federal register /vol. 65, no. 124/tuesday, june 27, 2000 ... · federal register/vol. 65, no....

39513Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Rules and Regulations

returnable, plastic containers to beshipped with the highly portable cardsis also unacceptable since theportability of the cards could enable ahandler to evade inspection on a lot orlots of nectarines or peaches by movingthe cards to uninspected containers, andcould jeopardize the industries’ ‘‘traceback’’ program. All of these alternativeswere, therefore, rejected.

At the Management ServicesCommittee meeting, the membersreviewed all subcommitteerecommendations available to them.The members of the ManagementServices Committee include thechairpersons and vice-chairpersons ofthe committees, who generally havemany years experience working in theindustries. They, too, discussedrecommendations of subcommittees andwere free to make alternativerecommendations or reviserecommendations to the committees, asthey reviewed such recommendations.

Like committee meetings,subcommittee meetings are open to thepublic and comments are widelysolicited.

This rule does not impose anyadditional reporting and recordkeepingrequirements on either small or largehandlers. As with all Federal marketingorder programs, reports and forms areperiodically reviewed to reduceinformation requirements andduplication by industry and publicsector agencies. In addition, as noted inthe initial regulatory flexibility analysis,the Department has not identified anyrelevant Federal rules that duplicate,overlap, or conflict with this rule.

However, as previously stated,nectarines and peaches under the ordershave to meet certain requirements setforth in the standards issued under theAgricultural Marketing Act of 1946 (7U.S.C. 1621 through 1627). Standardsissued under the Agricultural MarketingAct of 1946 are otherwise voluntary.

In addition, the committees’ meetingswere widely publicized throughout thenectarine and peach industries and allinterested parties were invited to attendthe meetings and participate incommittee deliberations on all issues.These meetings are held annuallyduring the last week of November orfirst week of December. Like allcommittee meetings, the November 30,1999, meetings were public meetingsand all entities, both large and small,were able to express views on theseissues. The committees themselves arecomposed of producers.

An interim final rule concerning thisaction was published in FederalRegister on March 22, 2000 (65 FR15205). Copies of the rule were mailed

to all committee members and handlersby the committee staff on March 22,2000. Finally, the rule was madeavailable through the Internet by theOffice of the Federal Register. A 60-daycomment period ending May 22, 2000,was provided to allow interestedpersons to respond to the proposal. Onecomment was received during thecomment period in response to theproposal.

The commenter submitted severalclarifications to the interim final rule.One clarification dealt with theinadvertent omission of the ‘‘GrandSun’’ nectarine variety from the varietyspecific size designations in paragraph(a)(3) of § 916.356. The clarification alsonoted that the interim final rule listedthe variety as ‘‘Gran Sun.’’ As notedearlier, these corrections relative to theGrand Sun nectarine variety have beenmade.

The commenter also requested namecorrections for two peach varieties.According to the commenter, the name‘‘Prima Gattie’’ should be corrected toread ‘‘Prima Gattie 8,’’ and the name‘‘Yukon King’’ should be corrected toread ‘‘Autumn Snow.’’

Accordingly, appropriate changes aremade based upon the commentreceived.

A small business guide on complyingwith fruit, vegetable, and specialty cropmarketing agreements and orders maybe viewed at the following website:http://www.ams.usda.gov/fv/moab.html. Any questions about thecompliance guide should be sent to JayGuerber at the previously mentionedaddress in the FOR FURTHER INFORMATIONCONTACT section.

After consideration of all relevantmaterial presented, the information andrecommendations submitted by thecommittees, and other information, it isfound that finalizing the interim finalrule, with appropriate changes, aspublished in the Federal Register (65FR 15205, March 22, 2000) will tend toeffectuate the declared policy of the Act.

It is further found that good causeexists for not postponing the effectivedate of this rule until 30 days afterpublication in the Federal Register (5U.S.C. 553) because: (1) Handlers arealready shipping nectarines and peachesfrom the 2000 crop; (2) handlers arealready aware of this rule, which wasunanimously recommended at a publicmeeting; and (3) a 60-day commentperiod was provided for in the interimfinal rule.

List of Subjects

7 CFR Part 916

Marketing agreements, Nectarines,Reporting and recordkeepingrequirements.

7 CFR Part 917

Marketing agreements, Peaches, Pears,Reporting and recordkeepingrequirements.

Accordingly, the interim final ruleamending 7 CFR parts 916 and 917,which was published at 65 FR 15205 onMarch 22, 2000, is adopted as a finalrule with the following changes:

1. The authority citation for 7 CFRparts 916 and 917 continues to read asfollows:

Authority: 7 U.S.C. 601–674.

PART 916—NECTARINES GROWN INCALIFORNIA

§ 916.356 [Amended]2. Section 916.356, paragraph (a)(3) is

amended by adding the words ‘‘GrandSun’’ between the words ‘‘EarlyDiamond’’ and ‘‘Johnny’s Delight.’’

PART 917—FRESH PEARS ANDPEACHES GROWN IN CALIFORNIA

§ 917.459 [Amended]

3. Section 917.459, paragraph (a)(6) isamended by revising the words ‘‘PrimaGattie’’ to read ‘‘Prima Gattie 8,’’removing the words ‘‘Yukon King,’’ andadding the words ‘‘Autumn Snow’’between the words ‘‘Autumn Rose’’ and‘‘Cal Red.’’

Dated: June 21, 2000.Robert C. Keeney,Deputy Administrator, Fruit and VegetablePrograms.[FR Doc. 00–16151 Filed 6–26–00; 8:45 am]BILLING CODE 3410–02–P

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 forPractitioners—Rules and Procedures

AGENCY: Executive Office forImmigration Review and Immigrationand Naturalization Service, Justice.ACTION: Final rule.

SUMMARY: This final rule amends therules and procedures concerningprofessional conduct for attorneys and

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39514 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Rules and Regulations

representatives (practitioners) whoappear before the Executive Office forImmigration Review (EOIR) and/or theImmigration and Naturalization Service(the Service). This final rule alsoincludes a provision that waspromulgated as an interim rule on April6, 1992, pursuant to section 545 of theImmigration Act of 1990, concerningsanctions against attorneys orrepresentatives who engage in frivolousbehavior in immigration proceedings.This final rule outlines the authorityEOIR has to investigate complaints andimpose disciplinary sanctions againstpractitioners who appear before itstribunals, and clarifies the authority ofthe Service to investigate complaintsregarding practitioners who conductbusiness with the Service. This finalrule permits EOIR and the Service toinvestigate allegations of ethicalmisconduct and initiate disciplinaryproceedings more effectively andefficiently while ensuring the dueprocess rights of the practitioner. Thefinal rule also reinstates the Board ofImmigration Appeals as the reviewingbody for disciplinary decisions, insteadof the Disciplinary Committee, as wasset forth in the proposed rule. Both thepublic comments and the Department ofJustice’s (Department) reassessment ofthe appellate review process resolvedthat, as is presently established, Boardreview of disciplinary decisions is moreefficient and practical and shouldtherefore remain unchanged.Additionally, this final rule enablesefficient resolution of frivolouscomplaints and meritorious cases, aconsideration critical to, and in the bestinterests of, all parties involved.EFFECTIVE DATE: July 27, 2000.FOR FURTHER INFORMATION CONTACT:Charles Adkins-Blanch, Acting GeneralCounsel, Executive Office forImmigration Review, 5107 LeesburgPike, Suite 2400, Falls Church, Virginia,22041, telephone (703) 305–0470, orJulia A. Doig, Chief Appellate Counsel,Immigration and Naturalization Service,5113 Leesburg Pike, Suite 200, FallsChurch, Virginia 22041, telephone (703)756–6257.SUPPLEMENTARY INFORMATION: Currently,the regulations at 8 CFR 292.3 requirethe Service to investigate complaintsfiled regarding the conduct of attorneysand representatives (referred to in thefinal rule as practitioners) practicingbefore both the Service and EOIR. If theinvestigation establishes, to thesatisfaction of the Service, thatdisciplinary proceedings should beinstituted, the General Counsel of theService serves a copy of the writtencharges upon the attorney or

representative and upon the Office ofthe Chief Immigration Judge. Thepresent procedure provides for thegovernment to be represented by aService attorney in disciplinaryproceedings before an ImmigrationJudge. The decision of the ImmigrationJudge may be appealed to the Board ofImmigration Appeals (Board) by eitherparty.

On January 20, 1998, the Service andEOIR published a proposed rule in theFederal Register (63 FR 2901) amendingparts 3 and 292 of the rules andprocedures governing professionalconduct for practitioners who appearbefore EOIR, which includes the Boardand the Immigration Courts, as well asthe rules and procedures governingprofessional conduct for practitionerswho conduct business before theService. The proposed rule includedvarious grounds of discipline andprocedures for hearings and appeals,which, although somewhat moresophisticated, were in many wayssimilar to the approach of the currentregulations. The proposed rule wasneither written on a clean slate nor didit propose to institute a new form ofprofessional discipline; in fact, it wasmerely intended to clarify and improvethe existing procedures and, inparticular, to remove the Service fromthe enforcement role with respect toprofessional misconduct occurringbefore the Board and the ImmigrationCourts. The proposed rule did contain anew procedure for adjudicatingdisciplinary complaints. The proposedprocess included a hearing by anadjudicating official appointed by theDirector of EOIR and a report by thatadjudicating official to a three-memberDisciplinary Committee appointed bythe Deputy Attorney General.

This final rule retains the Service’sinvestigative and prosecutorialresponsibilities only in disciplinaryproceedings for those practitioners whoconduct business before the Service asan adjudicative body, e.g., in asylumproceedings, adjustment interviews, andvisa petition cases, but transfers thesesame investigative and prosecutorialresponsibilities to EOIR for practitionersappearing before the Board and theImmigration Courts. This change allowseach agency to maintain separatejurisdictions over practitioners basedupon which agency they appear before,while permitting both agencies to utilizethe same hearing and appeal process.This change will result in a fair andconsistent application of the rules.

In response to the proposedrulemaking, EOIR and the Servicereceived 491 comments. Identical formletters from South Florida practitioners

totaled 130, with 17 additionalindividual letters from the same region.These letters account for approximately30% of the total comments received.Another 277 names were signed to onepetition-style letter prepared by thenational office of the AmericanImmigration Lawyers Association(AILA), accounting for approximately57% of the total comments received.Some of the public comments weresupportive; one in particular recountedthe detrimental effect that onepractitioner’s negligence had on twounsuspecting immigrants. Many others,however, were opposed to any rule thatwould regulate practitioners’professional conduct. EOIR and theService gave full consideration to eachand every public comment submittedduring the comment period. We firstsubmit some general authorities andthen address the concerns expressed inthe comments in the following passages.

In exercising its plenary powers overimmigration, Congress has grantedexpress authority to the AttorneyGeneral to ‘‘establish such regulations* * * as (s)he deems necessary forcarrying out (her) authority’’ under thelaws relating to the immigration andnaturalization of aliens. 8 U.S.C.1103(a)(3). Congress also provided thataliens in immigration proceedings‘‘shall have the privilege of beingrepresented (at no expense to thegovernment) by such counsel,authorized to practice in suchproceedings, as he shall choose.’’ 8U.S.C. 1362 (emphasis added). In sodoing, Congress vested impliedauthority with the Attorney General toprescribe standards of conduct and rulesof procedure that are applicable topractitioners who appear before theBoard, the Immigration Courts, and theService.

In the proposed rule, EOIR and theService noted that the primary purposeof prescribing rules and settingstandards for determining who maypractice before the Board, theImmigration Courts, and the Service,and for adopting procedures fordisciplining those practitioners who failto conform to such standards, includesthe protection of the public, thepreservation of the integrity of theImmigration Courts, and themaintenance of high professionalstandards. EOIR and the Service arecommitted to these important publicinterest objectives through the fair andefficient administration of this finalrule.

While most practitioners adequatelyrepresent their clients in immigrationmatters, a small minority ofpractitioners do not meet the minimum



standards set forth in this rule and aneven smaller minority may take unfairadvantage of the very clients they havepromised to help. Others have engagedin conduct that has rendered them unfitto practice law, as determined by thestate courts which originally licensedthem to practice. The practitioners whoshould not, and in fact cannot, bepermitted to continue to practice beforeEOIR and the Service are thepractitioners who will primarily beaffected by this rule.

General Comments

A chief concern of many commenterswas that this rule would have a chillingeffect on an immigration practitioner’sability to advocate zealously for his orher client, suggesting that both the FirstAmendment right to freedom of speechand the Sixth Amendment right tocounsel were implicated by such a rule.A similar majority argued that it is notthe function of EOIR or the Service tocontrol the conduct of attorneys whohave been admitted to the practice oflaw by state courts. Many commentersexpressed concern that sanctionsimposed pursuant to this rule could cutoff a practitioner’s livelihood orjeopardize his or her professionalreputation, although someacknowledged a need to protect clientsfrom unscrupulous immigrationpractitioners, citing incompetent and/orunethical conduct by practitioners. Onecommenter was particularly concernedwith protecting non-profit agencies fromthe burdens of potentially higherprofessional liability policies, more stafftraining, and better case-screeningprocedures.

