * by such counsel, 
authorized to practice in such proceedings, as he shall choose'' 
(emphasis added). 8 U.S.C. 1362. Such statutory authority, which serves 
as a primary basis for this disciplinary regulation, refers exclusively 
to counsel for individuals subject to such proceedings, not to 
Immigration Judges or attorneys for the government.
    The Supreme Court has held that ``where the empowering provision of 
a statute states simply that the agency may `make * * * such rules and 
regulations as may be necessary to carry out the provisions of (an) 
act,' * * * the validity of a regulation promulgated thereunder will be 
sustained so long as it is `reasonably related to the purposes of the 
enabling legislation.' '' Thorpe v. Housing Authority of the City of 
Durham, 393 U.S. 268, 280-81 (1969). The general authority upon which 
we rely herein to impose disciplinary sanctions properly gives heed to 
Congress' enabling language and public interest purposes. Moreover, we 
view the need to safeguard adjudicative processes, fairly decide cases, 
and protect the public through implementation of this disciplinary 
regulation as consonant with Congress's public interest intent. 
Contrary to the assertion that such regulations will hamper counsel in 
rendering legal assistance to aliens, we believe that these rules will 
strengthen the effectiveness of representation and provide fairer 
adjudications.
    As one court stated in reference to the foregoing express grants of 
authority from Congress, ``an agency empowered to prescribe its own 
rules has the implied power to determine who can practice before it.'' 
Koden v. United States Dep't of Justice, 564 F.2d 228, 234 (7th Cir. 
1977). In that case, the Seventh Circuit held that the authority 
bestowed on the Attorney General is more than adequate to empower, 
expressly or impliedly, an agency to set disciplinary standards 
applicable to representatives. The Koden court upheld a disciplinary 
regulation substantially similar to this one that had existed for over 
25 years (at the time of the court's decision) and applied only to 
private immigration practitioners.
    Additionally, since 1975, OPR has had responsibility for 
investigating allegations of misconduct against any of the Department's 
lawyers, which today number over 9,000 individuals, including 
Immigration Judges and Service trial attorneys, where such allegations 
relate to the exercise of their authority to investigate, litigate, 
adjudicate, or provide legal services. See 28 CFR 0.39. Such employees 
are also subject to the jurisdiction of the Department's Office of 
Inspector General. Among other rules, regulations, and orders, 
Department attorneys must abide by the standards of conduct applicable 
to executive branch employees and the Department's supplemental 
standards of conduct. See 5 CFR part 2635 et seq.; 5 CFR part 3801 et 
seq.
    Such comprehensive standards and procedures, under the auspices of 
OPR and the Office of Inspector General, are equally, if not more, 
rigorous than those provided in this rule. They provide separate means 
for seeking discipline of Immigration Judges and Department attorneys.
    It should also be noted that on October 21, 1998, Congress amended 
Chapter 31 of Title 28 of the United States Code by adding section 530B 
in Public Law 105-277. This amendment, which went into effect on April 
19, 1999, subjects Department attorneys to state laws and rules, and 
local federal court rules, governing attorneys in each state where such 
attorneys engage in their duties, to the same extent and in the same 
manner as other attorneys in that state. See 64 FR 19273 (1999) 
(Interim Rule on Ethical Standards for Attorneys for the Government).

Definitions

    Comment. One commenter pointed out that the rule uses the term 
``practitioner'' whereas the current rule uses the terms ``attorney'' 
and ``representative.''
    Response: Use of the new term ``practitioner'' in the proposed rule 
is simply for convenience when referring to both attorneys, as defined 
in 8 CFR 1.1(f), and representatives, as defined in 8 CFR 1.1(j).

Disciplinary System Involving Both EOIR and INS

    Comments. Many commenters expressed concerns over the two parallel 
proceedings outlined in the proposed rule. They felt that the 
jurisdiction between EOIR and the Service is unclear, that the two 
systems are not necessary, that practitioners will have to be familiar 
with the professional conduct requirements of two agencies, and that 
two separate complaints could result in two punishments. Another 
commenter thought that the Board and Immigration Judges already have 
``plenary power to sanction attorneys.''
    Response: Some commenters have characterized this rule as two 
parallel disciplinary systems with the potential for two disciplinary 
actions for the same

[[Page 39523]]

misconduct. This notion is incorrect; only one disciplinary system 
exists and the delineations of authority are clear under the 
regulation. If a complaint concerns a practitioner's conduct before the 
Service in its adjudicative capacity (i.e., adjustment of status cases, 
asylum cases, visa petition cases), then the complaint should be filed 
with the Service, which will conduct a preliminary inquiry. If, 
however, the basis of the complaint concerns a practitioner's conduct 
before EOIR (i.e., the Board or the Immigration Courts), then the 
complaint should be filed with EOIR, which will conduct a preliminary 
inquiry. EOIR's jurisdiction to investigate and prosecute disciplinary 
cases will not extend to cases over which the Service has adjudicatory 
authority and, likewise, the Service's jurisdiction to investigate and 
prosecute disciplinary cases will not extend to cases over which EOIR 
has adjudicatory authority.
    Between EOIR and the Service, there remains an expectation of 
cooperation and communication in instances where it is unclear which 
agency should take responsibility for investigating a complaint, i.e., 
if a complaint alleges misconduct that occurred before both agencies. 
Each agency is required to serve a copy of a Notice of Intent to 
Discipline on the other agency. Moreover, each agency may submit a 
written request to the adjudicating official asking that any discipline 
imposed upon a practitioner that restricts his or her authority to 
practice before one agency also apply to his or her authority to 
practice before the other agency. This will avoid the situation in 
which a practitioner could be forced to go through two separate 
disciplinary hearings for the same misconduct. It also gives the 
adjudicating official the discretion to prohibit a practitioner from 
continuing to practice before one agency pending suspension or 
exclusion from the other. Without this provision, for example, a 
practitioner who appears before EOIR and who has been suspended for 
assisting others in the unauthorized practice of law could continue to 
practice before the Service unless and until the Service conducted its 
own separate proceeding.
    Contrary to one commenter's suggestion, the Board and Immigration 
Judges do not have ``plenary power to sanction attorneys.'' Until the 
contempt rule is final (see discussion above), the revised set of 
grounds as set forth in this disciplinary regulation is the only means 
by which the Board and Immigration Judges may seek to remedy related 
professional misconduct.

