This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

2901

Vol. 63, No. 12

Tuesday, January 20, 1998

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 3 and 292

[EOIR No. 112P; A.G. ORDER No. 2138–

98]

RIN 1125–AA13

Executive Office for Immigration

Review; Professional Conduct for

Practitioners—Rules and Procedures

AGENCY: Immigration and Naturalization

Service and the Executive Office for

Immigration Review, Justice.

ACTION: Proposed rule.

SUMMARY: This rule proposes to change

the rules and procedures concerning

professional conduct for practitioners,

which includes attorneys and

representatives, who practice before the

Executive Office for Immigration

Review (EOIR), which includes the

Board of Immigration Appeals (the

Board) and the Immigration Courts, as

well as the rules and procedures

concerning professional conduct for

practitioners who practice before the

Immigration and Naturalization Service

(the Service). This rule also includes a

provision pursuant to section 545 of the

Immigration Act of 1990, concerning

sanctions against attorneys or

representatives who engage in frivolous

behavior in immigration proceedings.

This rule outlines the authority EOIR

has to investigate and impose

disciplinary sanctions against

practitioners who practice before its

tribunals, and clarifies the authority of

the Service to investigate complaints

regarding practitioners who practice

before the Service. The procedures by

which disciplinary proceedings may be

initiated before EOIR against

practitioners who appear before the

Service are also outlined. This proposed

rule will allow EOIR and the Service to

investigate, present, and complete

disciplinary proceedings more

effectively and efficiently while

ensuring the due process rights of the

practitioner. This proposed rule will

allow frivolous claims to be resolved

and meritorious cases to be completed

quickly and without unnecessary delay,

since the need for expeditious

resolution of these cases is critical to

and in the best interests of all parties

involved.

DATES: Written comments must be

received on or before March 23, 1998.

ADDRESSES: Please submit written

comments to both Margaret M. Philbin,

General Counsel, Executive Office for

Immigration Review, 5107 Leesburg

Pike, Suite 2400, Falls Church, Virginia,

22041 and Janice B. Podolny, Associate

General Counsel, Immigration and

Naturalization Service, 425 I Street,

NW., Room 6100, Washington, DC

20536.

FOR FURTHER INFORMATION CONTACT:

Margaret M. Philbin, General Counsel,

Executive Office for Immigration

Review, 5107 Leesburg Pike, Suite 2400,

Falls Church, Virginia 22041, telephone

(703) 305–0470, or Janice B. Podolny,

Associate General Counsel, Immigration

and Naturalization Service, 425 I Street,

NW, Room 6100, Washington, DC

20536, telephone (202) 514–2895.

SUPPLEMENTARY INFORMATION: This rule

proposes to amend 8 CFR parts 3 and

292 by changing the present rules and

procedures concerning professional

conduct for practitioners, which

includes attorneys and representatives,

who practice before the Executive Office

for Immigration Review (EOIR ), which

includes the Board of Immigration

Appeals (the Board) and the

Immigration Courts. Currently, the

regulations at 8 CFR 292.3 require the

Immigration and Naturalization Service

(the Service) to investigate complaints

filed regarding the conduct of attorneys

and representatives practicing before

both the Service and EOIR. If the

investigation establishes, to the

satisfaction of the Service, that

disciplinary proceedings should be

instituted, the General Counsel of the

Service serves a copy of the written

charges upon the attorney or

representative and upon the Office of

the Chief Immigration Judge. The

present procedure provides for the

government to be represented by a

Service attorney in disciplinary

proceedings before an Immigration

Judge. The decision of the Immigration

Judge may be appealed to the Board by

either party.

This proposed rule includes several

major changes to the current regulation.

First, it separates and distinguishes the

investigation of complaints and the

disciplinary proceedings involving

attorneys and representatives practicing

before EOIR from the investigation of

complaints and the disciplinary

proceedings involving attorneys and

representatives practicing before the

Service. Under the proposed rule, the

Office of the General Counsel of EOIR

will accept complaints made against

attorneys or representatives (referred to

as ‘‘practitioners’’) who appear before

the Board, the Immigration Courts, or

both. The Office of the General Counsel

of the Service will accept complaints

made against practitioners who appear

before the Service. The Office of the

General Counsel that receives the

complaint will conduct a preliminary

inquiry. If the Office of the General

Counsel of EOIR or the Service

determines that a complaint is without

merit, no further action will be taken. If

the Office of the General Counsel of

EOIR or the Service determines, by a

preponderance of the evidence, that a

practitioner has engaged in professional

misconduct as set forth in the rule, it

will issue a Notice of Intent to

Discipline to the practitioner named in

the complaint. When making a decision

as to whether a Notice of Intent to

Discipline should be issued, the Office

of the General Counsel of EOIR or the

Service will consider the contents of the

complaint (including the nature and

recency of the conduct or behavior of

the practitioner and the harm or

damages sustained by the complainant),

the results of the preliminary inquiry,

and other relevant information. The

practitioner will have an opportunity to

file an answer and request a hearing.

Second, the proposed rule establishes

a new disciplinary process for the

adjudication of all complaints. Upon the

filing of an answer by the practitioner,

the Director of EOIR will appoint an

adjudicating official and, if a hearing is

requested, will designate the time and

place of the hearing. Failure to file an

answer in a timely manner will be

deemed an admission to the factual

allegations set forth in the Notice of

Intent to Discipline. The recommended

disciplinary sanctions in the Notice of

Intent to Discipline then will become

final, unless a motion to set aside the

final order is granted. The Office of the
2902 Federal Register / Vol. 63, No. 12 / Tuesday, January 20, 1998 / Proposed Rules

General Counsel of EOIR will represent

the government in the hearing, unless

the proceeding is initiated by the

Service, in which case the Office of the

General Counsel of the Service will

represent the government. The

practitioner may be represented by

counsel of his or her own choice at no

expense to the government. The

adjudicating official will hold a hearing,

take testimony, examine witnesses, and

will report his or her findings and

recommendations to the Disciplinary

Committee. The Disciplinary Committee

will be a three-member panel appointed

by the Deputy Attorney General, with at

least one Committee member from

EOIR. The Deputy Attorney General will

designate one Committee member to

serve as Chairperson. The Disciplinary

Committee may adopt, modify, or

otherwise amend the recommended

disciplinary sanctions and issue a final

order which may apply to practice

before the Board and the Immigration

Courts or the Service, or before all three

authorities. There is no administrative

appeal from the order of the

Disciplinary Committee. A practitioner

who wishes to obtain a judicial review

of a decision of the Disciplinary

Committee can do so in federal district

court pursuant to 28 U.S.C. 1331.

Third, the proposed rule includes a

reinstatement procedure, which will

permit a practitioner to petition for his

or her reinstatement if he or she has

been expelled or, in the case of a

suspension, if the period of suspension

has not yet expired.

Fourth, the proposed rule revises and

restates the grounds for disciplinary

sanctions, which will be reduced from

fifteen to twelve by combining several

previous grounds, eliminating several

others, and adding two new grounds.

Ten of the grounds for disciplinary

sanctions will apply to all practitioners

appearing before the Board, the

Immigration Courts, and the Service,

while the two additional grounds will

only apply to practitioners appearing

before the Board and the Immigration

Courts. Wherever possible, the grounds

have been revised to include language

that is similar, if not identical, to

language found in the American Bar

Association Model Rules of Professional

Conduct (1995). EOIR has made these

revisions in order to provide

practitioners with a set of disciplinary

standards that are widely known and

accepted within the legal profession.

For example, one of the grounds for

disciplinary sanctions prohibits the

charging of grossly excessive fees. This

ground has been expanded in the

proposed rule to include a number of

factors to be considered in determining

whether a fee is grossly excessive, such

as the time and labor required, the fee

customarily charged in the locality for

similar legal services, and the

experience and ability of the attorney.

The disciplinary ground banning the

solicitation of professional employment

has been revised to permit a practitioner

to solicit professional employment from

a prospective client known to be in need

of legal services in a particular matter

with certain restrictions. If the

practitioner has no family or prior

professional relationship with the

prospective client, the practitioner must

include the words ‘‘Advertising

Material’’ on the outside of the envelope

of any written communication and at

the beginning and ending of any

recorded communication. This change

is made in light of the United States

Supreme Court decision in Shapero v.