Several commenters suggested thatEOIR and the Service pattern theproposed disciplinary rule after thedisciplinary process applicable torepresentatives who appear beforeAdministrative Law Judges in the SocialSecurity Administration (SSA) and theInternal Revenue Service (IRS). Undersuch advisement, EOIR and the Serviceconsulted SSA and IRS regulations indrafting this disciplinary rule andadopted many of the provisionspromulgated by those agencies.

The following paragraphs provide asection-by-section summary of thecomments received, followed by theDepartment’s response. Many of thecomments were lengthy and we haveattempted to summarize thecommenters’ views as accurately aspossible. We have responded to all ofthe relevant issues raised in thecomments and have highlighted whererevisions have been made to theproposed rule. Please note that section

numbering in the final rule has beenrevised.

Sections 3.101(a) and 3.106(a)—Adjudicating Officials and Compositionof the Disciplinary Committee

Comments. Some commenterssuggested that an inherent conflictexists given that adjudicating officialsand the Disciplinary Committee have aconnection to EOIR that taints the entiredisciplinary process. Commentsregarding the composition of theDisciplinary Committee included thefollowing: The composition of theCommittee is vague; the pool of possiblemembers should be specified with termlimits; no qualifications for theCommittee have been specified; theCommittee should be independent ofthe Department; the Committee shouldinclude a non-lawyer; the Committeeshould include a member of the privatebar; and the EOIR representative shouldnot serve on the Committee if he or sheis also the complainant in a particularcase. Several commenters also suggestedthat an Immigration Judge should notserve as the adjudicating official in acase where he or she is also thecomplainant, an Immigration Judgeshould not serve as the adjudicatingofficial in any case involving apractitioner who regularly appearsbefore him or her, and the disciplinaryhearing should be conducted by anAdministrative Law Judge (ALJ)pursuant to the AdministrativeProcedure Act (APA).

Other commenters assumed thatImmigration Judges would beprejudiced against aliens while favoringthe government and, therefore, wouldnot be fair adjudicating officials. Somecommenters noted that the rule providesno guidelines for appointingadjudicating officials and noopportunity to submit briefs orarguments to the DisciplinaryCommittee.

Response. Although somecommenters concluded that theconnection between adjudicatingofficials and EOIR taints thedisciplinary process, there was nospecific suggestion of how such aconnection causes conflict orunfairness. Moreover, there is littlemerit to the argument of inherentconflict, since the Board andImmigration Judges are all part of theDepartment and yet act independentlyin fairly adjudicating the nation’simmigration laws. A connectionbetween EOIR and the proposeddisciplinary process is not inherentlyunfair nor does it create an inherentconflict. Precedent for such a processexists within the disciplinary system

used by the Social SecurityAdministration, which uses its ownALJs as hearing officers and its ownAppeals Council as a reviewing panel.

However, EOIR and the Service haverevised several of the provisions in thissection in response to the commentsthat we received. The rule has beenrevised to provide that an ImmigrationJudge shall not serve as the adjudicatingofficial in cases where he or she is alsothe complainant in a case(§ 3.106(a)(1)(i)). Also, an ImmigrationJudge shall not serve as the adjudicatingofficial in any case involving apractitioner who regularly appearsbefore him or her (§ 3.106(a)(1)(i)). Inthe final rule, the Chief ImmigrationJudge will appoint the adjudicatingofficial in most cases (§ 3.106(a)(1)(i)).

More significantly, in light of thecomments received, EOIR and theService have, in the final rule, replacedthe proposed Disciplinary Committeewith the Board in all respects. Since theBoard already has the authority toimplement the existing disciplinarysystem under § 3.1(d)(3), and to hearappeals of disciplinary sanctions under§ 292.3(b)(1)(vi), revising the final ruleto have appeals go to the Board resultsin no change in the Board’s current (andlong-standing) role.

We have identified a number ofreasons for retaining the Board as theappellate body for disciplinarydecisions made by adjudicatingofficials. First, the Board providespractitioners subject to theseproceedings with an established appealprocess. All of the procedural practicesconcerning briefing schedules,transcripts, motions, and oral argumentswill be consistent for both immigrationproceedings and disciplinaryproceedings. Most practitioners knowthe Board’s appeal procedures and willbe familiar with them when appealingany disciplinary decision. Second, theBoard has the immigration expertisewhich may prove critical where apractitioner’s conduct is intricatelyintertwined with the legal issues in anunderlying immigration case. Third, theBoard, unlike the DisciplinaryCommittee, has the ability to publishprecedent decisions, thereby providingpractitioners and the public withauthoritative interpretations of theregulations. Fourth, it is logical for theBoard to exercise ultimate control overpractitioners who appear before EOIR,and also consistent with state courtpractice of having the highest appellatelevel oversee the ultimate discipline ofpractitioners. Finally, the Board isstructured to hear cases on a regular,consistent basis and has the supportresources (attorney staff, paralegals,



clerks) to fully staff a disciplinarysystem.

By retaining the Board’s reviewauthority, we anticipate the issuance oftimely decisions by members possessingthe requisite legal and proceduralexpertise, as well as adjudicatoryexperience. This assumption is based onthe fact that the Board has revieweddisciplinary cases on appeal throughoutthe existence of the current disciplinaryprogram. Some of the comments to theproposed rule raised opposition to the‘‘in-house’’ nature of the DisciplinaryCommittee. However, given that theBoard is an established independentadjudicator within the Department, therevised appeal structure should dispelany concerns about an ‘‘in-house’’review.

One commenter suggesteddisciplinary hearings should beconducted pursuant to theAdministrative Procedure Act (APA)(codified at 5 U.S.C. 551 et seq.), whichprimarily regulates the processes ofrulemaking and adjudication byagencies with substantial independentauthority in the exercise of specificfunctions. Determining whether theAPA applies to disciplinary proceedingsconducted under this rule requirescareful consideration of several factors.

As stated above, Congress has grantedauthority to the Attorney General to setstandards for determining who maypractice before the Board, theImmigration Courts, and the Service,and to prescribe rules of procedure fordisciplining those who fail to conformto such standards. An agency with thepower to admit practitioners has theauthority to disbar or discipline themfor professional misconduct.

Also, since deportation proceedingsare not subject to the APA, see Marcellov. Bonds, 349 U.S. 302, 309 (1955)(Administrative Procedure Act is notapplicable to deportation proceedingsunder the Immigration and NationalityAct); Castillo-Villagra v. INS, 972 F.2d1017, 1025 (9th Cir. 1992) (Immigrationand Nationality Act, rather thanAdministrative Procedure Act, controlsexclusively in deportation proceeding),disciplinary proceedings pursuant to 8U.S.C. 1362 historically have not beenconducted under the APA, see Hermanv. Dulles, 205 F.2d 715, 717 (D.C. Cir.1953) (existing powers of administrativeagencies to control practice by counselwho appear before them are not changedby the Administrative Procedure Act,citing Attorney General’s Manual on theAdministrative Procedure Act, 1947,p.66). Furthermore, no statutoryprovision exists which requires theadjudication of such disciplinaryproceedings 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 ifanother statute requires that they beutilized); see also Amalgamated MeatCutters and Butcher Workmen v.Connally, 337 F. Supp. 737, 761–62 (D.D.C.1971).

Moreover, this rule provides ampleprotections for practitioners subject todiscipline, analogous to proceduresprovided in the APA and consistentwith the delineated public interestobjectives of the Department. Suchprotections include timely notice ofhearings and the opportunity to beheard with respect to the chargeslodged.

In addition, subjecting disciplinaryproceedings to the strictures of the APAis unnecessary, and it would also beimpractical and burdensome given thatImmigration Judges (who comprise thelargest pool of potential adjudicatingofficials) do not adjudicate casespursuant to the APA. Finally, as statedin the supplementary information to theproposed rule, practitioners subject todiscipline may avail themselves ofjudicial review pursuant to 28 U.S.C.1331 upon issuance of a finaladministrative order.

Therefore, in light of the aboveconsiderations and in order to maintainconsistency with, among other things,the current disciplinary rule, Boarddisciplinary decisions that have beenupheld by the Federal courts, andestablished Immigration Court practices,the Department has determined thatdisciplinary hearings will be conductedin the same manner as immigrationproceedings.

The proposed rule contained noprovision for briefs to be submitted ororal arguments to be heard before theDisciplinary Committee. However, nowthat the rule retains the Board as theappellate body in disciplinaryproceedings, the regulations that governoral argument (see 8 CFR 3.1(e)) and thesubmission of briefs on appeal (see 8CFR 3.3(c)) are incorporated byreference in the final rule.

Sections 3.103 and 292.3(c)—ImmediateSuspension and Summary Proceeding

Comments. Several commenterssuggested that an immediate suspensionprovision could create an unfair andprejudicial result based on ‘‘a skeletalcomplaint filed by a disgruntled client.’’The commenters expressed concern thata practitioner could be suspended basedon mere allegations of misconduct. Thispresumption is incorrect, as explainedbelow. Others felt that a criminalconviction or state bar disciplinaryaction should be ‘‘final’’ before an

administrative decision is rendered;otherwise ‘‘a practitioner will have beendeprived of his or her livelihood duringthat period’’ should the conviction ordisciplinary action be overturned orvacated.

Response: The disciplinary ruleprovides that a practitioner may besubject to immediate suspension and asummary proceeding based only uponeither (i) disbarment, suspension, orresignation with an admission ofmisconduct as found by a state orFederal court or (ii) a conviction for aserious crime. The language in thisprovision is similar to that found in theRules for Disciplinary Enforcement forthe United States Court of Appeals forthe District of Columbia Circuit, theDistrict of Columbia Court of Appeals’Rules Governing the Bar, and theCalifornia Rules of ProfessionalConduct.

The immediate suspension provision,therefore, is designed to protect thepublic from practitioners who have acriminal conviction, are no longer in‘‘good standing’’ as set forth in 8 CFR1.1(f), or who have otherwise forfeitedor encumbered their law license. Suchmisconduct does not arise from ‘‘askeletal complaint filed by a disgruntledclient.’’ Rather, based upon facts provenby the requisite high standard of proof(‘‘clear and convincing evidence’’ inmost disciplinary matters and ‘‘beyonda reasonable doubt’’ in criminal matters)and applicable law, a state or Federalcourt has already made a determinationthat the practitioner has engaged inserious misconduct. As amplified in thefinal rule, such a determination, asevidenced by a certified copy of a courtrecord or order, brings ‘‘title deeds ofhigh respect’’ and must be accordedgreat deference.

Furthermore, a rule that would permita practitioner who has been criminallyconvicted of a serious crime to continueto practice before the Board, theImmigration Courts, or the Servicepending all appeals of the underlyingmatter would expose the court’sproceedings to the intervention ofdisqualified, unfit practitioners andsubject clients to unnecessary risk.However, recognizing that a practitionermay seek to appeal such a convictionduring the period of his immediatesuspension, the rule has been amendedso that no final administrativedisciplinary order may be entered untilall direct appeals of the underlyingconviction have been exhausted.Additionally, the final rule providesthat the Board may set aside animmediate suspension order ‘‘when itappears in the interest of justice to doso.’’



The final rule provides an attorneywith an opportunity to rebut thepresumed validity of the underlyingdisciplinary order in a summaryproceeding by demonstrating that: (1)The underlying disciplinary proceedingwas so lacking in notice or opportunityto be heard as to constitute adeprivation of due process; (2) there wassuch an infirmity of proof establishingthe attorney’s professional misconductas to give rise to the clear convictionthat the adjudicating official could not,consistent with his or her duty, acceptas final the conclusion on that subject;or (3) the imposition of discipline by theadjudicating official would result ingrave injustice. The proposed ruledenied an attorney admitted in only onejurisdiction the opportunity to rebut thepresumption of professionalmisconduct. This provision has beeneliminated in the final rule. Thisprocedure comports in part with, amongother jurisdictions, the United StatesSupreme Court’s practice in imposingreciprocal discipline.

Additionally, the proposed rule madethe rebuttable presumption safeguardsavailable to practitioners in summaryproceedings premised on eitherreciprocal discipline for professionalmisconduct or conviction of a seriouscrime. However, consistent with thepractice of state bars, we have limitedthe rebuttable presumption safeguardsso that they apply in reciprocaldiscipline matters only, rather thanextend them to criminal convictionmatters, and amended the ruleaccordingly. Thus, upon filing acertified copy of a court recordevidencing a criminal conviction in asummary proceeding based thereon, theonly issue to be determined shall be thenature of the discipline to be imposed.Under the final rule, absentextraordinary circumstances,practitioners will be prevented fromlaunching collateral attacks on criminalconvictions in a summary proceeding.

Section 3.102—Grounds

General Comments. Severalcommenters suggested that the rules forsanctions are too vague and do notcontain the level of detail, specificity,and explanation provided by theAmerican Bar Association Model Rulesof Professional Conduct (ABA ModelRules). However, others agreed thatsince the rule closely tracks the ABAModel Rules and that those rules areundergoing revision, this Federal ruleshould undergo the same revision. Stillother commenters suggested that EOIRand the Service use the IRS disciplinaryrules as a guide.