Procedures

    Comments. Some commenters felt that there should be a right to 
discovery while others felt that the Federal Rules of Evidence (FRE) 
and/or the Federal Rules of Civil Procedure (FRCP) should be used in 
disciplinary proceedings. One commenter asked under what circumstances 
costs would be assessed to the practitioner. Another commenter 
requested that hearings be held in the practitioner's city of practice 
and that a hearing should be set automatically, regardless of whether a 
hearing has been requested or the practitioner has failed to file an 
answer to the Notice of Intent to Discipline. One commenter suggested 
that the hearing should be closed to the public. Others suggested that 
the 30-day time period to file an answer be extended to 60 days. Some 
commenters would like to see the Disciplinary Committee establish rules 
of procedure. Other commenters opined that the complaining party must 
have standing to bring a complaint, e.g., the complainant must be an 
``aggrieved party'' who can show harm or damage. One commenter 
questioned how ongoing cases would be handled under the new rule.
    Response: Disciplinary proceedings are designed to be conducted 
under the same procedures which govern deportation and removal hearings 
in Immigration Courts, practices which are familiar to both 
adjudicating officials and practitioners. The proposed rule required 
the Director of EOIR not only to appoint the adjudicating official, but 
also to designate the time and place of the hearing. After further 
review, however, this provision has been amended in several respects.
    First, the final rule now gives the Chief Immigration Judge the 
authority to appoint an Immigration Judge as the adjudicating official. 
At the request of the Chief Immigration Judge or in the interest of 
efficiency, however, the Director of EOIR may appoint an Administrative 
Law Judge as an adjudicating official. Second, the adjudicating 
official will designate the time and place of the hearing. This 
amendment was added to give the adjudicating official more control over 
the scheduling of the hearing. Third, the rule has been amended to 
require the adjudicating official to designate the place of the hearing 
``with due regard to the location of the practitioner's practice or 
residence, the convenience of witnesses, and any other relevant 
factors.'' Although it is most likely that the adjudicating official 
will select a site for the hearing which is convenient for the 
practitioner, this amendment does not require that such a selection be 
made since there may be other important factors which might dictate 
that another site is preferable. For example, it is reasonable to 
predict that disciplinary proceedings will most likely be held in one 
of EOIR's Immigration Courts, where such hearings are presently held, 
so that proper administrative support, such as clerks and interpreters, 
are available. Selection of such a hearing site might require the 
practitioner to travel to that location.
    Finally, the final rule has eliminated the terms ``Assistant Chief 
Immigration Judge'' and ``Board Member'' as persons who may be 
appointed as adjudicating officials. The term ``Assistant Chief 
Immigration Judge'' was deleted because it was determined to be 
unnecessary, since the term ``Immigration Judge'' is deemed to include 
``Assistant Chief Immigration Judge.'' The term ``Board Member'' was 
deleted since, under the final rule, the Board is now the appellate 
reviewing body for disciplinary appeals, thereby eliminating the 
possibility that Board Members could be appointed as adjudicating 
officials.
    The rule requires the practitioner to request a hearing if he or 
she so desires, but does not make such a hearing mandatory. There may 
be reasons why a practitioner may not want a hearing, e.g., the 
practitioner intends to settle the case, does not want publicity, or 
does not wish to expend the time and money necessary to prepare for a 
hearing. To give the practitioner the option of having a hearing gives 
him or her more control over the progression of the case. Further, the 
rule does not allow for a hearing for a practitioner who fails to file 
an answer to a Notice of Intent to Discipline.
    One commenter suggested that all hearings be closed. However, the 
prevailing procedure among state bars mandates that disciplinary 
hearings be open to the public once a charging document has been filed. 
The public has a right to know what transpires in such cases, and the 
notion of conducting disciplinary hearings behind closed doors may 
foster ignorance and raise doubts as to the nature of the proceedings. 
It should be noted that there are two exceptions in the rule to a 
public hearing. These include limitations of the physical facilities 
and/or the need to protect witnesses, parties, or the public interest.
    Another commenter suggested the time period to file an answer 
should be extended from 30 to 60 days. In order for disciplinary 
actions to be most effective, it is imperative that cases be

[[Page 39524]]

resolved in a timely manner. To provide a practitioner with 30 days to 
file an answer is reasonable.
    Another commenter stated that a complaining party must have 
standing and must be an ``aggrieved party'' who can show harm or 
damage. However, there is no reason to limit the ability of anyone to 
file a complaint. The degree to which a complainant has been harmed 
will go to the merits of the case itself, but should not preclude an 
individual from filing a complaint. Moreover, it is anticipated that 
complaints may come from adjudicators, Service personnel, aliens, or 
practitioners themselves, all of whom may have first-hand knowledge of 
practitioner misconduct.
    One commenter questioned when costs might be assessed against the 
practitioner. Assessment of costs is not available in Immigration Court 
or at the Board, and benefits such as the use of interpreters have not 
previously been charged against a party. In an effort to keep 
disciplinary proceedings procedurally similar to Immigration Court 
practice, the agency has decided not to assess costs in disciplinary 
proceedings. Therefore, the provision concerning costs has been deleted 
in the final rule.
    With regard to ongoing cases in which a charging document has been 
issued and filed with the Office of the Chief Immigration Judge prior 
to the effective date of these regulations, such matters will proceed 
to a final disposition under the previous regulations.