Kentucky, 486 U.S. 466 (1988), in which

the Court held that legal advertising, in

the form of targeted, direct-mail

solicitation, is a form of commercial

speech protected by the First

Amendment but subject to regulation,

such as the requirement that a

solicitation letter bear a label identifying

it as an advertisement. Shapero, 486

U.S. at 477. The disciplinary ground

regarding false or misleading

communications about a practitioner’s

qualifications now includes a

prohibition against a practitioner’s use

of the term ‘‘certified specialist’’ in

immigration and/or nationality law,

unless the practitioner has been granted

such certification by the appropriate

state regulatory authority or by an

organization that has been approved by

the appropriate state regulatory

authority to grant such certifications.

This amendment is included in order to

ensure the public that a practitioner

who holds himself or herself out as a

certified specialist does so only after

demonstrating proficiency in

immigration and/or nationality law, and

to prevent false, deceptive, or

misleading advertising.

One of the two new grounds for

disciplinary sanctions concerns conduct

by a practitioner that constitutes

ineffective assistance of counsel as

previously determined in a finding by

the Board or an Immigration Judge in an

immigration proceeding. A practitioner

who is the subject of an ineffective

assistance of counsel claim heretofore

has been able to plead mea culpa when

an alien raises the issue on a motion to

reopen with the Board or an

Immigration Judge without any

disciplinary consequences from his or

her admissions. In addition, a

practitioner who is consistently accused

of providing ineffective assistance of

counsel has not experienced any

ramifications from such repeated claims

before the Board or an Immigration

Judge. By adding this ground to the

disciplinary standard, practitioners now

may face the consequences of claims of

ineffective assistance of counsel from

former clients.

A factual finding of ineffective

assistance of counsel in an immigration

proceeding will be necessary in order to

support the issuance of a Notice of

Intent to Discipline for this ground. A

mere grant of a motion to reopen based

on a claim of ineffective assistance of

counsel, absent a specific factual finding

of ineffective assistance of counsel, will

not support the issuance of a Notice of

Intent to Discipline.

Federal caselaw has repeatedly

addressed the standards to be used in

determining whether an alien has been

the victim of ineffective assistance of

counsel. Thus, in order for an alien to

prevail on a claim of ineffective

assistance of counsel, he or she must

show that his or her counsel’s

performance was so ineffective as to

have impinged upon the fundamental

fairness of the hearing in violation of the

fifth amendment due process clause.

Rabiu v. INS, 41 F.3d 879, 882 (2d Cir.

1994). See also Lopez v. INS, 775 F.2d

1015, 1017 (9th Cir. 1985) (ineffective

assistance of counsel is denial of due

process only if proceeding was so

fundamentally unfair that alien was

prevented from reasonably presenting

his case); Paul v. INS, 521 F.2d 194, 199

(5th Cir. 1975) (alien must present

sufficient facts to allow court to infer

that competent counsel would have

acted otherwise).

Situations may arise where the Board

or the Immigration Judge makes a

factual finding of ineffective assistance

of counsel in an immigration proceeding

but the adjudicating official in the

disciplinary proceeding recommends

that no disciplinary action be imposed

upon the practitioner. Since the

practitioner in question is not a party to

an alien’s motion to reopen on the basis

of ineffective assistance of counsel and

may not have presented any evidence in

his or her defense with regard to this

issue, the adjudicating official in the

disciplinary proceeding, upon further

development of the facts, may

determine, notwithstanding the finding

of the Immigration Judge or the Board,

that the attorney’s conduct does not rise

to a level for which disciplinary

sanctions should be imposed. Such a

ruling is subject to review by the

Disciplinary Committee, which will

then issue a final decision in the matter.
Federal Register / Vol. 63, No. 12 / Tuesday, January 20, 1998 / Proposed Rules 2903

Fifth, the proposed rule contains a

provision that allows for the immediate

suspension of any practitioner who has

been convicted of a serious crime, or

any practitioner who has been disbarred

or is currently under suspension or

resignation with an admission of

misconduct by the bar of any state,

possession, territory, commonwealth, or

the District of Columbus, or by any

Federal court. Such immediate

suspension may be imposed upon the

practitioner while any appeal from the

underlying conviction or discipline is

pending and will continue until such

time as a final administrative decision is

made by the Disciplinary Committee. If

a final administrative decision includes

the imposition of a period of

suspension, any time spent by the

practitioner under immediate

suspension will be credited toward the

period suspension imposed by the final

administrative decision. This provision

will enable EOIR and the Service to take

immediate action against such

practitioners and will provide a certain

degree of protection to those individuals

most likely to be affected by the

practitioner’s misconduct.

For those practitioners who are

immediately suspended, the proposed

rule allows for the initiation of a

summary disciplinary proceeding. Such

a proceeding will be conducted in a

manner similar to the standard

disciplinary proceeding set forth in this

rule, except that a certified copy of a

judgment of conviction or judgment or

order of discipline shall serve as a

rebuttable presumption of the

commission of the crime or the

professional misconduct, and the

burden of proof shall be upon the

practitioner to show cause why the

proposed disciplinary sanctions should

not be imposed. This summary

proceeding will enable EOIR and the

Service to expeditiously bring

disciplinary proceedings against

practitioners who have engaged in

criminal or unethical conduct while

providing an opportunity for the

practitioner to challenge the

disciplinary charges and proposed

sanctions.

Finally, the proposed rule contains a

provision that addresses the issue of

confidentiality with regard to

complaints, preliminary inquiries,

settlement agreements, and disciplinary

proceedings. The provision provides

that information concerning complaints

or preliminary inquiries will be

confidential unless a waiver is made,

but in certain circumstances a waiver is

not required before information can be

disclosed. Resolutions, such as warning

letters, admonitions, and agreements in

lieu of discipline reached prior to the

issuance of a Notice of Intent to

Discipline will remain confidential.

Notices of Intent to Discipline and

action taken subsequent thereto,

including settlement agreements, may

be disclosed to the public. Disciplinary

hearings will also be open to the public.

This provision will adequately protect

practitioners who may be the subject of

a complaint or preliminary inquiry and

also will maintain the integrity and

credibility of the disciplinary process by

keeping the sytem open to the public.

This proposed rule will allow EOIR

and the Service to investigate, present,

and complete disciplinary proceedings

more effectively and efficiently while

ensuring the due process rights of the

practitioner. This proposed rule will

allow frivolous claims to be resolved

and meritorious cases to be completed

quickly and without unnecessary delay

because the need for expeditious

resolution of these cases is critical to

and in the best interests of all parties

involved. EOIR and the Service

recognize that the primary purposes of

disciplinary proceedings, and any

sanctions that are imposed as a result of

such proceedings, include the

protection of the public, the

preservation of the integrity of the

immigration courts and the legal

profession, and the maintenance of high

professional standards by practitioners.

The proposed rule regarding the

authority of EOIR to investigate

complaints and to conduct disciplinary

proceedings has been placed in 8 CFR

part 3 for several reasons: (1) To

highlight the independence of EOIR

from the Service; (2) to provide EOIR

with the ability to police its own

tribunals and the persons who come

before them; and (3) to provide a more

efficient and effective disciplinary

system. The proposed rule and the

amendments to 8 CFR part 292 clarify

the authority of the Service to

investigate complaints regarding

attorneys and representatives who

practice before the Service and outline

the procedures by which disciplinary

proceedings may be initiated before

EOIR against practitioners who appear

before the Service. Once the Service

decides to issue a Notice of Intent to

Discipline, the complaint will be heard

and decided under the same procedures

used for disciplinary actions initiated by

the Office of the General Counsel of

EOIR. Moreover, the rule also provides

for notice of the initiation of

disciplinary actions and coordination of

disciplinary sanctions regarding the

Service as well as the Board and the

Immigration Courts.

Regulatory Flexibility Act

In accordance with 5 U.S.C. 605(b),

the Attorney General certifies that this

rule affects only those practitioners who

practice immigration law before EOIR

and the Service. Approximately 5000

immigration attorneys and 400

accredited representatives will be

subject to this rule. This rule will not

have a significant adverse economic

impact on a substantial number of small

entities because the rule is similar in

substance to the existing regulatory

process and will only affect those

practitioners who have committed

serious crimes or who have lost their

license to practice law or otherwise

engaged in professional misconduct.

Therefore, this rule does not have a

significant economic impact on a

substantial number of small entities.

Unfunded Mandates Reform Act of

1995

This rule will not result in the

expenditure by State, local, and tribal

governments, in the aggregate, or by the

private sector, of $100 million or more

in any one year, and it will not

significantly or uniquely affect small

governments. Therefore, no actions were

deemed necessary under the provisions

of the Unfunded Mandates Reform Act

of 1995.