Commenters suggested that the rulebe expanded to allow for disciplininglawyers who assist in the unauthorizedpractice of law, e.g., attorneys who signtheir names to forms prepared by non-lawyers without any attorney input oroversight. Some commenters went on tosuggest that the rule should reachbeyond disciplining lawyers only andexpand to discipline visa consultantsand notarios who engage in theunauthorized practice of immigrationlaw, such that any fee collected by anotario would be considered‘‘excessively gross’’ and any application,petition, or brief prepared by a notariowould be considered negligence per se.

Response. As stated in thesupplementary information to theproposed rule, the revised grounds fordisciplinary sanctions include language,wherever possible, that is similar, if notidentical to, the ABA Model Rules.EOIR and the Service gave seriousconsideration to the suggestion that aground for disciplinary sanctions thataddresses the problem of theunauthorized practice of law beincluded in the final rule. The difficultyin addressing this problem involves ajurisdictional issue. The jurisdiction ofthis rule is limited to practitioners, i.e.,attorneys, accredited representatives,and other persons described in 8 CFR292.1(a). It cannot reach to persons whoare not within one of these categories,such as visa consultants or notarios,because the statutory language at 8U.S.C. 1362, which establishes theframework for the attorney disciplineprocess, refers only to counsel‘‘authorized to practice in (removal andappeal) proceedings.’’ However, inresponse to the comments, EOIR and theService have added an additionalground for discipline in the final rulewhich renders a practitioner subject todiscipline if he or she assists a non-practitioner in the performance of anyactivity that constitutes theunauthorized practice of law.

Section 3.102(a)—Grossly ExcessiveFees

Comments. Many commentersexpressed concerns that EOIR and theService would be ‘‘second-guessing theamount of work attorneys dedicate totheir cases or the fees they charge.’’They stated that fees depend on manysubjective factors and further concludedthat only private practitioners have theexperience to know how toappropriately set fees. Othercommenters pointed out that since feesare negotiated with a client up front, theclient has the option to go to a differentattorney if he or she finds that the feesare too high. Some commenters noted

that making a determination of what is‘‘grossly excessive’’ will require probinginto confidential client information,while others inquired as to how muchweight will be given to the differentfactors used in determining what is‘‘grossly excessive.’’ While somecommenters concluded that state barassociations generally do not involvethemselves in financial arrangementsbetween lawyers and clients, otherssuggested that federal regulation isunnecessary because state barassociations can review fee disputes.Still others suggested this was a meansby which EOIR and the Service wouldpunish a practitioner who has beensuccessful in defending an immigrationclient.

Response. It is important to note thatthe primary purpose of this provision isto protect clients, not to interfere withattorney-client fee arrangements. The‘‘grossly excessive fees’’ standard,which exists in the current rule and wasretained in the proposed rule, is higherthan the ‘‘reasonable fees’’ measure setout under the ABA Model Rules. The‘‘grossly excessive’’ standard is similarto the ‘‘unconscionable’’ standard usedby the IRS in its regulations. See 31 CFR10.28.

Unlike the general provision in theexisting regulation, the provision in thefinal rule enumerates factors to beconsidered in determining if a fee isgrossly excessive that are virtuallyidentical to those found in the ABAModel Rules. These factors include: Thetime and labor required, the novelty anddifficulty of the questions involved, andthe skill requisite to perform the legalservice properly; the likelihood, ifapparent to the client, that theacceptance of the particularemployment will preclude otheremployment by the practitioner; the feecustomarily charged in the locality forsimilar legal services; the amountinvolved and the results obtained; thetime limitations imposed by the clientor by the circumstances; the nature andlength of the professional relationshipwith the client; and the experience,reputation, and ability of thepractitioner or practitioners performingthe services. As other jurisdictions havedone, a balancing test may be craftedbased upon the various factors indeciding whether a practitioner hasviolated the rule. These factors willimprove the fair assessment of fees byproviding practitioners with notice ofthe variables to be used in determiningif a fee is grossly excessive. Investigatingallegations of grossly excessive fees mayrequire probing into confidential clientinformation where absolutely necessary,



and then only with the client’spermission.

It is important to note that this rule isnot designed to set fee schedules orarbitrate fee disputes betweenpractitioners and their clients. NeitherEOIR nor the Service intends to engagein ‘‘second-guessing’’ negotiated feearrangements. Expert jurists inimmigration law who command higherfees for their services than otherimmigration practitioners would not bein violation of the regulations basedsolely on their fee. However, we areaware of instances in whichpractitioners have preyed onunsuspecting clients by charging themexorbitant fees for handling relativelyroutine immigration matters, or worseyet, have charged clients for servicesthat were never rendered at all.Protecting clients from practitionerswho charge such grossly excessive feesis the purpose of this provision.

Section 3.102(b)—Bribes

Comment. One commenter suggestedthat expanding the rule to include‘‘attempt to bribe’’ as well as briberywas unnecessary and that proving‘‘attempt to bribe’’ would be difficultand should not be included in the rule.

Response. This basic language is inthe current rule. Moreover, it would beinadvisable to limit this rule to onlythose persons who successfully bribe anindividual, but not include those whoengage in conduct that constitutes anattempt to bribe. The act of attemptedbribery is as serious as the act of briberyitself and certainly compromises theintegrity of the practitioner who engagesin such behavior. Therefore, we did notadopt this suggestion. It should be notedthat the SSA regulations also have asimilar provision which prohibits any‘‘attempt to influence, directly orindirectly, the outcome of a decision,determination or other administrativeaction by offering or granting a loan,gift, entertainment or anything of valueto a presiding official, Agency employeeor witness who is or may reasonably beexpected to be involved in theadministrative decisionmakingprocess.’’ 20 CFR 404.1740(c)(6).

Section 3.102(c)—False Statements andWillful Misrepresentation

Comments. Several commentersstated that this provision is too vagueand that the Department should providemore guidance. Another commentersuggested that a ground for disciplineshould be included to deal withpreparation of documents, pleadings,papers, etc., that are false andmisleading and are prepared by

attorneys who fail to disclose theirnames and addresses as preparers.

Response. The language in thisprovision closely resembles thelanguage in the current regulation,combined with language from ABAModel Rule 3.3. The language in therule would not preclude pursuing apractitioner who prepares false ormisleading unsigned documents,although the ability to prove whoprepared such documents might bedifficult. Immigration Judges across thecountry have indicated that the filing offalse or fraudulent documents is agrowing problem. This problemincludes the submission of once validdocuments that have been altered (e.g.,foreign birth certificates), falsely createddocuments (e.g., visas or letters fromreligious or political groups), and validdocuments that contain falseinformation (e.g., asylum applications).This provision as written is broadenough to deal with these types offraud. It should be noted that the SSAregulations have a similar provisionwhich states that an individual may not‘‘(k)nowingly make or present, orparticipate in the making orpresentation of, false or misleading oralor written statements, assertions, orrepresentations about a material fact orlaw.’’ 20 CFR 404.1740(c)(3).

Section 3.102(d)—SolicitingProfessional Employment

Comment. One commenter suggestedthat the language in the rule concerningsolicitation may conflict with state barsolicitation regulations already in place,creating difficulties for practitionerswho may wish to advertise in more thanone area.

Response. The language in thisprovision closely resembles thelanguage in ABA Model Rule 7.3 and inthe IRS regulations at 31 CFR 10.30.This provision is designed to deal witha growing number of instances that havebeen brought to our attentionconcerning the use of ‘‘runners’’ in andaround the Immigration Courts. Thesepersons are not authorized to practiceimmigration law themselves butapproach potential clients on behalf ofindividuals who are licensedprofessionals. As noted in the Commentto ABA Model Rule 7.3:

There is a potential for abuse inherent indirect in-person or live telephone contact bya lawyer with a prospective client known toneed legal services. These forms of contactbetween lawyer and a prospective clientsubject the layperson to the privateimportuning of the trained advocate in adirect interpersonal encounter. Theprospective client, who may already beoverwhelmed by the circumstances giving

rise to the need for legal services, may findit difficult fully to evaluate all availablealternatives with reasoned judgment andappropriate self-interest in the face of thelawyer’s presence and insistence upon beingretained immediately. The situation isfraught with the possibility of undueinfluence, intimidation, and over-reaching.Model Rules of Professional Conduct Rule7.3 cmt. (1993).

Section 3.102(g)—Contumelious orObnoxious Conduct

Comments. Many commentersregistered their objections to thisprovision. They argued that subjectingpractitioners to discipline based uponthe concept of ‘‘obnoxious behavior’’would result in practitioners beingunable to represent or defend theirclients zealously and would requirethem to be subdued or ‘‘nice’’ in ordernot to offend EOIR or the Service. Asone commenter put it: ‘‘(O)ne person’sobnoxious behavior is another person’szealous representation.’’ Anothercommenter feared that ‘‘(a) practitionercould be disciplined if, in the opinionof the Disciplinary Committee, he talkstoo fast or too slow, uses his hands toomuch when speaking, or has somenervous habit.’’

Still another commenter concludedthat the threat of discipline based onthis ground would impair the attorney/client relationship because practitionerswould be afraid to advocate zealouslyon behalf of their clients for fear thatsuch representation would be perceivedas obnoxious. Some commenterssuggested that it would be impossiblefor EOIR and the Service to apply thisrule in a consistent and fair manner,while others noted that state barsalready deal with ‘‘contumelious’’ or‘‘obnoxious’’ conduct of practitioners.Several commenters concluded thatsuch a disciplinary ground would leadto frivolous complaints and unnecessarylitigation.

Response: Nothing in this provision isintended to impinge upon apractitioner’s zealous representation ofhis or her client. However, even zealousrepresentation does not entitle apractitioner to engage in contumeliousor obnoxious conduct. Any suggestionthat this provision will be used, as onecommenter suggests, if a practitioner‘‘talks too fast or too slow, uses hishands too much when speaking, or hassome nervous habit’’ is without basis.Behavior disciplined under thisprovision will be necessarily extremeand without any acceptable premise.

This provision is in the current ruleand is retained in the final rule. Thisprovision is included primarily toaddress the type of conduct that wouldrise to the level of contempt in a court



of general jurisdiction. IRS regulationscontain a similar provision forcontemptuous conduct. See 31 CFR10.51(i). Until recently, ImmigrationJudges have not had the authority toissue contempt citations for the type ofbehavior described in this provision.The only alternative for a judge was tofile a disciplinary complaint with theService. Immigration Judges wererecently given contempt authority insection 304 of the Illegal ImmigrationReform and Immigrant ResponsibilityAct of 1996, Pub. L. 104–208 (IIRIRA),8 U.S.C. 1229a(b)(1); however, thisauthority will be exercised only after theDepartment issues regulations. It isexpected that the contempt regulations,once published, will provide that apractitioner can be disciplined underthe Professional Conduct Rules whenthe practitioner has been sanctioned forcontemptuous conduct by anImmigration Judge pursuant to 8 U.S.C.1229a(b)(1). A finding of contempt willbecome a prerequisite to the impositionof disciplinary action pursuant to thissubsection. Therefore, the currentlanguage will be retained in the finalrule, pending amendment by thecontempt regulations, which will bepublished in the near future.

Section 3.102(h)—Convictions/CrimesComments. Some commenters found

the definition of ‘‘serious crime’’ to beoverly broad. While some commentersargued that a practitioner might lose hisor her livelihood for committing a minoroffense, others concluded that theconviction that forms the basis fordisciplinary action might have nobearing on the practitioner’s ability topractice immigration law. Severalcommenters found the retroactivityaspect of this provision to be unfair, aswell as the notion that a practitionerwho has filed a timely appeal from acriminal conviction or state disciplinaryfinding would still be subject todiscipline under the rule. Severalcommenters pointed out thatpractitioners in each state will be heldto different standards of conductbecause the definitions of crimes varyfrom state to state.

Response: The definition of ‘‘seriouscrime’’ is taken from the Rules ofDisciplinary Enforcement for the UnitedStates Court of Appeals for the Districtof Columbia. A ‘‘serious crime’’ asdefined in the rule includes ‘‘anyfelony.’’ Any practitioner who has beenconvicted of a felony has seriouslyundermined his professional integrityand reputation and, as a result, hasjeopardized his ability to continue torepresent aliens before the Board, theImmigration Courts, and the Service.

Lesser offenses included within thedefinition of a ‘‘serious crime’’ areoffenses that involve moral turpitude,such as fraud, bribery, extortion, deceit,theft, misappropriation, and falseswearing. A conviction for any of thesecrimes calls into question apractitioner’s ability to perform his orher duties in a manner which upholdsthe integrity of the profession.

Moreover, the magnitude of intereststo be affected by the decisions of EOIRand/or the Service requires that thosewho represent individuals before eitheragency be persons whose qualities aspractitioners will secure proper serviceto their clients and assist in thedischarge of important agency duties.Additionally, there is no requirement inthe authorities or by practice that anincident for which the disciplinaryauthority seeks to bring charges mustrelate to a proceeding or pendingproceedings.