State Bars Are Appropriate Entities To Handle Complaints

    Comments. Many commenters said that it is inappropriate for federal 
agencies to unilaterally impose a national disciplinary scheme where 
states should have sole jurisdiction and, further, that federal 
regulations concerning discipline will cause confusion and uncertainty 
with regard to state rules. Others objected that the rule subjects 
practitioners to being disciplined twice for the same conduct--once by 
the federal government and once by the state bar. Others believed that 
this rule is an unnecessary and impermissible intrusion into the state 
law licensure process and ``to bar a lawyer from practice before an 
agency is unheard of.''
    Response: In response to the comments that claim that this 
regulation is an ``impermissible intrusion into the state law licensure 
process'' and that it is ``inappropriate for federal agencies to 
unilaterally impose a national disciplinary scheme where states should 
have sole jurisdiction,'' we refer commenters to the U.S. Supreme Court 
decision in Sperry v. Florida, 373 U.S. 379 (1963). In that case, the 
state of Florida sought to enjoin a non-attorney registered to practice 
before the United States Patent Office from preparing and prosecuting 
patent applications in Florida because he was not a member of the 
Florida Bar. The Supreme Court held that the federal government has 
preemptive powers over states' legislative and judicial authorities 
when acting under valid federal regulations. As noted above in the 
supplementary information, EOIR and the Service maintain that under the 
broad rulemaking authority of the Attorney General and the federal 
government's preemptive powers, EOIR and the Service have the authority 
(and indeed, have had the authority since these regulations were first 
adopted more than 45 years ago) to promulgate disciplinary regulations 
on a nationwide basis governing the privilege of appearing as an 
attorney or representative before the Board, the Immigration Courts, 
and the Service.
    The commenters also claim that this regulation is unnecessary in 
light of the 51 state bar disciplinary agencies (including the District 
of Columbia) which regulate attorney conduct. The American Bar 
Association (ABA) suggested that EOIR and the Service establish a 
system by which complaints about attorneys alleged to have engaged in 
misconduct be referred to state disciplinary authorities, and by which 
such disciplinary authorities then would notify the agencies about 
sanctioned lawyers. Since the ABA submitted almost identical comments 
regarding the EOIR/Service rule and the Social Security 
Administration's (SSA's) recently published rule on its disciplinary 
system (see 63 FR 41404 (1998)), it appears that the organization is 
expressing its general objection to federal oversight of the 
professional conduct of those who appear before federal agencies.
    In response to such comments, it should be noted that immigration 
hearings are held in approximately 50 Immigration Courts located in 23 
different states and territories. Moreover, attorneys often represent 
aliens in jurisdictions other than those in which they are licensed to 
practice law. It is imperative that EOIR and the Service administer a 
uniform disciplinary system among the respective Immigration Courts. 
For the reasons explained in SSA's supplementary information to their 
disciplinary rule, EOIR and the Service should not be expected or 
required to apply numerous local rules, or local interpretations of the 
rules, to problems that require national uniformity. Applying local 
rules or local interpretations in lieu of a national standard would 
leave immigration attorneys in one state subject to discipline, while 
possibly exempting immigration attorneys in another state. EOIR and the 
Service do not believe that it would benefit the Board, the Immigration 
Courts, the Service, the public, or attorneys to promote inconsistency 
in regulating the conduct of practitioners, who all practice before the 
same forum.
    Similar to the SSA program, practice before EOIR and the Service is 
not limited to attorneys, but includes non-attorneys who may not be 
subject to state bar rules. EOIR and the Service believe that all 
practitioners, attorneys and non-attorneys alike, must be held to 
uniform standards of professional conduct in immigration proceedings. 
Without this regulation, non-attorneys may not be accountable to any 
disciplinary authority.
    EOIR and the Service anticipate working closely with the various 
state bars when investigating disciplinary complaints. Referrals to 
state bars may be appropriate when a complaint does not allege a 
violation of the federal regulations but may allege a violation of 
state bar rules or regulations. Cooperation between the federal 
government and the 51 state bar disciplinary authorities will optimize 
resources and minimize duplication of investigations. In general, state 
bars have not been resistant to the Federal government's efforts to 
assist in protecting the public by scrutinizing the professional 
conduct of attorneys. Moreover, immigration law is a very complex area 
and this program may assist state bars with investigating allegations 
of misconduct against immigration attorneys.
    After publication of the proposed rule, the vast majority of 
comments were from attorneys who opposed the idea of any Federal 
government regulations of professional conduct. However, as we have 
tried to emphasize in this final rule, the Department's imperatives, 
including preserving the integrity of the Board, the Immigration 
Courts, and the Service, ensuring the important and proper discharge of 
statutory duties under the immigration laws of the United States, and 
safeguarding a vulnerable client population, support continuing and 
improving the reasonable and fair regulation of such conduct.
    One comment in particular exemplified the peril of susceptible

[[Page 39525]]

clients, and was submitted by immigrant twin brothers who are law 
students. After fleeing the former Yugoslavia, they arrived in the 
United States with the hope of starting a new life. They feared for 
their lives in their country and applied for political asylum so they 
would not have to return to their country to face persecution and 
possibly death. They retained an immigration attorney to help them file 
the necessary applications. After appearing before an Immigration 
Judge, the brothers were given a deadline to file their asylum 
applications with the court, and a hearing date was set. The attorney 
assured the brothers that the applications had been filed before the 
deadline and that they did not need to show up for any further hearings 
before the Immigration Judge.
    During the ensuing months, the attorney continued to pressure the 
brothers for additional legal fees, telling them he needed to file more 
paperwork. He told them to expect to receive their permanent resident 
cards in the mail. After numerous attempts to contact the attorney over 
the next several years, the brothers finally went to the Immigration 
Court to find out the status of their case. Much to their surprise, 
they learned that their case had been dismissed after the Immigration 
Judge and the Board considered their requests for asylum to be 
abandoned when no applications had been submitted by the deadline. The 
brothers then contacted their attorney who told them that he had never 
received anything from the Immigration Court or the Service.
    Eventually, they hired a new attorney who helped them correct the 
mistakes of the former attorney by filing a motion to reopen based on 
ineffective assistance of counsel. The brothers wrote: ``The 
immigration problem which faces this great nation of ours is caused by 
many of the immigration attorneys who misrepresent their clients who 
often do not speak (the) English language and do not understand 
immigration law. * * * The proposed rule is a rule which needs to be 
used in practice. It needs to be enacted in order to deter the 
misconduct of attorneys who practice immigration law. These attorneys 
like our former attorney are taking advantage of the most vulnerable 
group of people in our society. Your office would serve a great deal in 
this process by properly investigating, and determining which 
complaints have merit. * * * This rule makes good on a pledge by the 
Attorney General to deter the bad conduct of immigration attorneys. 
Hopefully, this letter will inform you that (the) rule is needed and 
wanted by not only immigrants like us but also future legal 
professionals.''