Small Business Regulatory Enforcement

Fairness Act of 1996

This rule is not a major rule as

defined by section 804 of the Small

Business Regulatory Enforcement Act of

1996. This rule will not result in an

annual effect on the economy of $100

million or more; a major increase in

costs or prices; or significant adverse

effects on competition, employment,

investment, productivity, innovation, or

on the ability of United states-based

companies to compete with foreignbased companies in domestic and

export markets.

Executive Order 12866

The Attorney General has determined

that this rule is not a significant

regulatory action under Executive Order

No. 12866, and accordingly this rule has

not been reviewed by the Office of

Management and Budget.

Executive Order 12612

This rule has no federalism

implications warranting the preparation

of a Federalism Assessment in

accordance with Executive Order No.

12612.
2904 Federal Register / Vol. 63, No. 12 / Tuesday, January 20, 1998 / Proposed Rules

Executive Order 12988

The rule meets the applicable

standards provided in sections 3 (a) and

3 (b) (2) of Executive Order No. 12988.

List of Subjects

8 CFR Part 3

Administrative practice and

procedure, Immigration, Legal services,

Organizations and functions

(Government agencies), Reporting and

recordkeeping requirements.

8 CFR Part 292

Administrative practice and

procedure, Immigration, Reporting and

recordkeeping requirements.

For the reasons set forth in the

preamble, chapter I of title 8 of the Code

of Federal Regulations is proposed to be

amended as follows:

PART 3—EXECUTIVE OFFICE FOR

IMMIGRATION REVIEW

1. The authority citation for part 3

continues to read as follows:

Authority: 5 U.S.C. 301; 8 U.S.C. 1103;

1252 note, 1252b, 1324b, 1362; 28 U.S.C. 509,

510, 1746; sec. 2, Reorg. Plan No. 2 of 1950,

3 CFR, 1949–1953 Comp., p. 1002.

2–3. Section 3.1 is amended by

revising the reference to ‘‘§ 292.3(a)(15)

of this chapter’’ in the first sentence of

paragraph (d)(1–a)(ii) to read ‘‘§ 3.52(j)’’,

and by revising paragraph (d)(3) to read

as follows:

§ 3.1 General authorities.

* * * * *

(d) * * *

(3) Rules of practice. The board shall

have authority, with the approval of the

Director, EOIR, to prescribe rules

governing proceedings before it. It shall

also determine whether any

organization desiring representation is

of a kind described in § 1.1(j) of this

chapter.

* * * * *

4. Section 3.12 is amended by revising

the reference to ‘‘§ 292.3 of this chapter’’

in the second sentence to read ‘‘part 3

of this chapter’’.

5. Subpart D is added to part 3 after

Subpart C, to read as follows:

Subpart D—Professional Conduct for

Practitioners—Rules and Procedures

Sec.

3.51 General provisions.

3.52 Grounds.

3.53 Filing of an preliminary inquiry into

complaints; resolutions; referral of

complaints.

3.54 Notice of Intent to Discipline.

3.55 Hearing and disposition.

3.56 Reinstatement after expulsion or

suspension.

3.57 Confidentiality.

3.58 Discipline of government attorneys.

Subpart D—Professional Conduct for

Practitioners—Rules and Procedures

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

§ 3.51 General provisions.

(a) Disciplinary Committee. The

Disciplinary Committee is a threemember panel appointed by the Deputy

Attorney General, with at least one

Committee member from the Executive

Office for Immigration Review. The

Deputy Attorney General will designate

one Committee member to serve as

Chairperson. A designee appointed by

the Deputy Attorney General may serve

as an alternate Disciplinary Committee

member when, in the absence or

unavailability of a Disciplinary

Committee member or for other good

cause, his or her participation is deemed

necessary. Once designated, his or her

participation in a case shall continue to

its normal conclusion.

(b) Authority to sanction. The

Disciplinary Committee may impose

disciplinary sanctions against any

practitioner if it finds it to be in the

public interest to do so. It will be in the

public interest to impose disciplinary

sanctions against a practitioner who is

authorized to practice before the Board

of Immigration Appeals (the Board) and

the Immigration Courts when such

person has engaged in criminal,

unethical, or unprofessional conduct, or

in frivolous behavior, as set forth in

§ 3.52. In accordance with the

disciplinary proceedings set forth in this

subpart and outlined below, the

Disciplinary Committee may impose

any of the following disciplinary

sanctions:

(1) Expulsion, which is permanent,

from practice before the Board and the

Immigration Courts or the Immigration

and Naturalization Service (the Service),

or before all three authorities;

(2) Suspension, including immediate

suspension, from practice before the

Board and the Immigration Courts or the

Immigration and Naturalization Service

(the Service), or before all three

authorities;

(3) Public or private censure; or

(4) Such other disciplinary sanctions

as the Disciplinary Committee deems

appropriate.

(c) Persons subject to sanctions.

Persons subject to sanctions include any

practitioner. A practitioner is any

attorney as defined in § 1.1(f) of this

chapter who does not represent the

federal government, or any

representative as defined in § 1.1(j) of

this chapter. Attorneys employed by the

Department of Justice shall be subject to

discipline pursuant to § 3.58.

(d) Immediate suspension and

summary disciplinary proceedings—(1)

Immediate suspension. The Office of the

General Counsel of EOIR may ask the

Disciplinary Committee to immediately

suspend from practice before the Board

and the Immigration Courts any

practitioner who has been convicted of

a serious crime, as defined in § 3.52(h),

or who has been disbarred or is

currently under suspension or

resignation with an admission of

misconduct by the bar of any state,

possession, territory, commonwealth, or

the District of Columbia, or by any

Federal court. Such immediate

suspension may be imposed upon the

practitioner while any appeal from the

underlying conviction or discipline is

pending and shall continue until such

time as a final administrative decision is

made by the Disciplinary committee. If

a final administrative decision includes

the imposition of a period of

suspension, any time spent by the

practitioner under immediate

suspension pursuant to this paragraph

will be credited toward the period of

suspension imposed by the final

administrative decision.

(2) Summary disciplinary

proceedings. The Office of the General

Counsel of EOIR may initiate summary

disciplinary proceedings against any

practitioner described in paragraph

(d)(1) of this section. Summary

proceedings may be initiated by the

issuance of a Notice of Intent to

Discipline if accompanied by a certified

copy of a judgment of conviction or a

judgment or order of discipline.

Summary proceedings shall be

conducted in accordance with the

provisions set forth in §§ 3.54 and 3.55,

except that a certified copy of a

judgment of conviction or judgment or

order of discipline shall serve as a

rebuttable presumption of the

commission of the crime or the

professional misconduct. The

imposition of disciplinary sanctions

shall follow, unless the practitioner can

rebut the presumption by demonstrating

that:

(i) The underlying criminal or

disciplinary proceeding was so lacking

in notice or opportunity to be heard as

to constitute a deprivation of due

process;

(ii) There was such an infirmity of

proof establishing the practitioner’s

guilt or professional misconduct as to

give rise to the clear conviction that the

adjudicating official could not,

consistent with his or her duty, accept

as final the conclusion on that subject;

or
Federal Register / Vol. 63, No. 12 / Tuesday, January 20, 1998 / Proposed Rules 2905

(iii) The imposition of discipline by

the adjudicating official would result in

grave injustice.

(3) Ineligibility to rebut the

presumption of professional

misconduct. An attorney shall not be

eligible to rebut the presumption of the

commission of professional misconduct

unless he or she is a member in good

standing of the bar of the highest court

of any state, possession, territory,

commonwealth, or the District of

Columbia.

(e) Duty of practitioner to notify EOIR

of conviction or discipline. Any

practitioner who has been convicted of

a serious crime, as defined in § 3.52(h),

or who has been disciplined for

professional misconduct by the bar of

any state, possession, territory,

commonwealth, or the District of

Columbia, or by a Federal court must

notify the Office of the General Counsel

or EOIR of any such conviction or

disciplinary action within 30 days of the

issuance of the initial order, even if an

appeal of the conviction or discipline is

pending. Failure to do so may result in

immediate suspension as set forth in

paragraph (d)(1) of this section. This

duty to notify applies only to

convictions for serious crimes or rulings

of professional misconduct entered after

the effective date of this regulation.

§ 3.52 Grounds.