One commenter noted that theregulation requiring a practitioner tonotify EOIR of any conviction for aserious crime is prospective while theactual ground for disciplinary actionbased on a conviction for a seriouscrime may be retroactive. Convictionsfor serious crimes—whether they occurbefore or after the effective date of thefinal rule—call into question apractitioner’s fitness to represent aliens.A rule that would limit the criminalconviction ground to only thosepractitioners convicted after theeffective date of the rule wouldsubstantially hamper the Department’sgoals of protecting the public andpreserving the integrity of immigrationproceedings. Therefore, § 3.102(h),which is consistent with the prior rule,has not been amended because applyingthis section only to convictions thatoccur after the effective date of the rulewould undermine the Department’sgoals.

Several commenters raised a questionwith regard to the practitioner who hasappealed his or her conviction, statingthat such a person should not be subjectto discipline during pendency of anappeal. We agree. Therefore, we haveadded language in §§ 3.103(b) and292.3(c)(2) that prevents imposition offinal discipline arising out of a criminalconviction until direct appeals of theunderlying conviction have beenexhausted. Notwithstanding, we notethat given the grave nature of criminalproceedings and any resultingconviction or plea, a practitioner may besubject to an interim order ofsuspension under the regulationspending the outcome of any suchappeal.

Once again, the primary objective ofthis rule is to protect the public andpreserve the integrity of adjudicativeimmigration processes. Any practitionerwho has been convicted of a seriouscrime should be held accountable forhis or her actions, including loss of theprivilege to practice before the Board,the Immigration Courts, and the Service.

Section 3.102(i)—False Certification of aCopy of a Document

Comment. One commenter suggestedthat the element of intent be added tothe rule.

Response: In response to thiscomment, we have revised this groundby adding the element of intent.

Section 3.102(j)—Frivolous BehaviorComments. Some commenters

expressed concern that, under thisprovision, practitioners might beinhibited from putting forth anunpopular or unorthodox interpretationof the law; an attorney could make alosing argument for ten years before theBoard and then may prevail in theeleventh year. It was suggested that anattorney’s job is to advocate the ‘‘goodpoints’’ of the law as well as tochallenge the ‘‘wrong’’ side of rules anddecisions. Others feared retribution fortaking actions disagreeable to EOIR orthe Service. Several commentersbelieved that the rule should include arequirement that a practitionerzealously represent his or her client.

Response: Sanctions for frivolousbehavior are required in section 545 ofthe Immigration Act of 1990 (8 U.S.C.1230(b)(6)). This provision implementsthe statutory language and haspreviously been included at 8 CFR292.3(a)(15). The language in thisprovision is closely patterned after thelanguage in Rule 11 of the Federal Rulesof Civil Procedure (FRCP). Precautionsare provided to allow for both advocacygrounded in fact or warranted byexisting law or a good faith argument forthe extension, modification, or reversalof existing law or the establishment ofnew law. Whereas the IRS regulationsdefine frivolous as ‘‘patently improper,’’the language in the final rule reflects amore specific set of standards and doesnot interfere with the zealous advocacyof a practitioner.

Section 3.102(k)—Ineffective Assistanceof Counsel.

Comments. One commenter suggestedthat ‘‘[t]here should be a limit of oneyear on the period of time following thealleged fact for a complaint to bebrought.’’ One commenter concludedthat this provision would inhibit thezealous representation of immigrants;



another commenter went so far as toconclude that the fear of disciplinaryaction ‘‘will keep practitioners fromtelling their clients of the mistakes theyhave made and instead of fixing themistakes, they would let them be.’’Another commenter suggested that sucha provision may prevent onepractitioner from filing a motion toreopen based on ineffective assistance ofcounsel because the other practitionercould lose his or her livelihood. Othersconcluded that since the ABA ModelRules do not make malpractice adisciplinary offense, neither should thefinal rule, given that clients alreadyhave the remedy of suing a practitionerfor legal malpractice. Severalcommenters believed that the final rulegoes against the traditional rules ofprofessional conduct, while others feltthat the state bar disciplinary process isadequate.

Response: The comment concerningthe time period within which acomplaint can be filed based on anineffective assistance of counsel claimsuggests that the time period be limitedto one year from the allegedmisconduct, rather than five years asprovided in the rule. However, becausea finding of ineffective assistance ofcounsel must be made by the Board orthe Immigration Court before such acomplaint would be considered, andsince many cases take longer than oneyear to adjudicate fully, a longer periodof time is required in order to protectthe complaining alien. Also, a shorterperiod of time might unfairly discourageor prevent an alien from bringing acomplaint against his or her formerattorney or accredited representative.However, in order to strike a balance onthis point, the Department has amendedthe rule to require that a complaintbased on this ground be filed within oneyear of the finding of ineffectiveassistance of counsel made by the Boardor the Immigration Court.

It is worrisome to believe that apractitioner would risk a client’s case,and possibly his client’s ability toremain in this country, and not resolvea potential problem by choosing insteadto remain idle in order to protecthimself from an ineffective assistance ofcounsel claim that would survive onlyif due process had been denied as aresult of the practitioner’s conduct, i.e.,where the proceeding was sofundamentally unfair that the alien wasprevented from reasonably presentinghis case. See Matter of Lozada, 19 I&NDec. 637, 638 (1988); see also Ramirez-Durazo v. INS, 794 F.2d 491, 499–500(9th Cir. 1986). Also, one must showthat he was prejudiced by hisrepresentative’s performance. See

Mohsseni Behbahani v. INS, 796 F.2d249, 251 (9th Cir. 1986).

Therefore, it is unlikely that apractitioner who has ‘‘made a mistake’’in a client’s case would allow such amistake to languish when he could stillresolve the problem without prejudiceto the client and, in all probability, nolonger be subject to an ineffectiveassistance of counsel claim. As ismentioned throughout thesupplementary information in theproposed rule, these regulations areintended to preserve the fairness andintegrity of the adjudicative process,secure proper service to aliens subject toproceedings before the ImmigrationCourts and the Service, and ensureminimal qualification standards forpractitioners.

Regarding the commenter whosuggested that malpractice claimsshould suffice as a remedy, it iscertainly true that a client may sue apractitioner for malpractice in suchinstances. However, speculation aboutthe availability of such a legal remedyshould not preclude EOIR or the Servicefrom pursuing disciplinary action.While malpractice lawsuits may resultin monetary compensation for aparticular client, they do little to protectother clients from the same fate.

Section 3.102(l)—Repeated Failure ToAppear for Scheduled Hearings in aTimely Manner

Comment. One commenter felt thephrase ‘‘repeatedly fails to appear’’ wastoo vague.

Response: This provision does notdefine the number of occasions that willamount to ‘‘repeated’’ failures to appear.Such a definition is not included in therule because choosing an arbitrarynumber would hamper the ability toutilize prosecutorial discretion whenconsidering a practitioner’s explanationfor his or her absences. In 1998, theSocial Security Administrationpublished a final rule entitled‘‘Standards of Conduct for ClaimantRepresentatives,’’ see 63 FR 41404(1998), which includes a provisionsimilar to the provision in the proposedrule regarding repeated absences fromscheduled hearings. It notes that ‘‘suchconduct adversely affects claimants,diminishes the ability of the Agency tooperate efficiently and harms otherapplicants by disrupting schedules andwork flow.’’ Id. at 41406. For the samereasons, EOIR and the Service haveadded a similar provision in the rule,with the addition of a ‘‘good cause’’element.

Section 3.102(m)—Assisting in theUnauthorized Practice of Law

Comment. Several commenterssuggested that this rule address theunauthorized practice of law issue. SeeGeneral Comments above.

Response. In response to thecomments, EOIR and the Service haveadded an additional ground fordiscipline in the final rule whichrenders a practitioner subject todiscipline if he or she assists a non-practitioner in the performance of anyactivity that constitutes theunauthorized practice of law. Thisground is a necessary addition to therule in order to protect the public fromthe mistakes of untrained andunqualified individuals, as well as theschemes of unscrupulous immigrationpractitioners, and reflects the concernsof 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 ofcommenters were concerned that thedisciplinary process may be used tointimidate, retaliate, or otherwise harasspractitioners who are successful inadvocating against the government inimmigration proceedings. Onecommenter suggested that this rulemight be used to ‘‘intimidate andcontrol any lawyer who might be sobold as to file a motion to recuse a judge(or) seek to enter an objection upon therecord.’’ The fact that the Departmentcomponents (EOIR and the Service)investigate disciplinary cases and issueNotices of Intent to Discipline promptedsome commenters to raise due processand conflict of interest issues. Onecommenter suggested that in order to‘‘move cases along,’’ Immigration Judgeswill resort to the disciplinary processand effectively chill aggressiverepresentation. Another commenterconcluded that this rule is a way forEOIR to ensure that ‘‘as many non-citizens as possible be deported bytaking the lawyers out of the equation.’’

One commenter suggested that theNotice of Intent to Discipline be servedby personal service and that thepractitioner should be notified of anycomplaint and be given an opportunityto respond before any chargingdocument is issued. Severalcommenters wanted to see thegovernment hire an independent entityto investigate complaints lodged againstprivate practitioners by governmentemployees; others felt that the



government should hire separatecounsel to conduct independentinvestigations.

Response: Most, if not all, of thecommenters failed to recognize that thecurrent disciplinary system is structuredso that the Service (the prosecutingparty in an adversarial immigrationproceeding) is the party bringing thedisciplinary action before EOIR (theadjudicating body). This structure hasled to revisions in this rule which, inmany cases, transfers responsibility forissuing charging documents from theService to EOIR. The only cases inwhich the Service still retainsresponsibility for issuing chargingdocuments concern situations where theService serves as the adjudicating body(i.e., adjustment of status cases, asylumcases, and some visa petition cases,among others, but not in matters beforean Immigration Judge or the Board).This transition of the disciplinarysystem from the Service to EOIR is beingmade specifically to eliminate theappearance of any bias or conflict ofinterest. The Office of the GeneralCounsel of EOIR or the Office of theGeneral Counsel of the Service, notImmigration Judges or Service trialattorneys, is responsible for conductingpreliminary inquiries and issuingcharging documents. While thecomments reflect some practitioners’reluctance to be regulated, there issimply no basis for the conclusion thatthis disciplinary process is biasedagainst practitioners.

The primary purpose of this rule is toprotect vulnerable aliens fromunscrupulous immigration practitionersand from those who have engaged inconduct that raises questions about theirfitness to practice law. Rather thandemonstrating an overabundance ofzeal, some practitioners fail to representtheir clients at all. Numerouscomplaints have been reported aboutpractitioners who fail to appear or to fileessential documents or evidence onbehalf of their clients. The Boardadjudicates numerous motions toreopen filed before it based on suchclaims of ineffective assistance ofcounsel. The rule will provide aneffective means to address the mountinginstances of practitioners’ failure torepresent their clients. Manyimmigration practitioners have had theexperience of trying to salvage the caseof a client who was harmed by aprevious representative’s inaction. Oftena state bar does not have the expertiseto evaluate or prosecute such cases ofmisconduct. The disciplinary rules willprovide an effective means to addresssuch problems.

Concerning the request that thepractitioner be notified of anycomplaints lodged against him or her,the preliminary inquiry will, in mostcases, afford the practitioner anopportunity to discuss the complaintwith an investigator. However, if acomplaint is clearly frivolous or withoutmerit, it is possible that the practitionermay not be contacted if it is determinedthat no action will be taken against himor her. Additionally, during thepreliminary inquiry phase of adisciplinary proceeding, EOIR and thepractitioner may reach a resolution orsettlement prior to the issuance of aNotice of Intent to Discipline. Once thepreliminary inquiry is completed, and ifno such resolution has been reached, aNotice of Intent to Discipline will thenbe issued. It should be noted that theNotice of Intent to Discipline will beserved by personal service, as defined in8 CFR 103.5a.

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

Comments. One commenter statedthat 15 days is an insufficient timeperiod in which to file a motion to setaside an order of default for failure tofile an answer or for failure to appear ata disciplinary hearing. Somecommenters thought that a practitionershould be allowed to file motions at anytime after an order is issued, or at leastwithin 180 days of issuance. Onecommenter thought that the provisionthat requires a practitioner to prove anegative (i.e., failure to appear due toexceptional circumstances) is unfairwhen the burden of proof is placed onthe practitioner.

Response: It should be noted thatsection 6103 of the California Rules ofProfessional Conduct provides that ifthe accused does not appear at the timeappointed to answer the accusationwithout sufficient cause, ‘‘the court mayproceed and determine the accusationin his absence.’’ Moreover, IRSdisciplinary regulations provide that anattorney’s ‘‘(f)ailure to file an answerwithin the time prescribed. * * * shallconstitute an admission of theallegations of the complaint and awaiver of hearing, and the Examinermay make his decision by defaultwithout a hearing or further procedure.’’31 CFR 10.58(c). Furthermore, it iscommon practice in state bardisciplinary proceedings to allow bothfor default and expedited time frameswhen an attorney fails to file an answeror fails to appear before a disciplinaryhearing panel. In response to thesuggestions that the time period beexpanded for the filing of motions to setaside, EOIR and the Service balanced

the practitioner’s due process rightsagainst the primary goals of thisregulation, including the protection ofthe public, and concluded that the timeperiod set forth in the final rule is fair.