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 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 affect only 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

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review'', section 
1(b), Principles of Regulation. The Department of Justice has 
determined that this rule is not a ``significant regulatory action'' 
under Executive Order 12866, section 3(f), and accordingly this rule 
has not been reviewed by the Office of Management and Budget.

Executive Order 12612

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 12612, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

Executive Order 12988--Civil Justice Reform

    This regulation meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

Plain Language Instructions

    We try to write clearly. If you can suggest how to improve the 
clarity of these regulations, call or write Charles Adkins-Blanch, 
Acting General Counsel, Executive Office for Immigration Review, 5107 
Leesburg Pike, Suite 2400, Falls Church, Virginia, 22041, telephone 
(703) 305-0470.

List of Subpart

8 CFR Part 3

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

8 CFR Part 292

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

    For the reasons set forth in the preamble, parts 3 and 292 of title 
8 of the Code of Federal Regulations are 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; section 203 of Pub L. 105-100.


    2. In section 3.1, add paragraph (b)(13) and revise paragraph 
(d)(3) to read as follows:


Sec. 3.1  [Amended]

* * * * *
    (b) * * *
    (13) Decisions of adjudicating officials in practitioner 
disciplinary proceedings as provided in subpart G of this part.
* * * * *
    (d) * * *
    (3) Rules of practice. The Board shall have authority, with the 
approval of the

[[Page 39526]]

Director, EOIR, to prescribe rules governing proceedings before it. It 
shall also determine whether any organization and/or individual 
desiring to represent aliens in immigration proceedings meets the 
requirements as set forth in Sec. 292.2 of this chapter.

    3-4. Section 3.1(d)(1-a)(ii) is amended by revising the reference 
to ``Sec. 292.3(a)(15) of this chapter'' in the first sentence to read 
``Sec. 3.102(j).''


Sec. 3.12  [Amended]

    5. Section 3.12 is amended by revising the reference to 
``Sec. 292.3 of this chapter'' in the second sentence to read ``this 
part 3.''

Subpart F--[Reserved]

    6. Subpart F is added and reserved.

    7. Subpart G is added to Part 3 to read as follows:
Subpart G--Professional Conduct for Practitioners--Rules and Procedures
Sec.
3.101   General provisions.
3.102   Grounds.
3.103   Immediate suspension and summary disciplinary proceedings; 
duty of practitioner to notify EOIR of correction or discipline.
3.104   Filing of complaints; preliminary inquiries; resolutions; 
referral of complaints.
3.105   Notice of Intent to Discipline.
3.106   Hearing and disposition.
3.107   Reinstatement after expulsion or suspension.
3.108   Confidentiality.
3.109   Discipline of government attorneys.

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


Sec. 3.101  General provisions.

    (a) Authority to sanction. An adjudicating official or the Board of 
Immigration Appeals (the Board) 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 and the Immigration Courts when such person has engaged in 
criminal, unethical, or unprofessional conduct, or in frivolous 
behavior, as set forth in Sec. 3.102. In accordance with the 
disciplinary proceedings set forth in this subpart and outlined below, 
an adjudicating official or the Board 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 Service, or before 
all three authorities;
    (3) Public or private censure; or
    (4) Such other disciplinary sanctions as the adjudicating official 
or the Board deems appropriate.
    (b) 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. 3.109. Nothing in this 
regulation shall be construed as authorizing persons who do not meet 
the definition of practitioner to represent individuals before the 
Board and the Immigration Courts or the Service.


Sec. 3.102  Grounds.

    It is deemed to be in the public interest for an adjudicating 
official or the Board 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. Nothing in this regulation should be read to denigrate the 
practitioner's duty to represent zealously his or her client within the 
bounds of the law. A practitioner who falls within one of the following 
categories shall 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 or with reckless disregard makes a false statement of 
material fact or law, 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 or with 
reckless disregard offering false evidence. 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 subject to a final order of disbarment or suspension, or has

[[Page 39527]]

resigned 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) Knowingly or with reckless disregard 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 would constitute contempt of court in a judicial proceeding;
    (h) Has been found guilty of, or pleaded guilty or nolo contendere 
to, a serious crime, in any court of the United States, or of any 
state, possession, territory, commonwealth, or the District of 
Columbia. 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, involves 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 
contendere is deemed to be a conviction within the meaning of this 
section;
    (i) Knowingly or with reckless disregard 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 an 
Immigration Court, the Board, or any other administrative appellate 
body under title II of the Immigration and Nationality Act, provided:
    (1) A practitioner 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 
practitioner 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 an 
Immigration Judge in an immigration proceeding, and a disciplinary 
complaint is filed within one year of the finding;
    (l) Repeatedly fails to appear for scheduled hearings in a timely 
manner without good cause; or
    (m) Assists any person, other than a practitioner as defined in 
Sec. 3.101(b), in the performance of activity that constitutes the 
unauthorized practice of law.


Sec. 3.103  Immediate suspension and summary disciplinary proceedings; 
duty of practitioner to notify EOIR of conviction or discipline.