It is deemed to be in the public

interest for the Disciplinary Committee

to impose disciplinary sanctions against

any practitioner who falls within one or

more of the categories enumerated in

this section, but these categories do not

constitute the exclusive grounds for

which disciplinary sanctions may be

imposed in the public interest. A

practitioner who falls within one of the

following categories may be subject to

disciplinary sanctions in the public

interest if he or she:

(a) Charges or receives, either directly

or indirectly:

(1) In the case of an attorney, any fee

or compensation for specific services

rendered for any person that shall be

deemed to be grossly excessive. The

factors to be considered in determining

whether a fee or compensation is grossly

excessive include the following: the

time and labor required, the novelty and

difficulty of the questions involved, and

the skill requisite to perform the legal

service properly; the likelihood, if

apparent to the client, that the

acceptance of the particular

employment will preclude other

employment by the attorney; the fee

customarily charged in the locality for

similar legal services; the amount

involved and the results obtained; the

time limitations imposed by the client

or by the circumstances; the nature and

length of the professional relationship

with the client; and the experience,

reputation, and ability of the attorney or

attorneys performing the services,

(2) In the case of an accredited

representative as defined in § 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 § 292.1(a)(2) of

this chapter, any fee or compensation

for specific services rendered for any

person, except that a law student or law

graduate may be regularly compensated

by the organization or firm with which

he or she is associated as long as he or

she is appearing without direct or

indirect remuneration from the client he

or she represents;

(b) Bribes, attempts to bribe, coerces,

or attempts to coerce, by any means

whatsoever, any person (including a

party to a case or an officer or employee

of the Department of Justice) to commit

any act or to refrain from performing

any act in connection with any case;

(c) Knowingly makes a false statement

of material fact or law to, or willfully

misleads, misinforms, threatens, or

deceives any person (including a party

to a case or an officer or employee of the

Department of Justice) concerning any

material and relevant matter relating to

a case, including knowingly offering

evidence that the practitioner knows to

be false. If a practitioner has offered

material evidence and comes to know of

its falsity, the practitioner shall take

appropriate remedial measures;

(d) Solicits professional employment,

through in-person or live telephone

contact or through the use of runners,

from a prospective client with whom

the practitioner has no family or prior

professional relationship when a

significant motive for the practitioner’s

doing so is the practitioner’s pecuniary

gain. If the practitioner has no family or

prior professional relationship with the

prospective client known to be in need

of legal services in a particular matter,

the practitioner must include the words

‘‘Advertising Material’’ on the outside of

the envelope of any written

communication and at the beginning

and ending of any recorded

communication. Such advertising

material or similar solicitation

documents may not be distributed by

any person in or around the premises of

any building in which an Immigration

Court is located;

(e) Is currently subject to a final order

of disbarment, suspension, or

resignation with an admission of

misconduct

(1) In the jurisdiction of any state,

possession, territory, commonwealth, or

the District of Columbia, or in any

Federal court in which the practitioner

is admitted to practice, or

(2) Before any executive department,

board, commission, or other

governmental unit;

(f) Makes a false or misleading

communication about his or her

qualifications or services. A

communication is false or misleading if

it:

(1) Contains a material

misrepresentation of fact or law, or

omits a fact necessary to make the

statement considered as a whole not

materially misleading, or,

(2) Contains an assertion about the

practitioner or his or her qualifications

or services that cannot be substantiated.

A practitioner shall not state or imply

that he or she has been recognized or

certified as a specialist in immigration

and/or nationality law unless such

certification is granted by the

appropriate state regulatory authority or

by an organization that has been

approved by the appropriate state

regulatory authority to grant such

certification;

(g) Engages in contumelious or

otherwise obnoxious conduct with

regard to a case in which he or she acts

in a representative capacity, which, in

the opinion of the Disciplinary

Committee, would constitute cause for

suspension or disbarment if the case

were pending before a court, or which,

in such a judicial proceeding, would

constitute a contempt of court;

(h) Has been convicted in any court of

the United States, or of any state,

possession, territory, commonwealth, or

the District of Columbia, of a serious

crime. A serious crime includes any

felony and also includes any lesser

crime, a necessary element of which, as

determined by the statutory or common

law definition of such crime in the

jurisdiction where the judgment was

entered, involved interference with the

administration of justice, false swearing,

misrepresentation, fraud, willful failure

to file income tax returns, deceit,

dishonesty, bribery, extortion,

misappropriation, theft, or an attempt or

a conspiracy or solicitation of another to

commit a serious crime. A plea or

verdict of guilty or a conviction after a

plea of nolo contender is deemed to be

a conviction within the meaning of this

section;
2906 Federal Register / Vol. 63, No. 12 / Tuesday, January 20, 1998 / Proposed Rules

(i) Falsely certifies a copy of a

document as being a true and complete

copy of an original;

(j) Engages in frivolous behavior in a

proceeding before the Immigration

Court, the Board, or any other

administrative appellate body under

title II of the Immigration and

Nationality Act.

(1) A practioner engages in frivolous

behavior when he or she knows or

reasonably should have known that his

or her actions lack an arguable basis in

law or in fact, or are taken for an

improper purpose, such as to harass or

to cause unnecessary delay. Actions

that, if taken improperly, may be subject

to disciplinary sanctions include, but

are not limited to, the making of an

argument on any factual or legal

question, the submission of an

application for discretionary relief, the

filing of a motion, or the filing of an

appeal. The signature of a practioner on

any filing, application, motion, appeal,

brief, or other document constitutes

certification by the signer that the signer

has read the filing, application, motion,

appeal, brief, or other document and

that, to the best of the signer’s

knowledge, information, and belief,

formed after inquiry reasonable under

the circumstances, the document is

well-grounded in fact and is warranted

by existing law or by a good faith

argument for the extension,

modification, or reversal of existing law

or the establishment of new law, and is

not interposed for any improper

purpose.

(2) The imposition of disciplinary

sanctions for frivolous behavior under

this section in no way limits the

authority of the Board to dismiss an

appeal summarily pursuant to

§ 3.1(d)(1–a);

(k) Engages in conduct that

constitutes ineffective assistance of

counsel, as previously determined in a

finding by the Board or the Immigration

Court in an immigration proceeding,

within five years preceding the filing of

the complaint; or

(l) Repeatedly fails to appear for

scheduled hearings in a timely manner.

§ 3.53 Filing of and preliminary inquiry into

complaints; resolutions; referral of

complaints.

(a) Filing of complaints—(1)

Practitioners authorized to practice

before the Board and the Immigration

Courts. Complaints of criminal,

unethical, or unprofessional conduct, or

frivolous behavior by a practioner who

is authorized to practice before the

Board and the Immigration Courts shall

be filed with the Office of the General

Counsel of EOIR. Complaints must be

submitted in writing and must state in

detail the information that supports the

basis for the complaint, including, but

not limited to, the names and addresses

of the complainant and the practitioner,

the date(s) of the conduct or behavior,

the nature of the conduct or behavior,

the individuals involved, the harm or

damages sustained by the complainant,

and any other relevant information. Any

individual may file a complaint with the

Office of the General Counsel of EOIR.

The Office of the General Counsel of

EOIR shall notify the Office of the

General Counsel of the Service of any

complaint filed that pertains, in whole

or in part, to a matter involving the

Service.

(2) Practitioners authorized to

practice before the Service. Complaints

of criminal, unethical, or unprofessional

conduct, or of frivolous behavior by a

practitioner who is authorized to

practice before the Service shall be filed

with the Office of the General Counsel

of the Service pursuant to the

procedures set forth in § 292.3(c) of this

chapter.

(b) Preliminary inquiry. Upon receipt

of a complaint or on its own initiative,

the Office of the General Counsel of

EOIR will initiate a preliminary inquiry.

If a complaint concerning a practitioner

is filed by a client or former client, the

complainant thereby waives the

attorney-client privilege and any other

applicable privilege, as between the

complainant and the practitioner, to the

extent necessary for the preliminary

inquiry and any subsequent prosecution

of the allegations. If the Office of the

General Counsel of EOIR determines

that a complaint is without merit, no

further action will be taken. The Office

of the General Counsel of EOIR may, in

its discretion, close a preliminary

inquiry if the complainant fails to

comply with its reasonable requests for

assistance, information, or

documentation. The complainant and

the practitioner shall be notified of such

determinations in writing.

(c) Resolutions reached prior to the

issuance of a Notice of Intent to

Discipline. The Office of the General

Counsel of EOIR, in its discretion, may

issue warning letters and admonitions,

and may enter into agreements in lieu

of discipline, prior to the issuance of a

Notice of Intent to Discipline.