Section 3.106(c)—Review ProcessComments. Most commenters

complained that the rule provides noopportunity for the practitioner topresent a written or oral argument to theDisciplinary Committee. The remainingcommenters complained that there is noappeal from the decision of theDisciplinary Committee.

Response: As stated above, theproposed Disciplinary Committee hasbeen replaced by the Board in allrespects regarding this rule. All of theestablished appeal procedures inimmigration cases, including thesubmission of written briefs andrequests for oral arguments, now applyalso to disciplinary cases on appeal tothe Board. A practitioner who wishes toobtain judicial review of the Board’sdecision can do so in Federal districtcourt pursuant to28 U.S.C.1331.

Sections 3.106(d) and 292.3(g)—Referralto State Bars

Comment. One commenter suggestedthat the rule be amended to require allorders of public discipline to bereported to the ABA National LawyerRegulatory Data Bank and to alljurisdictions in which the disciplinedattorney is admitted.

Response: We have incorporated intothe final rule a provision for referrals ofpublic discipline to the ABA NationalLawyer Regulatory Data Bank and toevery jurisdiction in which thedisciplined attorney is admitted.

Section 3.107—ReinstatementComments. One commenter believed

that the requirement that a ‘‘practitionerhas the burden of proving that he or shepossesses the moral and professionalqualifications to be reinstated by clear,convincing, and unequivocal evidence’’is too ambiguous and does not protectthe public. Another commenterconcluded that it is too difficult toquantify moral qualifications, whileanother suggested that the rule shouldprovide for a hearing during which thepractitioner must show that he or she isrehabilitated and no longer poses a riskto the public, the Board, theImmigration Courts, and the Service.

Response: The language in thisprovision is taken directly from theRules of Disciplinary Enforcement forthe United States Court of Appeals forthe District of Columbia Circuit.However, we have adopted thesuggestion on providing a reinstatement



hearing by amending the rule to give theBoard discretion to hold a hearing if thepractitioner meets all of thereinstatement requirements.

Section 3.108—ConfidentialityComments. There were some

generalized concerns that theseprovisions do not sufficiently protect apractitioner’s privacy, especially withregard to disclosures made to lawenforcement authorities, complainants,and witnesses.

Response: These provisions arepatterned after the Rules of Procedure ofthe State Bar of California. Thepresumption in the provisions is one ofconfidentiality, not disclosure.Exceptions to confidentiality are basedon ‘‘protection of the public when thenecessity for disclosing informationoutweighs the necessity for preservingconfidentiality,’’ and include, but arenot limited to, limited disclosuresnecessary to conduct preliminaryinquiries.

Sections 3.109 and 292.3—Discipline ofGovernment Attorneys/ImmigrationJudges

Comments. Many commentersexpressed their concern that theproposed rule applies only to privateimmigration practitioners and not toImmigration Judges and/or Service trialattorneys. Since Immigration Judges andService trial attorneys are subject to thedisciplinary system which is overseenby the Department’s Office ofProfessional Responsibility (OPR), asystem which regulates all Departmentattorneys, many commenters stated thathaving two different systems is unfairand suggested this was a denial of EqualProtection. Still other commentersconcluded that the rule will hamperlegal advocacy and that the ‘‘majorpurpose of the rule is to intimidateprivate attorneys out of practice’’ and‘‘to deny aliens their statutory right torepresentation.’’

Response: Congress has broadlyempowered the Attorney Generalpursuant to 8 U.S.C. 1103, to ‘‘establishsuch regulations * * * and performsuch other acts as she deems necessaryfor carrying out her authority’’ under theprovisions of the Immigration andNationality Act. Congress delegated itsplenary power over immigration mattersin order to advance, among otherpurposes, the public interest in decidingwhether to admit or exclude aliens.

Consistent with Congress’s sweepinggrant of authority to the AttorneyGeneral in immigration matters, ‘‘in anyremoval proceedings before animmigration judge and in any appealproceedings before the Attorney General

from such removal proceedings, theperson concerned shall have theprivilege of being represented * * * bysuch counsel, authorized to practice insuch proceedings, as he shall choose’’(emphasis added). 8 U.S.C. 1362. Suchstatutory authority, which serves as aprimary basis for this disciplinaryregulation, refers exclusively to counselfor individuals subject to suchproceedings, not to Immigration Judgesor attorneys for the government.

The Supreme Court has held that‘‘where the empowering provision of astatute states simply that the agencymay ‘make * * * such rules andregulations as may be necessary to carryout the provisions of (an) act,’ * * * thevalidity of a regulation promulgatedthereunder will be sustained so long asit is ‘reasonably related to the purposesof the enabling legislation.’ ’’ Thorpe v.Housing Authority of the City ofDurham, 393 U.S. 268, 280–81 (1969).The general authority upon which werely herein to impose disciplinarysanctions properly gives heed toCongress’ enabling language and publicinterest purposes. Moreover, we viewthe need to safeguard adjudicativeprocesses, fairly decide cases, andprotect the public throughimplementation of this disciplinaryregulation as consonant with Congress’spublic interest intent. Contrary to theassertion that such regulations willhamper counsel in rendering legalassistance to aliens, we believe thatthese rules will strengthen theeffectiveness of representation andprovide fairer adjudications.

As one court stated in reference to theforegoing express grants of authorityfrom Congress, ‘‘an agency empoweredto prescribe its own rules has theimplied power to determine who canpractice before it.’’ Koden v. UnitedStates Dep’t of Justice, 564 F.2d 228, 234(7th Cir. 1977). In that case, the SeventhCircuit held that the authority bestowedon the Attorney General is more thanadequate to empower, expressly orimpliedly, an agency to set disciplinarystandards applicable to representatives.The Koden court upheld a disciplinaryregulation substantially similar to thisone that had existed for over 25 years(at the time of the court’s decision) andapplied only to private immigrationpractitioners.

Additionally, since 1975, OPR hashad responsibility for investigatingallegations of misconduct against any ofthe Department’s lawyers, which todaynumber over 9,000 individuals,including Immigration Judges andService trial attorneys, where suchallegations relate to the exercise of theirauthority to investigate, litigate,

adjudicate, or provide legal services. See28 CFR 0.39. Such employees are alsosubject to the jurisdiction of theDepartment’s Office of InspectorGeneral. Among other rules, regulations,and orders, Department attorneys mustabide by the standards of conductapplicable to executive branchemployees and the Department’ssupplemental standards of conduct. See5 CFR part 2635 et seq.; 5 CFR part 3801et seq.

Such comprehensive standards andprocedures, under the auspices of OPRand the Office of Inspector General, areequally, if not more, rigorous than thoseprovided in this rule. They provideseparate means for seeking discipline ofImmigration Judges and Departmentattorneys.

It should also be noted that onOctober 21, 1998, Congress amendedChapter 31 of Title 28 of the UnitedStates Code by adding section 530B inPublic Law 105–277. This amendment,which went into effect on April 19,1999, subjects Department attorneys tostate laws and rules, and local federalcourt rules, governing attorneys in eachstate where such attorneys engage intheir duties, to the same extent and inthe same manner as other attorneys inthat state. See 64 FR 19273 (1999)(Interim Rule on Ethical Standards forAttorneys for the Government).

DefinitionsComment. One commenter pointed

out that the rule uses the term‘‘practitioner’’ whereas the current ruleuses the terms ‘‘attorney’’ and‘‘representative.’’

Response: Use of the new term‘‘practitioner’’ in the proposed rule issimply for convenience when referringto both attorneys, as defined in 8 CFR1.1(f), and representatives, as defined in8 CFR 1.1(j).

Disciplinary System Involving BothEOIR and INS

Comments. Many commentersexpressed concerns over the twoparallel proceedings outlined in theproposed rule. They felt that thejurisdiction between EOIR and theService is unclear, that the two systemsare not necessary, that practitioners willhave to be familiar with the professionalconduct requirements of two agencies,and that two separate complaints couldresult in two punishments. Anothercommenter thought that the Board andImmigration Judges already have‘‘plenary power to sanction attorneys.’’

Response: Some commenters havecharacterized this rule as two paralleldisciplinary systems with the potentialfor two disciplinary actions for the same



misconduct. This notion is incorrect;only one disciplinary system exists andthe delineations of authority are clearunder the regulation. If a complaintconcerns a practitioner’s conduct beforethe Service in its adjudicative capacity(i.e., adjustment of status cases, asylumcases, visa petition cases), then thecomplaint should be filed with theService, which will conduct apreliminary inquiry. If, however, thebasis of the complaint concerns apractitioner’s conduct before EOIR (i.e.,the Board or the Immigration Courts),then the complaint should be filed withEOIR, which will conduct a preliminaryinquiry. EOIR’s jurisdiction toinvestigate and prosecute disciplinarycases will not extend to cases overwhich the Service has adjudicatoryauthority and, likewise, the Service’sjurisdiction to investigate and prosecutedisciplinary cases will not extend tocases over which EOIR has adjudicatoryauthority.

Between EOIR and the Service, thereremains an expectation of cooperationand communication in instances whereit is unclear which agency should takeresponsibility for investigating acomplaint, i.e., if a complaint allegesmisconduct that occurred before bothagencies. Each agency is required toserve a copy of a Notice of Intent toDiscipline on the other agency.Moreover, each agency may submit awritten request to the adjudicatingofficial asking that any disciplineimposed upon a practitioner thatrestricts his or her authority to practicebefore one agency also apply to his orher authority to practice before the otheragency. This will avoid the situation inwhich a practitioner could be forced togo through two separate disciplinaryhearings for the same misconduct. Italso gives the adjudicating official thediscretion to prohibit a practitioner fromcontinuing to practice before one agencypending suspension or exclusion fromthe other. Without this provision, forexample, a practitioner who appearsbefore EOIR and who has beensuspended for assisting others in theunauthorized practice of law couldcontinue to practice before the Serviceunless and until the Service conductedits own separate proceeding.

Contrary to one commenter’ssuggestion, the Board and ImmigrationJudges do not have ‘‘plenary power tosanction attorneys.’’ Until the contemptrule is final (see discussion above), therevised set of grounds as set forth in thisdisciplinary regulation is the onlymeans by which the Board andImmigration Judges may seek to remedyrelated professional misconduct.

Procedures

Comments. Some commenters feltthat there should be a right to discoverywhile others felt that the Federal Rulesof Evidence (FRE) and/or the FederalRules of Civil Procedure (FRCP) shouldbe used in disciplinary proceedings.One commenter asked under whatcircumstances costs would be assessedto the practitioner. Another commenterrequested that hearings be held in thepractitioner’s city of practice and that ahearing should be set automatically,regardless of whether a hearing has beenrequested or the practitioner has failedto file an answer to the Notice of Intentto Discipline. One commenter suggestedthat the hearing should be closed to thepublic. Others suggested that the 30-daytime period to file an answer beextended to 60 days. Some commenterswould like to see the DisciplinaryCommittee establish rules of procedure.Other commenters opined that thecomplaining party must have standingto bring a complaint, e.g., thecomplainant must be an ‘‘aggrievedparty’’ who can show harm or damage.One commenter questioned howongoing cases would be handled underthe new rule.

Response: Disciplinary proceedingsare designed to be conducted under thesame procedures which governdeportation and removal hearings inImmigration Courts, practices which arefamiliar to both adjudicating officialsand practitioners. The proposed rulerequired the Director of EOIR not onlyto appoint the adjudicating official, butalso to designate the time and place ofthe hearing. After further review,however, this provision has beenamended in several respects.

First, the final rule now gives theChief Immigration Judge the authority toappoint an Immigration Judge as theadjudicating official. At the request ofthe Chief Immigration Judge or in theinterest of efficiency, however, theDirector of EOIR may appoint anAdministrative Law Judge as anadjudicating official. Second, theadjudicating official will designate thetime and place of the hearing. Thisamendment was added to give theadjudicating official more control overthe scheduling of the hearing. Third, therule has been amended to require theadjudicating official to designate theplace of the hearing ‘‘with due regard tothe location of the practitioner’s practiceor residence, the convenience ofwitnesses, and any other relevantfactors.’’ Although it is most likely thatthe adjudicating official will select a sitefor the hearing which is convenient forthe practitioner, this amendment does

not require that such a selection bemade since there may be otherimportant factors which might dictatethat another site is preferable. Forexample, it is reasonable to predict thatdisciplinary proceedings will mostlikely be held in one of EOIR’sImmigration Courts, where suchhearings are presently held, so thatproper administrative support, such asclerks and interpreters, are available.Selection of such a hearing site mightrequire the practitioner to travel to thatlocation.

Finally, the final rule has eliminatedthe terms ‘‘Assistant Chief ImmigrationJudge’’ and ‘‘Board Member’’ as personswho may be appointed as adjudicatingofficials. The term ‘‘Assistant ChiefImmigration Judge’’ was deleted becauseit was determined to be unnecessary,since the term ‘‘Immigration Judge’’ isdeemed to include ‘‘Assistant ChiefImmigration Judge.’’ The term ‘‘BoardMember’’ was deleted since, under thefinal rule, the Board is now theappellate reviewing body fordisciplinary appeals, therebyeliminating the possibility that BoardMembers could be appointed asadjudicating officials.