    (a) Immediate suspension. (1) Petition. The Office of the General 
Counsel of EOIR shall file a petition with the Board to suspend 
immediately from practice before the Board and the Immigration Courts 
any practitioner who has been found guilty of, or pleaded guilty or 
nolo contendere to, a serious crime, as defined in Sec. 3.102(h), or 
any practitioner who has been disbarred or suspended on an interim or 
final basis by, or has resigned with an admission of misconduct from, 
the highest court of any state, possession, territory, commonwealth, or 
the District of Columbia, or any Federal court. A copy of the petition 
shall be forwarded to the Office of the General Counsel of the Service, 
which may submit a written request to the Board that entry of any order 
immediately suspending a practitioner before the Board or the 
Immigration Courts also apply to the practitioner's authority to 
practice before the Service. Proof of service on the practitioner of 
the Service's request to broaden the scope of any immediate suspension 
must be filed with the Board.
    (2) Immediate suspension. Upon the filing of a petition for 
immediate suspension by the Office of the General Counsel of EOIR, 
together with a certified copy of a court record finding that a 
practitioner has been so found guilty of a serious crime, or has been 
so disciplined or has so resigned, the Board shall forthwith enter an 
order immediately suspending the practitioner from practice before the 
Board, the Immigration Courts, and/or the Service, notwithstanding the 
pendency of an appeal, if any, of the underlying conviction or 
discipline, pending final disposition of a summary disciplinary 
proceeding as provided in paragraph (b) of this section. Such immediate 
suspension will continue until imposition of a final administrative 
decision. Upon good cause shown, the Board may set aside such order of 
immediate suspension when it appears in the interest of justice to do 
so. If a final administrative decision includes the imposition of a 
period of suspension, time spent by the practitioner under immediate 
suspension pursuant to this paragraph may be credited toward the period 
of suspension imposed under the final administrative decision.
    (b) Summary disciplinary proceedings. The Office of the General 
Counsel of EOIR shall promptly initiate summary disciplinary 
proceedings against any practitioner described in paragraph (a) of this 
section. Summary proceedings shall be initiated by the issuance of a 
Notice of Intent to Discipline, accompanied by a certified copy of the 
order, judgment, and/or record evidencing the underlying criminal 
conviction, discipline, or resignation. Summary proceedings shall be 
conducted in accordance with the provisions set forth in Secs. 3.105 
and 3.106. Any such summary proceeding

[[Page 39528]]

shall not be concluded until all direct appeals from an underlying 
criminal conviction shall have been completed.
    (1) In matters concerning criminal convictions, a certified copy of 
the court record, docket entry, or plea shall be conclusive evidence of 
the commission of the crime in any summary disciplinary proceeding 
based thereon.
    (2) In the case of a summary proceeding based upon a final order of 
disbarment or suspension, or a resignation with an admission of 
misconduct, (i.e., reciprocal discipline), a certified copy of a 
judgment or order of discipline shall establish a rebuttable 
presumption of the professional misconduct. Disciplinary sanctions 
shall follow in such a proceeding unless the attorney can rebut the 
presumption by demonstrating by clear, unequivocal, and convincing 
evidence that:
    (i) The underlying 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 
attorney's 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
    (iii) The imposition of discipline by the adjudicating official 
would result in grave injustice.
    (c) Duty of practitioner to notify EOIR of conviction or 
discipline. Any practitioner who has been found guilty of, or pleaded 
guilty or nolo contendere to, a serious crime, as defined in 
Sec. 3.102(h), or who has been disbarred or suspended by, or who has 
resigned with an admission of misconduct from, the highest court of any 
state, possession, territory, commonwealth, or the District of 
Columbia, or by any Federal court, must notify the Office of the 
General Counsel of 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 (a) of this section 
and other final discipline. This duty to notify applies only to 
convictions for serious crimes and to orders imposing discipline for 
professional misconduct entered on or after August 28, 2000.


Sec. 3.104  Filing of complaints; preliminary inquiries; 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 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. Disciplinary 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 using the Form EOIR-44. The 
Office of the General Counsel of EOIR shall notify the Office of the 
General Counsel of the Service of any disciplinary complaint 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(d) of this chapter.
    (b) Preliminary inquiry. Upon receipt of a disciplinary complaint 
or on its own initiative, the Office of the General Counsel of EOIR 
will initiate a preliminary inquiry. If a complaint is filed by a 
client or former client, the complainant thereby waives the attorney-
client privilege and any other applicable privilege, to the extent 
necessary to conduct a preliminary inquiry and any subsequent 
proceedings based thereon. 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 reasonable requests for assistance, information, or 
documentation. The complainant and the practitioner shall be notified 
of any such determination 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, 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 
prosecutorial authorities within the Department to ensure that neither 
the disciplinary process nor criminal prosecutions are jeopardized.


Sec. 3.105  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 that sufficient prima facie evidence exists to warrant 
charging a practitioner with professional misconduct as set forth in 
Sec. 3.102, 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 of the Board.
    (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 Board or the adjudicating official requesting that any 
discipline imposed upon a practitioner which restricts his or her 
authority to practice before the Board or the Immigration Courts also 
apply to the practitioner's authority 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.--(1) Filing. The practitioner shall file a written 
answer to the Notice of Intent to Discipline with the Board within 30 
days of the date of service of the Notice of Intent to Discipline 
unless, on motion to the Board, an extension of time to answer is 
granted for good cause. A motion for an extension of time to answer 
must be received by the Board no later than three (3) working days 
before the time to answer has expired. A copy of the

[[Page 39529]]

answer and any such motion shall be served by the practitioner on the 
Office of the General Counsel of EOIR (or the Office of the General 
Counsel of the Service with respect to a Notice of Intent to Discipline 
issued by the Service).
    (2) Contents. The answer shall contain a statement of facts which 
constitute the grounds of defense and shall specifically admit or deny 
each allegation set forth in the Notice of Intent to Discipline. Every 
allegation in the Notice of Intent to Discipline which is not denied in 
the answer shall be deemed to be admitted and may be considered as 
proved, and no further evidence in respect of such allegation need be 
adduced. The practitioner may also state affirmatively special matters 
of defense and may submit supporting documents, including affidavits or 
statements, along with the answer.
    (3) Request for hearing. The practitioner shall also state in the 
answer whether he or she requests a hearing on the matter. If no such 
request is made, the opportunity for a hearing will be deemed waived.
    (d) Failure to file an answer. (1) Failure to file an answer within 
the time period prescribed in the Notice of Intent to Discipline, 
except where the time to answer is extended by the Board, shall 
constitute an admission of the allegations in the Notice of Intent to 
Discipline and no further evidence with respect to such allegations 
need be adduced.
    (2) Upon such a default by the practitioner, the Office of the 
General Counsel shall submit to the Board 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 Board shall 
issue a final order adopting the recommended disciplinary sanctions in 
the Notice of Intent to Discipline unless to do so would foster a 
tendency toward inconsistent dispositions for comparable conduct, or 
would otherwise be unwarranted or not in the interest of justice. Any 
final order imposing discipline shall not become effective sooner than 
15 days from the date of the order to provide the practitioner 
opportunity to comply with the terms of such order, including, but not 
limited to, withdrawing from pending immigration matters and notifying 
immigration clients of the imposition of any sanction. A practitioner 
may file a motion to set aside a final order of discipline issued 
pursuant to this paragraph, with service of such motion on the Office 
of the General Counsel of EOIR, provided:
    (i) Such a motion is filed within 15 days of the date 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.