(d) Referral of complaints of criminal

conduct. If the Office of the General

Counsel of EOIR receives credible

information or allegations that a

practitioner has engaged in criminal

conduct in connection with an

immigration matter, the Office of the

General Counsel of EOIR shall refer the

matter to the Inspector General and, if

appropriate, to the Federal Bureau of

Investigation. In such cases, in making

the decision to pursue disciplinary

sanctions, the Office of the General

Counsel of EOIR shall coordinate in

advance with the appropriate

investigative and prosecutive authorities

of the Department to ensure that neither

the disciplinary process nor criminal

prosecutions are jeopardized.

§ 3.54 Notice of Intent to Discipline.

(a) Issuance of Notice to practitioner.

If, upon completion of the preliminary

inquiry, the Office of the General

Counsel of EOIR determines, by a

preponderance of the evidence, that a

practitioner has engaged in professional

misconduct as set forth in § 3.52, it will

issue a Notice of Intent to Discipline to

the practitioner named in the complaint.

This notice will be served upon the

practitioner by personal service as

defined in § 103.5a of this chapter. Such

notice shall contain a statement of the

charge(s), a copy of the preliminary

inquiry report, the proposed

disciplinary sanctions to be imposed,

the procedure for filing an answer or

requesting a hearing, and the mailing

address and telephone number for the

Disciplinary Committee.

(b) Copy of Notice to the Service;

reciprocity of disciplinary sanctions. A

copy of the Notice of Intent to

Discipline shall be forwarded to the

Office of the General Counsel of the

Service. The Office of the General

Counsel of the Service may submit a

written request to the adjudicating

official asking that he or she recommend

that any discipline imposed against a

practitioner’s right to practice before the

Board or the Immigration Courts also

apply to the practitioner’s right to

practice before the Service. Proof of

service on the practitioner of any

request to broaden the scope of the

proposed discipline must be filed with

the adjudicating official.

(c) Answer. The practitioner shall file

an answer to the Notice of Intent to

Discipline with the Office of the General

Counsel of EOIR within 30 days of the

date of service of the Notice of Intent to

Discipline, unless an extension of time

is granted for good cause by the

Disciplinary Committee. A request for

an extension of time to answer must be

received by the Disciplinary Committee

at least three (3) working days before the

time to answer has expired. A copy of

such request shall be served on the

Office of the General Counsel of EOIR.

The answer shall be in writing, must

respond to each charge in a substantive

and detailed manner, and may include

any supporting documents, including

affidavits or statements. The answer
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shall state whether the practitioner

requests a hearing on the matter.

(d) Failure to file an answer. Failure

to file an answer in a timely manner

shall be deemed an admission to the

factual allegations set forth in the Notice

of Intent to Discipline and no further

proof shall be required to establish the

truth of such facts. The Office of the

General Counsel of EOIR shall submit

proof of personal service of the Notice

of Intent to Discipline. The practitioner

shall be precluded thereafter from

requesting a hearing on the matter. The

recommended disciplinary sanctions in

the Notice of Intent to Discipline shall

then become final and the Disciplinary

Committee shall issue a final order

adopting the recommended disciplinary

sanctions against the practitioner. A

practitioner may file a motion to set

aside a final order of disciplinary

sanctions, issued pursuant to this

paragraph, with the Disciplinary

Committee if:

(1) Such a motion is filed within 15

days of service of the final order; and

(2) His or her failure to file an answer

was due to exceptional circumstances

(such as serious illness of the

practitioner or death of an immediate

relative of the practitioner, but not

including less compelling

circumstances) beyond the control of

the practitioner.

§ 3.55 Hearing and disposition.

(a) Hearing—(1) Procedure. (i) The

Director of EOIR shall, upon the filing

of an answer, appoint an adjudicating

official. An adjudicating official may be

an Immigration Judge, an Assistant

Chief Immigration Judge, a Board

Member, or an Administrative Law

Judge. Upon the practitioner’s request

for a hearing, the Director of EOIR shall

designate the time and place of the

initial hearing. Pre-hearing conferences

may be scheduled at the discretion of

the adjudicating official in order to

narrow issues, to obtain stipulations

between the parties, to exchange

information voluntarily, and otherwise

to simplify and organize the proceeding.

Settlement agreements reached after the

issuance of a Notice of Intent to

Discipline are subject to final approval

by the adjudicating official and the

Disciplinary Committee.

(ii) The practitioner may be

represented at the hearing by counsel at

no expense to the government. At the

hearing, the practitioner shall have a

reasonable opportunity to examine and

object to evidence presented by the

government, to present evidence on his

or her own behalf, and to cross-examine

witnesses presented by the government.

The adjudicating official shall consider:

the complaint, the preliminary inquiry

report, the Notice of Intent to Discipline,

the answer and any supporting

documents; and any other evidence

presented at the hearing (or, if the

practitioner files an answer but does not

request a hearing, any pleading, brief, or

other materials submitted by counsel for

the government). Counsel for the

government shall bear the burden of

proving the grounds for disciplinary

sanctions enumerated in the Notice of

Intent to Discipline by clear,

unequivocal, and convincing evidence.

(iii) The record of the hearing,

regardless of whether the hearing is held

before an Immigration Judge, an

Assistant Chief Immigration Judge, a

Board Member, or an Administrative

Law Judge, shall conform to the

requirements of 8 CFR 240.9.

Disciplinary hearings shall be

conducted in the same manner as

immigration court proceedings as is

appropriate, and shall be open to the

public, except that:

(A) Depending upon physical

facilities, the adjudicating official may

place reasonable limitations upon the

number in attendance at any one time,

(B) For the purposes of protecting

witnesses, parties, or the public interest,

the adjudicating official may limit

attendance or hold a closed hearing.

(2) Fairlure to appear at hearing.

Failure to appear at the hearing shall be

deemed an admission to the factual

allegations set forth in the Notice of

Intent to Discipline, even when the

practitioner filed an answer, and no

further proof shall be required to

establish the truth of such facts. The

Office of the General Counsel of EOIR or

the Office of the General Counsel of the

Service shall submit proof of personal

service of the Notice of Intent to

Discipline. The practitioner shall be

precluded thereafter from participating

further in the proceedings. The

recommended disciplinary sanctions in

the Notice of Intent to Discipline shall

then become final and the Disciplinary

Committee shall issue a final order

adopting the recommended disciplinary

sanctions against the practitioner. A

practitioner may file a motion to set

aside a final order of disciplinary

sanctions issued pursuant to this

paragraph if:

(i) Such a motion is filed within 15

days of service of the final order; and

(ii) His or her failure to appear at the

hearing was due to exceptional

circumstances (such as serious illness of

the practitioner or death of an

immediate relative of the practitioner,

but not including less compelling

circumstances) beyond the control of

the practitioner.

(b) Recommendation. The

adjudicating official shall consider the

entire record, including any testimony

and evidence presented at the hearing,

and shall report his or her findings and

recommendations to the Disciplinary

Committee. If the adjudicating official

finds that the grounds for disciplinary

sanctions enumerated in the Notice of

Intent to Discipline have been

established by clear, unequivocal, and

convincing evidence, he or she shall

recommend that the disciplinary

sanctions set forth in the Notice of

Intent to Discipline be adopted,

modified, or otherwise amended. If the

adjudicating official recommends that

the practitioner be suspended, the time

period for such suspension shall be

specified. Court costs also may be

assessed against the practitioner,

including the costs of a transcript, an

interpreter, or any other costs necessary

to conduct the hearing. If the

adjudicating official finds that the

grounds for disciplinary sanctions

enumerated in the Notice of Intent to

Discipline have not been established by

clear, unequivocal, and convincing

evidence, he or she shall recommend to

the Disciplinary Committee that the case

be dismissed.

(c) Decision. Upon a de novo review

of the findings and recommendations of

the adjudicating official, the

Disciplinary Committee may adopt,

modify, or otherwise amend the

recommended disciplinary sanctions.

The decision of the Disciplinary

Committee is a final administrative

order and shall be served upon the

practitioner by personal service as

defined in § 103.5a of this chapter. A

copy of the final administrative decision

of the Disciplinary Committee shall be

served upon the Office of the General

Counsel of EOIR and the Office of the

General Counsel of the Service. If

disciplinary sanctions are imposed

against a practitioner (other than a

private censure), the Disciplinary

Committee may require that a notice of

such sanctions be posted at the

Immigration Courts, the Board, or the

Service for the period of time during

which the sanctions are in effect, or for

any other period of time as determined

by the Disciplinary Committee.