The rule requires the practitioner torequest a hearing if he or she so desires,but does not make such a hearingmandatory. There may be reasons whya practitioner may not want a hearing,e.g., the practitioner intends to settle thecase, does not want publicity, or doesnot wish to expend the time and moneynecessary to prepare for a hearing. Togive the practitioner the option ofhaving a hearing gives him or her morecontrol over the progression of the case.Further, the rule does not allow for ahearing for a practitioner who fails tofile an answer to a Notice of Intent toDiscipline.

One commenter suggested that allhearings be closed. However, theprevailing procedure among state barsmandates that disciplinary hearings beopen to the public once a chargingdocument has been filed. The public hasa right to know what transpires in suchcases, and the notion of conductingdisciplinary hearings behind closeddoors may foster ignorance and raisedoubts as to the nature of theproceedings. It should be noted thatthere are two exceptions in the rule toa public hearing. These includelimitations of the physical facilities and/or the need to protect witnesses, parties,or the public interest.

Another commenter suggested thetime period to file an answer should beextended from 30 to 60 days. In orderfor disciplinary actions to be mosteffective, it is imperative that cases be



resolved in a timely manner. To providea practitioner with 30 days to file ananswer is reasonable.

Another commenter stated that acomplaining party must have standingand must be an ‘‘aggrieved party’’ whocan show harm or damage. However,there is no reason to limit the ability ofanyone to file a complaint. The degreeto which a complainant has beenharmed will go to the merits of the caseitself, but should not preclude anindividual from filing a complaint.Moreover, it is anticipated thatcomplaints may come fromadjudicators, Service personnel, aliens,or practitioners themselves, all of whommay have first-hand knowledge ofpractitioner misconduct.

One commenter questioned whencosts might be assessed against thepractitioner. Assessment of costs is notavailable in Immigration Court or at theBoard, and benefits such as the use ofinterpreters have not previously beencharged against a party. In an effort tokeep disciplinary proceedingsprocedurally similar to ImmigrationCourt practice, the agency has decidednot to assess costs in disciplinaryproceedings. Therefore, the provisionconcerning costs has been deleted in thefinal rule.

With regard to ongoing cases in whicha charging document has been issuedand filed with the Office of the ChiefImmigration Judge prior to the effectivedate of these regulations, such matterswill proceed to a final disposition underthe previous regulations.

State Bars Are Appropriate Entities ToHandle Complaints

Comments. Many commenters saidthat it is inappropriate for federalagencies to unilaterally impose anational disciplinary scheme wherestates should have sole jurisdiction and,further, that federal regulationsconcerning discipline will causeconfusion and uncertainty with regardto state rules. Others objected that therule subjects practitioners to beingdisciplined twice for the sameconduct—once by the federalgovernment and once by the state bar.Others believed that this rule is anunnecessary and impermissibleintrusion into the state law licensureprocess and ‘‘to bar a lawyer frompractice before an agency is unheardof.’’

Response: In response to thecomments that claim that this regulationis an ‘‘impermissible intrusion into thestate law licensure process’’ and that itis ‘‘inappropriate for federal agencies tounilaterally impose a nationaldisciplinary scheme where states should

have sole jurisdiction,’’ we refercommenters to the U.S. Supreme Courtdecision in Sperry v. Florida, 373 U.S.379 (1963). In that case, the state ofFlorida sought to enjoin a non-attorneyregistered to practice before the UnitedStates Patent Office from preparing andprosecuting patent applications inFlorida because he was not a member ofthe Florida Bar. The Supreme Courtheld that the federal government haspreemptive powers over states’legislative and judicial authorities whenacting under valid federal regulations.As noted above in the supplementaryinformation, EOIR and the Servicemaintain that under the broadrulemaking authority of the AttorneyGeneral and the federal government’spreemptive powers, EOIR and theService have the authority (and indeed,have had the authority since theseregulations were first adopted more than45 years ago) to promulgate disciplinaryregulations on a nationwide basisgoverning the privilege of appearing asan attorney or representative before theBoard, the Immigration Courts, and theService.

The commenters also claim that thisregulation is unnecessary in light of the51 state bar disciplinary agencies(including the District of Columbia)which regulate attorney conduct. TheAmerican Bar Association (ABA)suggested that EOIR and the Serviceestablish a system by which complaintsabout attorneys alleged to have engagedin misconduct be referred to statedisciplinary authorities, and by whichsuch disciplinary authorities thenwould notify the agencies aboutsanctioned lawyers. Since the ABAsubmitted almost identical commentsregarding the EOIR/Service rule and theSocial Security Administration’s (SSA’s)recently published rule on itsdisciplinary system (see 63 FR 41404(1998)), it appears that the organizationis expressing its general objection tofederal oversight of the professionalconduct of those who appear beforefederal agencies.

In response to such comments, itshould be noted that immigrationhearings are held in approximately 50Immigration Courts located in 23different states and territories.Moreover, attorneys often representaliens in jurisdictions other than thosein which they are licensed to practicelaw. It is imperative that EOIR and theService administer a uniformdisciplinary system among therespective Immigration Courts. For thereasons explained in SSA’ssupplementary information to theirdisciplinary rule, EOIR and the Serviceshould not be expected or required to

apply numerous local rules, or localinterpretations of the rules, to problemsthat require national uniformity.Applying local rules or localinterpretations in lieu of a nationalstandard would leave immigrationattorneys in one state subject todiscipline, while possibly exemptingimmigration attorneys in another state.EOIR and the Service do not believe thatit would benefit the Board, theImmigration Courts, the Service, thepublic, or attorneys to promoteinconsistency in regulating the conductof practitioners, who all practice beforethe same forum.

Similar to the SSA program, practicebefore EOIR and the Service is notlimited to attorneys, but includes non-attorneys who may not be subject tostate bar rules. EOIR and the Servicebelieve that all practitioners, attorneysand non-attorneys alike, must be held touniform standards of professionalconduct in immigration proceedings.Without this regulation, non-attorneysmay not be accountable to anydisciplinary authority.

EOIR and the Service anticipateworking closely with the various statebars when investigating disciplinarycomplaints. Referrals to state bars maybe appropriate when a complaint doesnot allege a violation of the federalregulations but may allege a violation ofstate bar rules or regulations.Cooperation between the federalgovernment and the 51 state bardisciplinary authorities will optimizeresources and minimize duplication ofinvestigations. In general, state barshave not been resistant to the Federalgovernment’s efforts to assist inprotecting the public by scrutinizing theprofessional conduct of attorneys.Moreover, immigration law is a verycomplex area and this program mayassist state bars with investigatingallegations of misconduct againstimmigration attorneys.

After publication of the proposedrule, the vast majority of commentswere from attorneys who opposed theidea of any Federal governmentregulations of professional conduct.However, as we have tried to emphasizein this final rule, the Department’simperatives, including preserving theintegrity of the Board, the ImmigrationCourts, and the Service, ensuring theimportant and proper discharge ofstatutory duties under the immigrationlaws of the United States, andsafeguarding a vulnerable clientpopulation, support continuing andimproving the reasonable and fairregulation of such conduct.

One comment in particularexemplified the peril of susceptible



clients, and was submitted byimmigrant twin brothers who are lawstudents. After fleeing the formerYugoslavia, they arrived in the UnitedStates with the hope of starting a newlife. They feared for their lives in theircountry and applied for political asylumso they would not have to return to theircountry to face persecution and possiblydeath. They retained an immigrationattorney to help them file the necessaryapplications. After appearing before anImmigration Judge, the brothers weregiven a deadline to file their asylumapplications with the court, and ahearing date was set. The attorneyassured the brothers that theapplications had been filed before thedeadline and that they did not need toshow up for any further hearings beforethe Immigration Judge.

During the ensuing months, theattorney continued to pressure thebrothers for additional legal fees, tellingthem he needed to file more paperwork.He told them to expect to receive theirpermanent resident cards in the mail.After numerous attempts to contact theattorney over the next several years, thebrothers finally went to the ImmigrationCourt to find out the status of their case.Much to their surprise, they learned thattheir case had been dismissed after theImmigration Judge and the Boardconsidered their requests for asylum tobe abandoned when no applications hadbeen submitted by the deadline. Thebrothers then contacted their attorneywho told them that he had neverreceived anything from the ImmigrationCourt or the Service.

Eventually, they hired a new attorneywho helped them correct the mistakes ofthe former attorney by filing a motion toreopen based on ineffective assistance ofcounsel. The brothers wrote: ‘‘Theimmigration problem which faces thisgreat nation of ours is caused by manyof the immigration attorneys whomisrepresent their clients who often donot speak (the) English language and donot understand immigration law. * * *The proposed rule is a rule which needsto be used in practice. It needs to beenacted in order to deter the misconductof attorneys who practice immigrationlaw. These attorneys like our formerattorney are taking advantage of themost vulnerable group of people in oursociety. Your office would serve a greatdeal in this process by properlyinvestigating, and determining whichcomplaints have merit. * * * This rulemakes good on a pledge by the AttorneyGeneral to deter the bad conduct ofimmigration attorneys. Hopefully, thisletter will inform you that (the) rule isneeded and wanted by not only

immigrants like us but also future legalprofessionals.’’

Regulatory Flexibility Act

In accordance with 5 U.S.C. 605(b),the Attorney General certifies that thisrule affects only those practitioners whopractice immigration law before EOIRand the Service. Approximately 5000immigration and 400 accreditedrepresentatives will be subject to thisrule. This rule will not have asignificant adverse economic impact ona substantial number of small entitiesbecause the rule is similar in substanceto the existing regulatory process andwill affect only those practitioners whohave committed serious crimes or whohave lost their license to practice law orotherwise engaged in professionalmisconduct. Therefore, this rule doesnot have a significant economic impacton a substantial number of smallentities.

Unfunded Mandates Reform Act of 1995

This rule will not result in theexpenditure by State, local, and tribalgovernments, in the aggregate, or by theprivate sector, of $100 million or morein any one year, and it will notsignificantly or uniquely affect smallgovernments. Therefore, no actions weredeemed necessary under the provisionsof the Unfunded Mandates Reform Actof 1995.

Small Business Regulatory EnforcementFairness Act of 1996

This rule is not a major rule asdefined by section 804 of the SmallBusiness Regulatory Enforcement Act of1996. This rule will not result in anannual effect on the economy of $100million or more; a major increase incosts or prices, or significant adverseeffects on competition, employment,investment, productivity, innovation, oron the ability of United States-basedcompanies to compete with foreign-based companies in domestic andexport markets.

Executive Order 12866

This regulation has been drafted andreviewed in accordance with ExecutiveOrder 12866, ‘‘Regulatory Planning andReview’’, section 1(b), Principles ofRegulation. The Department of Justicehas determined that this rule is not a‘‘significant regulatory action’’ underExecutive Order 12866, section 3(f), andaccordingly this rule has not beenreviewed by the Office of Managementand Budget.

Executive Order 12612

This regulation will not havesubstantial direct effects on the States,

on the relationship between the nationalgovernment and the States, or on thedistribution of power andresponsibilities among the variouslevels of government. Therefore, inaccordance with Executive Order 12612,it is determined that this rule does nothave sufficient federalism implicationsto warrant the preparation of aFederalism Assessment.

Executive Order 12988—Civil JusticeReform

This regulation meets the applicablestandards set forth in sections 3(a) and3(b)(2) of Executive Order 12988.

Plain Language Instructions

We try to write clearly. If you cansuggest how to improve the clarity ofthese regulations, call or write CharlesAdkins-Blanch, Acting General Counsel,Executive Office for ImmigrationReview, 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 andrecordkeeping requirements.

8 CFR Part 292

Administrative practice andprocedures, Immigration, Reporting andrecordkeeping requirements.

For the reasons set forth in thepreamble, parts 3 and 292 of title 8 ofthe Code of Federal Regulations areamended as follows:

PART 3—EXECUTIVE OFFICE FORIMMIGRATION REVIEW

1. The authority citation for Part 3continues 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; section203 of Pub L. 105–100.

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

§ 3.1 [Amended]

* * * * *(b) * * *(13) Decisions of adjudicating officials

in practitioner disciplinary proceedingsas provided in subpart G of this part.* * * * *

(d) * * *(3) Rules of practice. The Board shall

have authority, with the approval of the



Director, EOIR, to prescribe rulesgoverning proceedings before it. It shallalso determine whether anyorganization and/or individual desiringto represent aliens in immigrationproceedings meets the requirements asset forth in § 292.2 of this chapter.

3–4. Section 3.1(d)(1–a)(ii) isamended by revising the reference to‘‘§ 292.3(a)(15) of this chapter’’ in thefirst sentence to read ‘‘§ 3.102(j).’’

§ 3.12 [Amended]

5. Section 3.12 is amended by revisingthe reference to ‘‘§ 292.3 of this chapter’’in the second sentence to read ‘‘this part3.’’

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 forPractitioners—Rules and Procedures

Sec.3.101 General provisions.3.102 Grounds.3.103 Immediate suspension and summary

disciplinary proceedings; duty ofpractitioner to notify EOIR of correctionor discipline.