Sec. 3.106  Hearing and disposition.

    (a) Hearing.--(1) Procedure. (i) The Chief Immigration Judge shall, 
upon the filing of an answer, appoint an Immigration Judge as an 
adjudicating official. At the request of the Chief Immigration Judge or 
in the interest of efficiency, the Director of EOIR may appoint an 
Administrative Law Judge as an adjudicating official. An Immigration 
Judge or Administrative Law Judge shall not serve as the adjudicating 
official in any case in which he or she is also the complainant. An 
Immigration Judge shall not serve as the adjudicating official in any 
case involving a practitioner who regularly appears before him or her.
    (ii) Upon the practitioner's request for a hearing, the 
adjudicating official shall designate the time and place of the hearing 
with due regard to the location of the practitioner's practice or 
residence, the convenience of witnesses, and any other relevant 
factors. Such notice shall be served upon the practitioner by personal 
service as defined in Sec. 103.5a of this chapter. The practitioner 
shall be afforded adequate time to prepare his or her case in advance 
of the 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 or if the practitioner has not filed an answer, subject to 
final approval by the Board.
    (iii) The practitioner may be represented at the hearing by counsel 
at no expense to the government. Counsel for the practitioner shall 
file a Notice of Entry of Appearance on Form EOIR-28 in accordance with 
the procedures set forth in this Part 3. 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.
    (iv) In rendering a decision, the adjudicating official shall 
consider the following: 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.
    (v) The record of the hearing, regardless of whether the hearing is 
held before an Immigration Judge or an Administrative Law Judge, shall 
conform to the requirements of 8 CFR part 3, subpart C and 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 of individuals in 
attendance at any one time, with priority being given to the press over 
the general public, and
    (B) For the purposes of protecting witnesses, parties, or the 
public interest, the adjudicating official may limit attendance or hold 
a closed hearing.
    (2) Failure to appear at the hearing. If the practitioner fails to 
appear at the hearing, the adjudicating official shall then proceed and 
decide the case in the absence of the practitioner, in accordance with 
paragraph (b) of this section, based upon the available record, 
including any additional evidence or arguments presented by EOIR or the 
Service at the hearing. In such a proceeding, the Office of the General 
Counsel of EOIR or the Office of the General Counsel of the Service 
shall submit to the adjudicating official proof of personal service of 
the Notice of Intent to Discipline as well as the Notice of the 
Hearing. The practitioner shall be precluded thereafter from 
participating further in the proceedings. Any final order imposing 
discipline entered in absentia shall be a final order, but shall not 
become effective sooner than 15 days from the date of the order to 
provide the practitioner opportunity to comply with the terms of such 
order, including, but not limited to, withdrawing from pending 
immigration matters and notifying immigration clients of the imposition 
of any sanction. A final order of discipline issued pursuant to this 
paragraph shall

[[Page 39530]]

not be subject to further review, except that the practitioner may file 
a motion to set aside the order, with service of such motion on the 
Office of the General Counsel of EOIR (or the Office of the General 
Counsel of the Service), provided:
    (i) Such a motion is filed within 15 days of the date of issuance 
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) Decision. The adjudicating official shall consider the entire 
record, including any testimony and evidence presented at the hearing, 
and, as soon as practicable after the hearing, render a decision. If 
the adjudicating official finds that one or more of 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 rule that the disciplinary sanctions set forth in the 
Notice of Intent to Discipline be adopted, modified, or otherwise 
amended. If the adjudicating official determines that the practitioner 
should be suspended, the time period for such suspension shall be 
specified. Any grounds for disciplinary sanctions enumerated in the 
Notice of Intent to Discipline that have not been established by clear, 
unequivocal, and convincing evidence shall be dismissed. Except as 
provided in paragraph (a)(2) of this section, the adjudicating 
official's decision becomes final only upon waiver of appeal or 
expiration of the time for appeal to the Board, whichever comes first, 
nor does it take effect during the pendency of an appeal to the Board 
as provided in Sec. 3.6.
    (c) Appeal. Upon the issuance of a decision by the adjudicating 
official, either party or both parties may appeal to the Board to 
conduct a de novo review of the record. Parties must comply with all 
pertinent provisions for appeals to the Board, including provisions 
relating to forms and fees, as set forth in this Part 3, and must use 
the Form EOIR-45. The decision of the Board is a final administrative 
order as provided in Sec. 3.1(d)(2), and shall be served upon the 
practitioner by personal service as defined in Sec. 103.5a of this 
chapter. Any final order imposing discipline shall not become effective 
sooner than 15 days from the date of the order to provide the 
practitioner opportunity to comply with the terms of such order, 
including, but not limited to, withdrawing from any pending immigration 
matters and notifying immigration clients of the imposition of any 
sanction. A copy of the final administrative order of the Board 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 
Board may require that notice of such sanctions be posted at the Board, 
the Immigration Courts, 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 Board.
    (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 any appropriate Federal and/or state 
disciplinary or regulatory authority of any complaint filed against a 
practitioner. Any final administrative decision imposing sanctions 
against a practitioner (other than a private censure) shall be reported 
to any such disciplinary or regulatory authority in every jurisdiction 
where the disciplined practitioner is admitted or otherwise authorized 
to practice. In addition, the Office of the General Counsel of EOIR 
shall transmit notice of all public discipline imposed under this rule 
to the National Lawyer Regulatory Data Bank maintained by the American 
Bar Association.