(d) Referral. In addition to or in lieu

of initiating disciplinary proceedings

against a practitioner, the Office of the

General Counsel of EOIR may notify the

appropriate state and/or local

professional licensing or regulatory

authority of a complaint filed against a

practitioner. Any final administrative

decision imposing sanctions against a

practitioner (other than a private

censure) shall be reported to the
2908 Federal Register / Vol. 63, No. 12 / Tuesday, January 20, 1998 / Proposed Rules

appropriate state and/or local

professional licensing or regulatory

authority.

§ 3.56 Reinstatement after expulsion or

suspension.

(a) Expiration of suspension. A

practitioner who has been suspended

will be reinstated automatically to

practice before the Board and the

Immigration Courts or the Service, or

before all three authorities, once the

period of suspension has expired,

provided that he or she meets the

definition of attorney or representative

as set forth in § 1.1 (f) and (j),

respectively, of this chapter. If a

practitioner cannot meet the definition

of attorney or representative, the

Disciplinary Committee will decline to

reinstate the practitioner.

(b) Petition for reinstatement A

practitioner who has been expelled or

who has been suspended for one year or

more may file a petition for

reinstatement directly with the

Disciplinary Committee after one-half of

the suspension period has expired or

one year has passed, whichever is

greater, provided that he or she meets

the definition of attorney or

representative as set forth in § 1.1 (f) and

(j), respectively, of the chapter. A copy

of such petition shall be served on the

Office of the General Counsel of EOIR.

In matters in which the practitioner was

also ordered expelled or suspended

from practice before the Service, a copy

of such petition shall be served on the

Office of the General Counsel of the

Service. The practitioner shall have the

burden of demonstrating by clear,

unequivocal, and convincing evidence

that he or she possesses the moral and

professional qualifications required to

appear before the Board and the

Immigration Courts or the Service, or

before all three authorities, and that his

or her reinstatement will not be

detrimental to the administration of

justice. The Office of the General

Counsel of EOIR, and in matters in

which the practitioner was ordered

expelled or suspended from practice

before the Service, the Office of the

General Counsel of the Service, may

respond to the petition in the form of a

written response, which may include

documentation of any complaints filed

against the expelled or suspended

practitioner subsequent to his or her

expulsion or suspension. If a

practitioner cannot meet the definition

of attorney or representative as set forth

in § 1.1 (f) and (j), respectively, of this

chapter, the Disciplinary Committee

will deny the petition for reinstatement.

If reinstatement is found to be

inappropriate or unwarranted, the

petition shall be denied and any

subsequent petitions for reinstatement

may not be filed before the end of one

year from the date of the previous

denial. If reinstatement is found to be

appropriate and the practitioner is

found to be qualified to practice before

the Board and the Immigration Courts or

the Service, or before all three

authorities, the practitioner will be

reinstated.

§ 3.57 Confidentiality.

(a) Complaints and preliminary

inquiries. Except as otherwise provided

by law or regulation, information

concerning complaints or preliminary

inquiries is confidential. A practitioner

whose conduct is the subject of a

complaint or preliminary inquiry,

however, may waive confidentiality,

except that the Office of the General

Counsel of EOIR may decline to permit

a waiver of confidentiality if it is

determined that an ongoing preliminary

inquiry may be substantially, prejudiced

by a public disclosure before the filing

of a Notice of Intent to Discipline.

(1) Disclosure of information for the

purpose of protecting the public. The

Office of the General Counsel of EOIR,

after private notice to the practitioner,

may disclose information concerning a

complaint or preliminary inquiry for the

protection of the public when the

necessity for disclosing information

outweighs the necessity for preserving

confidentiality in circumstances

including, but not limited to, the

following:

(i) A practitioner has caused, or is

likely to cause, harm to client(s), the

public, or the administration of justice,

such that the public or specific

individuals should be advised of the

nature of the allegations. If disclosure of

information is made pursuant to this

paragraph, the Office of the General

Counsel of EOIR may define the scope

of information disseminated and may

limit the disclosure of information to

specified individuals or entities;

(ii) A practitioner has committed

criminal acts or is under investigation

by law enforcement authorities;

(iii) A practitioner is under

investigation by a regulatory or

licensing agency, or has committed acts

or made omissions that may reasonably

result in investigation by a regulatory or

licensing agency;

(iv) A practitioner is the subject of

multiple complaints and the Office of

the General Counsel of EOIR has

determined not to pursue all of the

complaints. The Office of the General

Counsel of EOIR may inform

complainants whose allegations have

not been pursued of the status of the

other preliminary inquiries or the

manner is which the other complaint(s)

against the practitioner have been

resolved.

(2) Disclosure of information for the

purpose of conducting a preliminary

inquiry. The Office of the General

Counsel of EOIR, in the exercise of

discretion, may disclose documents and

information concerning complaints and

preliminary inquiries to the following

individuals or entities:

(i) To witnesses or potential witnesses

in conjunction with a complaint or

preliminary inquiry;

(ii) To other governmental agencies

responsible for the enforcement of civil

or criminal laws;

(iii) To agencies and other

jurisdictions responsible for

professional licensing;

(iv) To the complainant or a lawful

designee;

(v) To the practitioner who is the

subject of the complaint or preliminary

inquiry or the practitioner’s counsel of

record.

(b) Resolutions reached prior to the

issuance of a Notice of Intent to

Discipline. Resolutions, such as warning

letters, admonitions, and agreements in

lieu of discipline, reached prior to the

issuance of a Notice of Intent to

Discipline will remain confidential.

However, such resolutions may become

part of the public record if the

practitioner becomes the subject of a

subsequent Notice of Intent to

Discipline.

(c) Notices of Intent to Discipline and

action subsequent thereto. Notices of

Intent to Discipline and any action that

takes place subsequent to their issuance,

except for the imposition of private

censures, may be disclosed to the

public, except that private censures may

become part of the public record if

introduced as evidence of a prior record

of discipline in any subsequent

proceeding. Settlement agreements

reached after the issuance of a Notice of

Intent to Discipline may be disclosed to

the public upon final approval by the

adjudicating official and the

Disciplinary Committee. Disciplinary

hearings are open to the public, except

as noted in § 3.55.

§ 3.58 Discipline of government attorneys.

Complaints regarding the conduct and

behavior of government attorneys shall

be directed to the Office of Professional

Responsibility of the Department of

Justice.

PART 292—REPRESENTATION AND

APPEARANCES

6. The authority citation for part 292

continues to read as follows:
Federal Register / Vol. 63, No. 12 / Tuesday, January 20, 1998 / Proposed Rules 2909

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

7. Section 292.3 is revised to read as

follows:

§ 292.3 Professional Conduct for

Practitioners—Rules and Procedures.

(a) General provisions—(1)

Disciplinary Committee. The

Disciplinary Committee established

under § 3.51 of this chapter may impose

disciplinary sanctions against any

practitioner if it finds it to be in the

public interest to do so.

(2) Authority to sanction. It will be in

the public interest to impose

disciplinary sanctions against a

practitioner who is authorized to

practice before the Service when such

person has engaged in criminal,

unethical, or unprofessional conduct, or

in frivolous behavior, as set forth in

§ 3.52 of this chapter. In accordance

with the disciplinary proceedings set

forth in part 3 of this chapter, the

Disciplinary Committee may impose

any of the following disciplinary

sanctions:

(i) Expulsion, which is permanent,

from practice before the Board of

Immigration Appeals and the

Immigration Courts or the Service, or

before all three authorities;

(ii) Suspension, including immediate

suspension, from practice before the

Board and the Immigration Courts or the

Service, or before all three authorities;

(iii) Public or private censure; or

(iv) Such other disciplinary sanction

as the Disciplinary Committee deems

appropriate.

(3) Persons subject to sanctions.

Persons subject to sanctions include any

practitioner. A practitioner is any

attorney as defined in § 1.1(f) of this

chapter who does not represent the

federal government, or any

representative as defined in § 1.1(j) of

this chapter. Attorneys employed by the

Department of Justice shall be subject to

discipline pursuant to paragraph (h) of

this section.

(4) Immediate suspension and

summary disciplinary proceedings—

(i)Immediate suspension. The Office of

the General Counsel of the Service may

ask the Disciplinary Committee to

immediately suspend from practice

before the Service any practitioner who

has been convicted of a serious crime,

as defined in § 3.52(h) of this chapter, or

who has been disbarred or is currently

under suspension or resignation with an

admission of misconduct by the bar of

any state, possession, territory,

commonwealth, or the District of

Columbia, or by any Federal Court.