3.104 Filing of complaints; preliminaryinquiries; resolutions; referral ofcomplaints.

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 forPractitioners—Rules and Procedures

§ 3.101 General provisions.(a) Authority to sanction. An

adjudicating official or the Board ofImmigration Appeals (the Board) mayimpose disciplinary sanctions againstany practitioner if it finds it to be in thepublic interest to do so. It will be in thepublic interest to impose disciplinarysanctions against a practitioner who isauthorized to practice before the Boardand the Immigration Courts when suchperson has engaged in criminal,unethical, or unprofessional conduct, orin frivolous behavior, as set forth in§ 3.102. In accordance with thedisciplinary proceedings set forth in thissubpart and outlined below, anadjudicating official or the Board mayimpose any of the following disciplinarysanctions:

(1) Expulsion, which is permanent,from practice before the Board and theImmigration Courts or the Immigrationand Naturalization Service (the Service),or before all three authorities;

(2) Suspension, including immediatesuspension, from practice before theBoard and the Immigration Courts or theService, or before all three authorities;

(3) Public or private censure; or(4) Such other disciplinary sanctions

as the adjudicating official or the Boarddeems appropriate.

(b) Persons subject to sanctions.Persons subject to sanctions include anypractitioner. A practitioner is anyattorney as defined in § 1.1(f) of thischapter who does not represent thefederal government, or anyrepresentative as defined in § 1.1(j) ofthis chapter. Attorneys employed by theDepartment of Justice shall be subject todiscipline pursuant to § 3.109. Nothingin this regulation shall be construed asauthorizing persons who do not meetthe definition of practitioner torepresent individuals before the Boardand the Immigration Courts or theService.

§ 3.102 Grounds.

It is deemed to be in the publicinterest for an adjudicating official orthe Board to impose disciplinarysanctions against any practitioner whofalls within one or more of thecategories enumerated in this section,but these categories do not constitutethe exclusive grounds for whichdisciplinary sanctions may be imposedin the public interest. Nothing in thisregulation should be read to denigratethe practitioner’s duty to representzealously his or her client within thebounds of the law. A practitioner whofalls within one of the followingcategories shall be subject todisciplinary sanctions in the publicinterest if he or she:

(a) Charges or receives, either directlyor indirectly:

(1) In the case of an attorney, any feeor compensation for specific servicesrendered for any person that shall bedeemed to be grossly excessive. Thefactors to be considered in determiningwhether a fee or compensation is grosslyexcessive include the following: Thetime and labor required, the novelty anddifficulty of the questions involved, andthe skill requisite to perform the legalservice properly; the likelihood, ifapparent to the client, that theacceptance of the particularemployment will preclude otheremployment by the attorney; the feecustomarily charged in the locality forsimilar legal services; the amountinvolved and the results obtained; thetime limitations imposed by the clientor by the circumstances; the nature andlength of the professional relationshipwith the client; and the experience,

reputation, and ability of the attorney orattorneys performing the services,

(2) In the case of an accreditedrepresentative as defined in § 292.1(a)(4)of this chapter, any fee or compensationfor specific services rendered for anyperson, except that an accreditedrepresentative may be regularlycompensated by the organization ofwhich he or she is an accreditedrepresentative, or

(3) In the case of a law student or lawgraduate as defined in § 292.1(a)(2) ofthis chapter, any fee or compensationfor specific services rendered for anyperson, except that a law student or lawgraduate may be regularly compensatedby the organization or firm with whichhe or she is associated as long as he orshe is appearing without direct orindirect remuneration from the client heor she represents;

(b) Bribes, attempts to bribe, coerces,or attempts to coerce, by any meanswhatsoever, any person (including aparty to a case or an officer or employeeof the Department of Justice) to commitany act or to refrain from performingany act in connection with any case;

(c) Knowingly or with recklessdisregard makes a false statement ofmaterial fact or law, or willfullymisleads, misinforms, threatens, ordeceives any person (including a partyto a case or an officer or employee of theDepartment of Justice), concerning anymaterial and relevant matter relating toa case, including knowingly or withreckless disregard offering falseevidence. If a practitioner has offeredmaterial evidence and comes to know ofits falsity, the practitioner shall takeappropriate remedial measures;

(d) Solicits professional employment,through in-person or live telephonecontact or through the use of runners,from a prospective client with whomthe practitioner has no family or priorprofessional relationship, when asignificant motive for the practitioner’sdoing so is the practitioner’s pecuniarygain. If the practitioner has no family orprior professional relationship with theprospective client known to be in needof legal services in a particular matter,the practitioner must include the words‘‘Advertising Material’’ on the outside ofthe envelope of any writtencommunication and at the beginningand ending of any recordedcommunication. Such advertisingmaterial or similar solicitationdocuments may not be distributed byany person in or around the premises ofany building in which an ImmigrationCourt is located;

(e) Is subject to a final order ofdisbarment or suspension, or has



resigned with an admission ofmisconduct.

(1) In the jurisdiction of any state,possession, territory, commonwealth, orthe District of Columbia, or in anyFederal court in which the practitioneris admitted to practice, or

(2) Before any executive department,board, commission, or othergovernmental unit;

(f) Knowingly or with recklessdisregard makes a false or misleadingcommunication about his or herqualifications or services. Acommunication is false or misleading ifit:

(1) Contains a materialmisrepresentation of fact or law, oromits a fact necessary to make thestatement considered as a whole notmaterially misleading, or,

(2) Contains an assertion about thepractitioner or his or her qualificationsor services that cannot be substantiated.A practitioner shall not state or implythat he or she has been recognized orcertified as a specialist in immigrationand/or nationality law unless suchcertification is granted by theappropriate state regulatory authority orby an organization that has beenapproved by the appropriate stateregulatory authority to grant suchcertification;

(g) Engages in contumelious orotherwise obnoxious conduct, withregard to a case in which he or she actsin a representative capacity, whichwould constitute contempt of court in ajudicial proceeding;

(h) Has been found guilty of, orpleaded guilty or nolo contendere to, aserious crime, in any court of the UnitedStates, or of any state, possession,territory, commonwealth, or the Districtof Columbia. A serious crime includesany felony and also includes any lessercrime, a necessary element of which, asdetermined by the statutory or commonlaw definition of such crime in thejurisdiction where the judgment wasentered, involves interference with theadministration of justice, false swearing,misrepresentation, fraud, willful failureto file income tax returns, deceit,dishonesty, bribery, extortion,misappropriation, theft, or an attempt,or a conspiracy or solicitation ofanother, to commit a serious crime. Aplea or verdict of guilty or a convictionafter a plea of nolo contendere isdeemed to be a conviction within themeaning of this section;

(i) Knowingly or with recklessdisregard falsely certifies a copy of adocument as being a true and completecopy of an original;

(j) Engages in frivolous behavior in aproceeding before an Immigration Court,

the Board, or any other administrativeappellate body under title II of theImmigration and Nationality Act,provided:

(1) A practitioner engages in frivolousbehavior when he or she knows orreasonably should have known that hisor her actions lack an arguable basis inlaw or in fact, or are taken for animproper purpose, such as to harass orto cause unnecessary delay. Actionsthat, if taken improperly, may be subjectto disciplinary sanctions include, butare not limited to, the making of anargument on any factual or legalquestion, the submission of anapplication for discretionary relief, thefiling of a motion, or the filing of anappeal. The signature of a practitioneron any filing, application, motion,appeal, brief, or other documentconstitutes certification by the signerthat the signer has read the filing,application, motion, appeal, brief, orother document and that, to the best ofthe signer’s knowledge, information,and belief, formed after inquiryreasonable under the circumstances, thedocument is well-grounded in fact andis warranted by existing law or by agood faith argument for the extension,modification, or reversal of existing lawor the establishment of new law, and isnot interposed for any improperpurpose.

(2) The imposition of disciplinarysanctions for frivolous behavior underthis section in no way limits theauthority of the Board to dismiss anappeal summarily pursuant to§ 3.1(d)(1-a);

(k) Engages in conduct thatconstitutes ineffective assistance ofcounsel, as previously determined in afinding by the Board or an ImmigrationJudge in an immigration proceeding,and a disciplinary complaint is filedwithin one year of the finding;

(l) Repeatedly fails to appear forscheduled hearings in a timely mannerwithout good cause; or

(m) Assists any person, other than apractitioner as defined in § 3.101(b), inthe performance of activity thatconstitutes the unauthorized practice oflaw.

§ 3.103 Immediate suspension andsummary disciplinary proceedings; duty ofpractitioner to notify EOIR of conviction ordiscipline.

(a) Immediate suspension. (1)Petition. The Office of the GeneralCounsel of EOIR shall file a petitionwith the Board to suspend immediatelyfrom practice before the Board and theImmigration Courts any practitionerwho has been found guilty of, orpleaded guilty or nolo contendere to, a

serious crime, as defined in § 3.102(h),or any practitioner who has beendisbarred or suspended on an interim orfinal basis by, or has resigned with anadmission of misconduct from, thehighest court of any state, possession,territory, commonwealth, or the Districtof Columbia, or any Federal court. Acopy of the petition shall be forwardedto the Office of the General Counsel ofthe Service, which may submit a writtenrequest to the Board that entry of anyorder immediately suspending apractitioner before the Board or theImmigration Courts also apply to thepractitioner’s authority to practicebefore the Service. Proof of service onthe practitioner of the Service’s requestto broaden the scope of any immediatesuspension must be filed with theBoard.

(2) Immediate suspension. Upon thefiling of a petition for immediatesuspension by the Office of the GeneralCounsel of EOIR, together with acertified copy of a court record findingthat a practitioner has been so foundguilty of a serious crime, or has been sodisciplined or has so resigned, theBoard shall forthwith enter an orderimmediately suspending thepractitioner from practice before theBoard, the Immigration Courts, and/orthe Service, notwithstanding thependency of an appeal, if any, of theunderlying conviction or discipline,pending final disposition of a summarydisciplinary proceeding as provided inparagraph (b) of this section. Suchimmediate suspension will continueuntil imposition of a finaladministrative decision. Upon goodcause shown, the Board may set asidesuch order of immediate suspensionwhen it appears in the interest of justiceto do so. If a final administrativedecision includes the imposition of aperiod of suspension, time spent by thepractitioner under immediatesuspension pursuant to this paragraphmay be credited toward the period ofsuspension imposed under the finaladministrative decision.

(b) Summary disciplinaryproceedings. The Office of the GeneralCounsel of EOIR shall promptly initiatesummary disciplinary proceedingsagainst any practitioner described inparagraph (a) of this section. Summaryproceedings shall be initiated by theissuance of a Notice of Intent toDiscipline, accompanied by a certifiedcopy of the order, judgment, and/orrecord evidencing the underlyingcriminal conviction, discipline, orresignation. Summary proceedings shallbe conducted in accordance with theprovisions set forth in §§ 3.105 and3.106. Any such summary proceeding



shall not be concluded until all directappeals from an underlying criminalconviction shall have been completed.

(1) In matters concerning criminalconvictions, a certified copy of the courtrecord, docket entry, or plea shall beconclusive evidence of the commissionof the crime in any summarydisciplinary proceeding based thereon.

(2) In the case of a summaryproceeding based upon a final order ofdisbarment or suspension, or aresignation with an admission ofmisconduct, (i.e., reciprocal discipline),a certified copy of a judgment or orderof discipline shall establish a rebuttablepresumption of the professionalmisconduct. Disciplinary sanctionsshall follow in such a proceeding unlessthe attorney can rebut the presumptionby demonstrating by clear, unequivocal,and convincing evidence that:

(i) The underlying disciplinaryproceeding was so lacking in notice oropportunity to be heard as to constitutea deprivation of due process;

(ii) There was such an infirmity ofproof establishing the attorney’sprofessional misconduct as to give riseto the clear conviction that theadjudicating official could not,consistent with his or her duty, acceptas final the conclusion on that subject;or

(iii) The imposition of discipline bythe adjudicating official would result ingrave injustice.

(c) Duty of practitioner to notify EOIRof conviction or discipline. Anypractitioner who has been found guiltyof, or pleaded guilty or nolo contendereto, a serious crime, as defined in§ 3.102(h), or who has been disbarred orsuspended by, or who has resigned withan admission of misconduct from, thehighest court of any state, possession,territory, commonwealth, or the Districtof Columbia, or by any Federal court,must notify the Office of the GeneralCounsel of EOIR of any such convictionor disciplinary action within 30 days ofthe issuance of the initial order, even ifan appeal of the conviction or disciplineis pending. Failure to do so may resultin immediate suspension as set forth inparagraph (a) of this section and otherfinal discipline. This duty to notifyapplies only to convictions for seriouscrimes and to orders imposingdiscipline for professional misconductentered on or after August 28, 2000.

§ 3.104 Filing of complaints; preliminaryinquiries; resolutions; referral ofcomplaints.

(a) Filing of complaints.—(1)Practitioners authorized to practicebefore the Board and the ImmigrationCourts. Complaints of criminal,

unethical, or unprofessional conduct, orof frivolous behavior by a practitionerwho is authorized to practice before theBoard and the Immigration Courts, shallbe filed with the Office of the GeneralCounsel of EOIR. Disciplinarycomplaints must be submitted inwriting and must state in detail theinformation that supports the basis forthe complaint, including, but notlimited to, the names and addresses ofthe complainant and the practitioner,the date(s) of the conduct or behavior,the nature of the conduct or behavior,the individuals involved, the harm ordamages sustained by the complainant,and any other relevant information. Anyindividual may file a complaint with theOffice of the General Counsel of EOIRusing the Form EOIR–44. The Office ofthe General Counsel of EOIR shall notifythe Office of the General Counsel of theService of any disciplinary complaintthat pertains, in whole or in part, to amatter involving the Service.