Sec. 3.107  Reinstatement after expulsion or suspension.

    (a) Expiration of suspension. Upon notice to the Board, a 
practitioner who has been suspended will be reinstated 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 Board shall 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 Board 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 
this 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 
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.
    (1) 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 reply within 30 days of service of the 
petition in the form of a written response to the Board, which may 
include documentation of any complaints filed against the expelled or 
suspended practitioner subsequent to his or her expulsion or 
suspension.
    (2) 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 Board shall deny the petition for reinstatement 
without further consideration. If the petition for reinstatement is 
found to be otherwise inappropriate or unwarranted, the petition shall 
be denied. Any subsequent petitions for reinstatement may not be filed 
before the end of one year from the date of the Board's previous denial 
of reinstatement. If the petition for reinstatement is determined to be 
timely, the practitioner meets the definition of attorney or 
representative, and the petitioner has otherwise set forth by the 
requisite standard of proof that he or she possesses the qualifications 
set forth herein, and that reinstatement will not be detrimental to the 
administration of justice, the Board shall grant the petition and 
reinstate the practitioner. The Board, in its discretion, may hold a 
hearing to determine if the practitioner meets all of the requirements 
for reinstatement.


Sec. 3.108  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

[[Page 39531]]

a waiver of confidentiality if it is determined that an ongoing 
preliminary inquiry may be substantially prejudiced by 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 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 disciplinary or 
regulatory authority, or has committed acts or made omissions that may 
reasonably result in investigation by such authorities;
    (iv) A practitioner is the subject of multiple disciplinary 
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 any other preliminary inquiries or the manner in which 
any 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 
disciplinary or regulatory investigations and proceedings;
    (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 subject to 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 disciplinary 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 or the Board. Disciplinary hearings are open to 
the public, except as noted in Sec. 3.106(a)(1)(v).


Sec. 3.109  Discipline of government attorneys.

    Complaints regarding the conduct or behavior of Department 
attorneys, Immigration Judges, or Board Members shall be directed to 
the Office of Professional Responsibility, United States Department of 
Justice. If disciplinary action is warranted, it shall be administered 
pursuant to the Department's attorney discipline procedures.

PART 292--REPRESENTATION AND APPEARANCES

    8. The authority citation for Part 292 continues to read as 
follows:

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


    9. Section 292.3 is revised to read as follows:


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

    (a) General provisions.-- (1) Authority to sanction. An 
adjudicating official or the Board of Immigration Appeals (the Board) 
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 Service when such person has engaged 
in criminal, unethical, or unprofessional conduct, or in frivolous 
behavior, as set forth in Sec. 3.102 of this chapter. In accordance 
with the disciplinary proceedings set forth in part 3 of this chapter, 
an adjudicating official or the Board may impose any of the following 
disciplinary sanctions:
    (i) Expulsion, which is permanent, from practice before the Board 
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 sanctions as the adjudicating official 
or the Board deems appropriate.
    (2) 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 (i) of this section.
    (b) Grounds of discipline as set forth in Sec. 3.102 of this 
chapter. It is deemed to be in the public interest for the adjudicating 
official or the Board to impose disciplinary sanctions as described in 
paragraph (a)(1) of this section against any practitioner who falls 
within one or more of the categories enumerated in Sec. 3.102 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. Nothing 
in this regulation should be read to denigrate the practitioner's duty 
to represent zealously his or her client within the bounds of the law.
    (c) Immediate suspension and summary disciplinary proceedings; duty 
of practitioner to notify the Service of conviction or discipline. (1) 
Petition. The Office of the General Counsel of the Service shall 
petition the Board to suspend immediately from practice before the 
Service any practitioner who has been found guilty of, or pleaded 
guilty or nolo contendere to, a serious crime, as defined in 
Sec. 3.102(h) of this chapter, or who has been disbarred or suspended 
on an interim or final basis by, or has resigned with an admission of 
misconduct from, the highest court of any state, possession, territory, 
commonwealth, or the District of Columbia, or any Federal court. A copy

[[Page 39532]]