Such immediate suspension may be

imposed upon the practitioner while

any appeal from the underlying

conviction or discipline is pending and

shall continue until such time as a final

administrative decision is made by the

Disciplinary Committee. If a final

administrative decision includes the

imposition of a period of suspension,

any time spent by the practitioner under

immediate suspension pursuant to this

paragraph will be credited toward the

period of suspension imposed by the

final administrative decision.

(ii) Summary disciplinary

proceedings. The Office of the General

Counsel of the Service may initiate

summary disciplinary proceedings

against any practitioner described in

paragraph (a)(4)(i) of this section.

Summary proceedings may be initiated

by the issuance of a Notice of Intent to

Discipline if accompanied by a certified

copy of a judgment of conviction or a

judgment or order of discipline.

Summary proceedings shall be

conducted in accordance with the

provisions set forth in §§ 3.54 and 3.55

of this chapter, except that a certified

copy of a judgment of conviction or

judgment or order of discipline shall

serve as a rebuttable presumption of the

commission of the crime or the

professional misconduct. The

imposition of disciplinary sanction shall

follow, unless the practitioner can rebut

the presumption by demonstrating that:

(A) The underlying criminal or

disciplinary proceeding was so lacking

in notice or opportunity to be heard as

to constitute a deprivation of due

process;

(B) There was such an infirmity of

proof establishing the practitioner’s

guilt or professional misconduct as to

give rise to the clear conviction that the

adjudicating official could not,

consistent with his or her duty, accept

as final the conclusion on that subject;

or

(C) The imposition of discipline by

the adjudicating official would result in

grave injustice.

(iii) Ineligibility to rebut the

presumption of professional

misconduct. An attorney shall not be

eligible to rebut the presumption of the

commission of professional misconduct

unless he or she is a member in good

standing of the bar of the highest court

of any state, possession, territory,

commonwealth, or the District of

Columbia.

(5) Duty of practitioner to notify the

Service of conviction or discipline. Any

practitioner who has been convicted of

a serious crime, as defined in § 3.52(h)

of this chapter, or who has been

disciplined for professional misconduct

by the bar of any state, possession,

territory, commonwealth, or the District

of Columbia, or by a Federal court must

notify the Office of the General Counsel

of the Service of any such conviction or

disciplinary action within 30 days of the

issuance of the initial order, even if an

appeal of the conviction or discipline is

pending. Failure to do so may result in

immediate suspension as set forth in

paragraph (a)(3)(i) of this section. This

duty to notify applies only to

convictions for serious crimes or rulings

of professional misconduct entered after

the effective date of this regulation.

(b) Grounds of discipline as set forth

in § 3.52 of this chapter. It is deemed to

be in the public interest for the

Disciplinary Committee to impose

disciplinary sanctions as described in

paragraph (a) of this section against any

practitioner who falls within one or

more of the categories enumerated in

§ 3.52 of this chapter, with the

exception of paragraphs (k) and (l) of

that section, but these categories do not

constitute the exclusive grounds for

which disciplinary sanctions may be

imposed in the public interest.

(c) Filing of and preliminary inquiry

into complaints, resolutions; referral of

complaints—(1) Practitioners

authorized to practice before Service.

Complaints of criminal, unethical, or

unprofessional conduct, or of frivolous

behavior by a practitioner who is

authorized to practice before the Service

shall be filed with the Office of the

General Counsel of the Service.

Complaints must be submitted in

writing and must state in detail the

information that supports the basis for

the complaint, including, but not

limited to, the names and addresses of

the complainant and the practitioner,

the date(s) of the conduct or behavior,

the nature of the conduct or behavior,

the individual involved, the harm or

damages sustained by the complainant,

and any other relevant information. Any

individual may file a complaint with the

Office of the General Counsel of the

Service. The Office of the General

Counsel of the Service shall notify the

Office of the General Counsel of the

Executive Office for Immigration

Review (EOIR) of any complaint filed

that pertains, in whole or in part, to a

matter before the Board or the

Immigration Courts.

(2) Practitioners authorized to

practice before the Board and the

Immigration Courts. Complaints of

criminal, unethical, or unprofessional

conduct, or of frivolous behavior by a

practitioner who is authorized to

practice before the Board and the

Immigration Courts shall be filed with

the Office of the General Counsel of

EOIR pursuant to the procedures set

forth in § 3.53(a) of this chapter.
2910 Federal Register / Vol. 63, No. 12 / Tuesday, January 20, 1998 / Proposed Rules

(3) Preliminary inquiry. Upon receipt

of a complaint or on its own initiative,

the Office of the General Counsel of the

Service will initiate a preliminary

inquiry. If a complaint concerning a

practitioner is filed by a client or former

client, the complainant thereby waives

the attorney-client privilege and any

other applicable privilege, as between

the complainant and the practitioner, to

the extent necessary for the preliminary

inquiry and any subsequent prosecution

of the allegations. If the Office of the

General Counsel of the Service

determines that a complaint is without

merit, no further action will be taken.

The Office of the General Counsel of the

Service may, in its discretion, close a

preliminary inquiry if the complainant

fails to comply with its reasonable

requests for assistance, information, or

documentation. The complainant shall

be notified of such determinations in

writing.

(4) Resolutions reached prior to the

issuance of a Notice of Intent to

Discipline. The Office of the General

Counsel of the Service, in its discretion,

may issue warning letters and

admonitions, and may enter into

agreements in lieu of discipline, prior to

the issuance of a Notice of Intent to

Discipline.

(5) Referral of complaints of criminal

conduct. If the Office of the General

Counsel of the Service receives credible

information or allegations that a

practitioner has engaged in criminal

conduct in connection with an

immigration matter, the Office of the

General Counsel of the Service shall

refer the matter to the Inspector General

and, if appropriate, to the Federal

Bureau of Investigation. In such cases,

in making the decision to pursue

disciplinary sanctions, the Office of the

General Counsel of the Service shall

coordinate in advance with the

appropriate investigative and

prosecutive authorities of the

Department to ensure that neither the

disciplinary process nor criminal

prosecutions are jeopardized.

(d) Notice of Intent to Discipline—(1)

Issuance of Notice to practitioner. If,

upon completion of the preliminary

inquiry, the Office of the General

Counsel of the Service determines, by a

preponderance of the evidence, that a

practitioner has engaged in professional

misconduct as set forth in § 3.52 of this

chapter, it will issue a Notice of Intent

to Discipline to the practitioner named

in the complaint. This notice will be

served upon the practitioner by personal

service as defined in § 103.5a of this

chapter. Such notice shall contain a

statement of the charge(s), a copy of the

preliminary inquiry report, the

proposed disciplinary sanctions to be

imposed, the procedure for filing an

answer or requesting a hearing, and the

mailing address and telephone number

for the Disciplinary Committee. The

Office of the General Counsel of the

Service shall forward a copy of the

Notice of Intent to Discipline to the

Disciplinary Committee.

(2) Copy of Notice to EOIR; reciprocity

of disciplinary sanctions. A copy of the

Notice of Intent to Discipline shall be

forwarded to the Office of the General

Counsel of EOIR. The Office of the

General Counsel of EOIR may submit a

written request to the adjudicating

official asking that he or she recommend

that any discipline imposed against a

practitioner’s right to practice before the

Service also apply to the practitioner’s

right to practice before the Board and

the Immigration Courts. Proof of service

on the practitioner of any request to

broaden the scope of the proposed

discipline must be filed with the

adjudicating official.

(3) Answer. The practitioner shall file

an answer to the Notice of Intent to

Discipline with the Office of the General

Counsel of the Service within 30 days

of the date of service, unless an

extension of time is granted for good

cause by the Disciplinary Committee. A

request for an extension of time to

answer must be received by the

Disciplinary Committee at EOIR

Headquarters at least three (3) working

days before the time to answer has

expired. A copy of such request shall be

served on the Office of the General

Counsel of the Service. The answer shall

be in writing, must respond to each

charge in a substantive and detailed

manner, and may include any

supporting documents, including

affidavits or statements. The answer

shall state whether the practitioner

requests a hearing on the matter. The

Office of the General Counsel of the

Service shall forward a copy of the

practitioner’s answer to the Disciplinary

Committee or, if no answer was filed,

notification of such shall be filed with

the Disciplinary Committee.