of the petition shall be forwarded to the Office of the General Counsel 
of EOIR, which may submit a written request to the Board that entry of 
any order immediately suspending a practitioner before the Service also 
apply to the practitioner's authority to practice before the Board or 
the Immigration Courts. Proof of service on the practitioner of EOIR's 
request to broaden the scope of any immediate suspension must be filed 
with the Board.
    (2) Immediate suspension. Upon the filing of a petition for 
immediate suspension by the Office of the General Counsel of the 
Service, together with a certified copy of a court record finding that 
a practitioner has been so found guilty of a serious crime, or has been 
so disciplined or has so resigned, the Board shall forthwith enter an 
order immediately suspending the practitioner from practice before the 
Service and/or the Board and Immigration Courts, notwithstanding the 
pendency of an appeal, if any, of the underlying conviction or 
discipline, pending final disposition of a summary proceeding, as 
provided in paragraph (c)(3) of this section. Such immediate suspension 
will continue until imposition of a final administrative decision. Upon 
good cause shown, the Board may set aside such order of immediate 
suspension when it appears in the interest of justice to do so. If a 
final administrative decision includes the imposition of a period of 
suspension, time spent by the practitioner under immediate suspension 
pursuant to this paragraph may be credited toward the period of 
suspension imposed under the final administrative decision.
    (3) Summary disciplinary proceedings. The Office of the General 
Counsel of the Service shall promptly initiate summary disciplinary 
proceedings against any practitioner described in paragraph (c)(1) of 
this section. Summary proceedings shall be initiated by the issuance of 
a Notice of Intent to Discipline, accompanied by a certified copy of 
the order, judgment and/or record evidencing the underlying criminal 
conviction or discipline. Summary proceedings shall be conducted in 
accordance with the provisions set forth in Secs. 3.105 and 3.106 of 
this chapter. Any such proceeding shall not be concluded until all 
direct appeals from an underlying criminal conviction have been 
completed.
    (i) In matters concerning criminal convictions, a certified copy of 
the court record, docket entry, or plea shall be conclusive evidence of 
the commission of that crime in any summary disciplinary hearing based 
thereon.
    (ii) In the case of a summary proceeding based upon a final order 
of disbarment or suspension, or a resignation with an admission of 
misconduct, (i.e., reciprocal discipline), a certified copy of a 
judgment or order of discipline shall establish a rebuttable 
presumption of the professional misconduct. Disciplinary sanctions 
shall follow in such a proceeding unless the attorney can rebut the 
presumption by demonstrating by clear, unequivocal, and convincing 
evidence that:
    (A) The underlying 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 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.
    (4) Duty of practitioner to notify the Service of conviction or 
discipline. Any practitioner who has been found guilty of, or pleaded 
guilty or nolo contendere to, a serious crime, as defined in 
Sec. 3.102(h) of this chapter, or who has been disbarred or suspended 
by, or who has resigned with an admission of misconduct from, the 
highest court of any state, possession, territory, commonwealth, or the 
District of Columbia, or by any 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 (c)(1) of this section. This duty to notify applies only to 
convictions for serious crimes or to orders imposing discipline for 
professional misconduct entered on or after July 27, 2000.
    (d) Filing of complaints; preliminary inquiries; resolutions; 
referral of complaints.--(1) Filing of complaints.--(i) Misconduct 
occurring before Service. Complaints of criminal, unethical, or 
unprofessional conduct, or of frivolous behavior before the Service by 
a practitioner shall be filed with the Office of the General Counsel of 
the Service. Disciplinary 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 the Service. The Office of the 
General Counsel of the Service shall notify the Office of the General 
Counsel of EOIR of any disciplinary complaint that pertains, in whole 
or in part, to a matter before the Board or the Immigration Courts.
    (ii) Misconduct occurring before the Board and the Immigration 
Courts. Complaints of criminal, unethical, or unprofessional conduct, 
or of frivolous behavior before the Board and the Immigration Courts by 
a practitioner shall be filed with the Office of the General Counsel of 
EOIR pursuant to the procedures set forth in Sec. 3.104(a) of this 
chapter.
    (2) Preliminary inquiry. Upon receipt of a disciplinary complaint 
or on its own initiative, the Office of the General Counsel of the 
Service will initiate a preliminary inquiry. If a complaint is filed by 
a client or former client, the complainant thereby waives the attorney-
client privilege and any other applicable privilege, to the extent 
necessary to conduct a preliminary inquiry and any subsequent 
proceeding based thereon. 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 reasonable requests for assistance, information, or 
documentation. The complainant and the practitioner shall be notified 
of any such determination in writing.
    (3) 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.
    (4) 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, 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

[[Page 39533]]

Counsel of the Service shall coordinate in advance with the appropriate 
investigative and prosecutorial authorities within the Department to 
ensure that neither the disciplinary process nor criminal prosecutions 
are jeopardized.
    (e) 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 that sufficient 
prima facie evidence exists to warrant charging a practitioner with 
professional misconduct as set forth in Sec. 3.102 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 of the Board.
    (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 Board or the 
adjudicating official requesting that any discipline imposed upon a 
practitioner which restricts his or her authority to practice before 
the Service also apply to the practitioner's authority 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.--(i) Filing. The practitioner shall file a written 
answer to the Notice of Intent to Discipline with the Board as provided 
in Sec. 3.105(c) of this chapter.
    (ii) Failure to file an answer. Failure to file an answer within 
the time period prescribed in the Notice of Intent to Discipline, 
except where the time to answer is extended by the Board, shall 
constitute an admission of the allegations in the Notice of Intent to 
Discipline and no further evidence with respect to such allegations 
need be adduced. Upon such a default by the practitioner, the Office of 
the General Counsel of the Service shall submit to the Board 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 Board shall adopt the recommended disciplinary 
sanctions in the Notice of Intent to Discipline and issue a final order 
as provided in Sec. 3.105(d) of this chapter. A practitioner may file a 
motion to set aside a final order of discipline issued pursuant to this 
paragraph, with service of such motion on the Office of the General 
Counsel of the Service, provided:
    (A) Such a motion is filed within 15 days of service of the final 
order; and
    (B) 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.
    (f) Hearing and disposition; appeal; reinstatement proceedings. 
Upon the filing of an answer, the matter shall be heard and decided 
according to the procedures set forth in Sec. 3.106(a), (b), and (c) of 
this chapter. The Office of the General Counsel of the Service shall 
represent the government. Reinstatement proceedings shall be conducted 
according to the procedures set forth in Sec. 3.107 of this chapter.
    (g) 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 any appropriate Federal and/
or state disciplinary or regulatory authority of any complaint filed 
against a practitioner. Any final administrative decision imposing 
sanctions against a practitioner (other than a private censure) shall 
be reported to any such disciplinary or regulatory authority in every 
jurisdiction where the disciplined practitioner is admitted or 
otherwise authorized to practice. In addition, the Office of the 
General Counsel of the Service shall transmit notice of all public 
discipline imposed under this rule to the National Lawyer Regulatory 
Data Bank maintained by the American Bar Association.
    (h) 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 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 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 disciplinary or 
regulatory authority, or has committed acts or made omissions that may 
reasonably result in investigation by such an authority;
    (D) A practitioner is the subject of multiple disciplinary 
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 any other 
preliminary inquiries or the manner in which any 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 conducting 
disciplinary investigations or proceedings;
    (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

[[Page 39534]]

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 subject to a subsequent Notice of 
Intent to Discipline.
    (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 of a 
prior record of discipline in any subsequent disciplinary 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 or the Board. Disciplinary hearings are open to 
the public, except as noted in Sec. 3.106(a)(v) of this chapter.
    (i) Discipline of government attorneys. Complaints regarding the 
conduct or behavior of Department attorneys, Immigration Judges, or 
Board Members shall be directed to the Office of Professional 
Responsibility, United States Department of Justice. If disciplinary 
action is warranted, it shall be administered pursuant to the 
Department's attorney discipline procedures.

    Dated: June 17, 2000.
Janet Reno,
Attorney General.
[FR Doc. 00-16052 Filed 6-26-00; 8:45 am]
BILLING CODE 4410-30-U