(4) Failure to file an answer. Failure

to file an answer in a timely manner

shall be deemed an admission to the

factual allegations set forth in the Notice

of Intent to Discipline and no further

proof shall be required to establish the

truth of such facts. The Office of the

General Counsel of the Service shall

submit proof of personal service of the

Notice of Intent to Discipline. The

practitioner shall be precluded

thereafter from requesting a hearing on

the matter. The recommended

disciplinary sanctions in the Notice of

Intent to Discipline shall then become

final and the Disciplinary Committee

shall issue a final order adopting the

recommended disciplinary sanctions

against the practitioner. A practitioner

may file a motion to set aside a final

order of disciplinary sanctions, issued

pursuant to this paragraph, with the

Disciplinary Committee if:

(i) Such a motion is filed within 15

days of service of the final order, and

(ii) His or her failure to file an answer

was due to exceptional circumstances

(such as serious illness of the

practitioner or death of an immediate

relative of the practitioner, but not

including less compelling

circumstances) beyond the control of

the practitioner.

(e) Hearing and disposition. Upon the

filing of an answer, the matter shall be

heard and decided according to the

procedures set forth in §§ 3.55 and 3.56

of this chapter. The Office of the

General Counsel of the Service shall

represent the government.

(f) Referral. In addition to or in lieu

of initiating disciplinary proceedings

against a practitioner, the Office of the

General Counsel of the Service may

notify the appropriate state and/or local

professional licensing or regulatory

authority of a complaint filed against a

practitioner. Any final administrative

decision imposing sanctions against a

practitioner (other than a private

censure) shall be reported to the

appropriate state and/or local

professional licensing or regulatory

authority.

(g) Confidentiality—(1) Complaints

and preliminary inquiries. Except as

otherwise provided by law or

regulation, information concerning

complaints or preliminary inquiries is

confidential. A practitioner whose

conduct is the subject of a complaint or

preliminary inquiry, however, may

waive confidentiality, except that the

Office of the General Counsel of the

Service may decline to permit a waiver

of confidentiality if it is determined that

an ongoing preliminary inquiry may be

substantially prejudiced by a public

disclosure before the filing of a Notice

of Intent to Discipline.

(i) Disclosure of information for the

purpose of protecting the public. The

Office of the General Counsel of the

Service, after private notice to the

practitioner, may disclose information

concerning a complaint or preliminary

inquiry for the protection of the public

when the necessity for disclosing

information outweighs the necessity for

preserving confidentiality in

circumstances including, but not

limited to, the following:

(A) A practitioner has caused, or is

likely to cause, harm to client(s), the
Federal Register / Vol. 63, No. 12 / Tuesday, January 20, 1998 / Proposed Rules 2911

public, or the administration of justice,

such that the public or specific

individuals should be advised of the

nature of the allegations. If disclosure of

information is made pursuant to this

paragraph, the Office of the General

Counsel of the Service may define the

scope of information disseminated and

may limit the disclosure of information

to specified individuals or entities;

(B) A practitioner has committed

criminal acts or is under investigation

by law enforcement authorities;

(C) A practitioner is under

investigation by a regulatory or

licensing agency, or has committed acts

or made omissions that may reasonably

result in investigation by a regulatory or

licensing agency;

(D) A practitioner is the subject of

multiple complaints and the Office of

the General Counsel of the Service has

determined not to pursue all of the

complaints. The Office of the General

Counsel of the Service may inform

complainants whose allegations have

not been pursued of the status of the

other preliminary inquiries or the

manner in which the other complaint(s)

against the practitioner have been

resolved.

(ii) Disclosure of information for the

purpose of conducting a preliminary

inquiry. The Office of the General

Counsel of the Service, in the exercise

of discretion, may disclose documents

and information concerning complaints

and preliminary inquiries to the

following individuals or entities:

(A) To witnesses or potential

witnesses in conjunction with a

complaint or preliminary inquiry;

(B) To other governmental agencies

responsible for the enforcement of civil

or criminal laws;

(C) To agencies and other

jurisdictions responsible for

professional licensing;

(D) To the complainant or a lawful

designee; and

(E) To the practitioner who is the

subject of the complaint or preliminary

inquiry or the practitioner’s counsel of

record.

(2) Resolutions reached prior to the

issuance of a Notice of Intent to

Discipline. Resolutions, such as warning

letters, admonitions, and agreements in

lieu of discipline, reached prior to the

issuance of a Notice of Intent to

Discipline will remain confidential.

(3) Notices of Intent to Discipline and

action subsequent thereto. Notices of

Intent to Discipline and any action that

takes place subsequent to their issuance,

except for the imposition of private

censures, may be disclosed to the

public, except that private censures may

become part of the public record if

introduced as evidence or a prior record

of discipline in any subsequent

proceeding. Settlement agreements

reached after the issuance of a Notice of

Intent to Discipline may be disclosed to

the public upon final approval by the

adjudicating official and the

Disciplinary Committee. Disciplinary

hearings are open to the public, except

as noted in § 3.55(a)(iii) of this chapter.

(h) Discipline of government

attorneys. Complaints regarding the

conduct and behavior of government

attorneys shall be directed to the Office

of Professional Responsibility of the

Department of Justice.

Dated: January 12, 1998.

Janet Reno,

Attorney General.

[FR Doc. 98–1192 Filed 1–16–98; 8:45 am]

BILLING CODE 4410–30–M

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. 97–CE–130–AD]

RIN 2120–AA64

Airworthiness Directives; Pilatus

Aircraft Ltd. Model PC–7 Airplanes

AGENCY: Federal Aviation

Administration, DOT.

ACTION: Notice of proposed rulemaking

(NPRM).

SUMMARY: This document proposes to

adopt a new airworthiness directive

(AD) that would apply to certain Pilatus

Aircraft Ltd. Model PC–7 airplanes. The

proposed AD would require inspecting

the elevator and rudder attachment

brackets for cracks and/or corrosion,

and repairing or replacing any cracked

or corrosion-damaged parts, as

applicable. The proposed AD is the

result of mandatory continuing

airworthiness information (MCAI)

issued by the airworthiness authority for

Switzerland. The actions specified by

the proposed AD are intended to

prevent failure of the elevator and

rudder attachment brackets because of

cracks or corrosion damage, which

could result in the elevator and/or

rudder separating from the airplane

with consequent loss of airplane

control.

DATES: Comments must be received on

or before February 23, 1998.

ADDRESSES: Submit comments in

triplicate to the Federal Aviation

Administration (FAA), Central Region,

Office of the Regional Counsel,

Attention: Rules Docket No. 97–CE–

130–AD, Room 1558, 601 E. 12th Street,

Kansas City, Missouri 64106. Comments

may be inspected at this location

between 8 a.m. and 4 p.m., Monday

through Friday, holidays excepted.

Service information that applies to the

proposed AD may be obtained from

Pilatus Aircraft Ltd., Customer Liaison

Manager, CH–6371 Stans, Switzerland;

telephone: +41 41 619 6509; facsimile:

+41 41 610 3351. This information also

may be examined at the Rules Docket at

the address above.

FOR FURTHER INFORMATION CONTACT: Mr.

Roman T. Gabrys, Aerospace Engineer,

Small Airplane Directorate, Airplane

Certification Service, FAA, 1201

Walnut, suite 900, Kansas City, Missouri

64106; telephone (816) 426–6932;

facsimile (816) 426–2169.

SUPPLEMENTARY INFORMATION:

Comments Invited

Interested persons are invited to

participate in the making of the

proposed rule by submitting such

written data, views, or arguments as

they may desire. Communications

should identify the Rules Docket

number and be submitted in triplicate to

the address specified above. All

communications received on or before

the closing date for comments, specified

above, will be considered before taking

action on the proposed rule. The

proposals contained in this notice may

be changed in light of the comments

received.

Comments are specifically invited on

the overall regulatory, economic,

environmental, and energy aspects of

the proposed rule. All comments

submitted will be available, both before

and after the closing date for comments,

in the Rules Docket for examination by

interested persons. A report that

summarizes each FAA-public contact

concerned with the substance of this

proposal will be filed in the Rules

Docket.

Commenters wishing the FAA to

acknowledge receipt of their comments

submitted in response to this notice

must submit a self-addressed, stamped

postcard on which the following

statement is made: ‘‘Comments to

Docket No. 97–CE–130–AD.’’ The

postcard will be date stamped and

returned to the commenter.

Availability of NPRMs

Any person may obtain a copy of this

NPRM by submitting a request to the

FAA, Central Region, Office of the

Regional Counsel, Attention: Rules

Docket No. 97–CE–130–AD, Room 1558,