(2) Practitioners authorized topractice before the Service. Complaintsof criminal, unethical, or unprofessionalconduct, or of frivolous behavior by apractitioner who is authorized topractice before the Service, shall be filedwith the Office of the General Counselof the Service pursuant to theprocedures set forth in § 292.3(d) of thischapter.

(b) Preliminary inquiry. Upon receiptof a disciplinary complaint or on itsown initiative, the Office of the GeneralCounsel of EOIR will initiate apreliminary inquiry. If a complaint isfiled by a client or former client, thecomplainant thereby waives theattorney-client privilege and any otherapplicable privilege, to the extentnecessary to conduct a preliminaryinquiry and any subsequent proceedingsbased thereon. If the Office of theGeneral Counsel of EOIR determinesthat a complaint is without merit, nofurther action will be taken. The Officeof the General Counsel of EOIR may, inits discretion, close a preliminaryinquiry if the complainant fails tocomply with reasonable requests forassistance, information, ordocumentation. The complainant andthe practitioner shall be notified of anysuch determination in writing.

(c) Resolutions reached prior to theissuance of a Notice of Intent toDiscipline. The Office of the GeneralCounsel of EOIR, in its discretion, mayissue warning letters and admonitions,and may enter into agreements in lieuof discipline, prior to the issuance of aNotice of Intent to Discipline.

(d) Referral of complaints of criminalconduct. If the Office of the GeneralCounsel of EOIR receives credible

information or allegations that apractitioner has engaged in criminalconduct, the Office of the GeneralCounsel of EOIR shall refer the matterto the Inspector General and, ifappropriate, to the Federal Bureau ofInvestigation. In such cases, in makingthe decision to pursue disciplinarysanctions, the Office of the GeneralCounsel of EOIR shall coordinate inadvance with the appropriateinvestigative and prosecutorialauthorities within the Department toensure that neither the disciplinaryprocess nor criminal prosecutions arejeopardized.

§ 3.105 Notice of Intent to Discipline.(a) Issuance of Notice to practitioner.

If, upon completion of the preliminaryinquiry, the Office of the GeneralCounsel of EOIR determines thatsufficient prima facie evidence exists towarrant charging a practitioner withprofessional misconduct as set forth in§ 3.102, it will issue a Notice of Intentto Discipline to the practitioner namedin the complaint. This notice will beserved upon the practitioner by personalservice as defined in § 103.5a of thischapter. Such notice shall contain astatement of the charge(s), a copy of thepreliminary inquiry report, theproposed disciplinary sanctions to beimposed, the procedure for filing ananswer or requesting a hearing, and themailing address and telephone numberof the Board.

(b) Copy of Notice to the Service;reciprocity of disciplinary sanctions. Acopy of the Notice of Intent toDiscipline shall be forwarded to theOffice of the General Counsel of theService. The Office of the GeneralCounsel of the Service may submit awritten request to the Board or theadjudicating official requesting that anydiscipline imposed upon a practitionerwhich restricts his or her authority topractice before the Board or theImmigration Courts also apply to thepractitioner’s authority to practicebefore the Service. Proof of service onthe practitioner of any request tobroaden the scope of the proposeddiscipline must be filed with theadjudicating official.

(c) Answer.—(1) Filing. Thepractitioner shall file a written answerto the Notice of Intent to Discipline withthe Board within 30 days of the date ofservice of the Notice of Intent toDiscipline unless, on motion to theBoard, an extension of time to answer isgranted for good cause. A motion for anextension of time to answer must bereceived by the Board no later thanthree (3) working days before the timeto answer has expired. A copy of the



answer and any such motion shall beserved by the practitioner on the Officeof the General Counsel of EOIR (or theOffice of the General Counsel of theService with respect to a Notice ofIntent to Discipline issued by theService).

(2) Contents. The answer shall containa statement of facts which constitute thegrounds of defense and shallspecifically admit or deny eachallegation set forth in the Notice ofIntent to Discipline. Every allegation inthe Notice of Intent to Discipline whichis not denied in the answer shall bedeemed to be admitted and may beconsidered as proved, and no furtherevidence in respect of such allegationneed be adduced. The practitioner mayalso state affirmatively special mattersof defense and may submit supportingdocuments, including affidavits orstatements, along with the answer.

(3) Request for hearing. Thepractitioner shall also state in theanswer whether he or she requests ahearing on the matter. If no such requestis made, the opportunity for a hearingwill be deemed waived.

(d) Failure to file an answer. (1)Failure to file an answer within the timeperiod prescribed in the Notice of Intentto Discipline, except where the time toanswer is extended by the Board, shallconstitute an admission of theallegations in the Notice of Intent toDiscipline and no further evidence withrespect to such allegations need beadduced.

(2) Upon such a default by thepractitioner, the Office of the GeneralCounsel shall submit to the Board proofof personal service of the Notice ofIntent to Discipline. The practitionershall be precluded thereafter fromrequesting a hearing on the matter. TheBoard shall issue a final order adoptingthe recommended disciplinarysanctions in the Notice of Intent toDiscipline unless to do so would fostera tendency toward inconsistentdispositions for comparable conduct, orwould otherwise be unwarranted or notin the interest of justice. Any final orderimposing discipline shall not becomeeffective sooner than 15 days from thedate of the order to provide thepractitioner opportunity to comply withthe terms of such order, including, butnot limited to, withdrawing frompending immigration matters andnotifying immigration clients of theimposition of any sanction. Apractitioner may file a motion to setaside a final order of discipline issuedpursuant to this paragraph, with serviceof such motion on the Office of theGeneral Counsel of EOIR, provided:

(i) Such a motion is filed within 15days of the date of service of the finalorder; and

(ii) His or her failure to file an answerwas due to exceptional circumstances(such as serious illness of thepractitioner or death of an immediaterelative of the practitioner, but notincluding less compellingcircumstances) beyond the control ofthe practitioner.

§ 3.106 Hearing and disposition.(a) Hearing.—(1) Procedure. (i) The

Chief Immigration Judge shall, upon thefiling of an answer, appoint anImmigration Judge as an adjudicatingofficial. At the request of the ChiefImmigration Judge or in the interest ofefficiency, the Director of EOIR mayappoint an Administrative Law Judge asan adjudicating official. An ImmigrationJudge or Administrative Law Judge shallnot serve as the adjudicating official inany case in which he or she is also thecomplainant. An Immigration Judgeshall not serve as the adjudicatingofficial in any case involving apractitioner who regularly appearsbefore him or her.

(ii) Upon the practitioner’s request fora hearing, the adjudicating official shalldesignate the time and place of thehearing with due regard to the locationof the practitioner’s practice orresidence, the convenience of witnesses,and any other relevant factors. Suchnotice shall be served upon thepractitioner by personal service asdefined in § 103.5a of this chapter. Thepractitioner shall be afforded adequatetime to prepare his or her case inadvance of the hearing. Pre-hearingconferences may be scheduled at thediscretion of the adjudicating official inorder to narrow issues, to obtainstipulations between the parties, toexchange information voluntarily, andotherwise to simplify and organize theproceeding. Settlement agreementsreached after the issuance of a Notice ofIntent to Discipline are subject to finalapproval by the adjudicating official orif the practitioner has not filed ananswer, subject to final approval by theBoard.

(iii) The practitioner may berepresented at the hearing by counsel atno expense to the government. Counselfor the practitioner shall file a Notice ofEntry of Appearance on Form EOIR–28in accordance with the procedures setforth in this Part 3. At the hearing, thepractitioner shall have a reasonableopportunity to examine and object toevidence presented by the government,to present evidence on his or her ownbehalf, and to cross-examine witnessespresented by the government.

(iv) In rendering a decision, theadjudicating official shall consider thefollowing: the complaint, thepreliminary inquiry report, the Notice ofIntent to Discipline, the answer and anysupporting documents, and any otherevidence presented at the hearing (or, ifthe practitioner files an answer but doesnot request a hearing, any pleading,brief, or other materials submitted bycounsel for the government). Counselfor the government shall bear theburden of proving the grounds fordisciplinary sanctions enumerated inthe Notice of Intent to Discipline byclear, unequivocal, and convincingevidence.

(v) The record of the hearing,regardless of whether the hearing is heldbefore an Immigration Judge or anAdministrative Law Judge, shallconform to the requirements of 8 CFRpart 3, subpart C and 8 CFR 240.9.Disciplinary hearings shall beconducted in the same manner asImmigration Court proceedings as isappropriate, and shall be open to thepublic, except that:

(A) Depending upon physicalfacilities, the adjudicating official mayplace reasonable limitations upon thenumber of individuals in attendance atany one time, with priority being givento the press over the general public, and

(B) For the purposes of protectingwitnesses, parties, or the public interest,the adjudicating official may limitattendance or hold a closed hearing.

(2) Failure to appear at the hearing. Ifthe practitioner fails to appear at thehearing, the adjudicating official shallthen proceed and decide the case in theabsence of the practitioner, inaccordance with paragraph (b) of thissection, based upon the availablerecord, including any additionalevidence or arguments presented byEOIR or the Service at the hearing. Insuch a proceeding, the Office of theGeneral Counsel of EOIR or the Officeof the General Counsel of the Serviceshall submit to the adjudicating officialproof of personal service of the Noticeof Intent to Discipline as well as theNotice of the Hearing. The practitionershall be precluded thereafter fromparticipating further in the proceedings.Any final order imposing disciplineentered in absentia shall be a finalorder, but shall not become effectivesooner than 15 days from the date of theorder to provide the practitioneropportunity to comply with the terms ofsuch order, including, but not limitedto, withdrawing from pendingimmigration matters and notifyingimmigration clients of the imposition ofany sanction. A final order of disciplineissued pursuant to this paragraph shall



not be subject to further review, exceptthat the practitioner may file a motionto set aside the order, with service ofsuch motion on the Office of the GeneralCounsel of EOIR (or the Office of theGeneral Counsel of the Service),provided:

(i) Such a motion is filed within 15days of the date of issuance of the finalorder; and

(ii) His or her failure to appear at thehearing was due to exceptionalcircumstances (such as serious illness ofthe practitioner or death of animmediate relative of the practitioner,but not including less compellingcircumstances) beyond the control ofthe practitioner.

(b) Decision. The adjudicating officialshall consider the entire record,including any testimony and evidencepresented at the hearing, and, as soon aspracticable after the hearing, render adecision. If the adjudicating officialfinds that one or more of the grounds fordisciplinary sanctions enumerated inthe Notice of Intent to Discipline havebeen established by clear, unequivocal,and convincing evidence, he or sheshall rule that the disciplinary sanctionsset forth in the Notice of Intent toDiscipline be adopted, modified, orotherwise amended. If the adjudicatingofficial determines that the practitionershould be suspended, the time periodfor such suspension shall be specified.Any grounds for disciplinary sanctionsenumerated in the Notice of Intent toDiscipline that have not beenestablished by clear, unequivocal, andconvincing evidence shall be dismissed.Except as provided in paragraph (a)(2)of this section, the adjudicating official’sdecision becomes final only uponwaiver of appeal or expiration of thetime for appeal to the Board, whichevercomes first, nor does it take effectduring the pendency of an appeal to theBoard as provided in § 3.6.

(c) Appeal. Upon the issuance of adecision by the adjudicating official,either party or both parties may appealto the Board to conduct a de novoreview of the record. Parties mustcomply with all pertinent provisions forappeals to the Board, includingprovisions relating to forms and fees, asset forth in this Part 3, and must use theForm EOIR–45. The decision of theBoard is a final administrative order asprovided in § 3.1(d)(2), and shall beserved upon the practitioner by personalservice as defined in § 103.5a of thischapter. Any final order imposingdiscipline shall not become effectivesooner than 15 days from the date of theorder to provide the practitioneropportunity to comply with the terms ofsuch order, including, but not limited

to, withdrawing from any pendingimmigration matters and notifyingimmigration clients of the imposition ofany sanction. A copy of the finaladministrative order of the Board shallbe served upon the Office of the GeneralCounsel of EOIR and the Office of theGeneral Counsel of the Service. Ifdisciplinary sanctions are imposedagainst a practitioner (other than aprivate censure), the Board may requirethat notice of such sanctions be postedat the Board, the Immigration Courts, orthe Service for the period of time duringwhich the sanctions are in effect, or forany other period of time as determinedby the Board.

(d) Referral. In addition to, or in lieuof, initiating disciplinary proceedingsagainst a practitioner, the Office of theGeneral Counsel of EOIR may notify anyappropriate Federal and/or statedisciplinary or regulatory authority ofany complaint filed against apractitioner. Any final administrativedecision imposing sanctions against apractitioner (other than a privatecensure) shall be reported to any suchdisciplinary or regulatory authority inevery jurisdiction where the disciplinedpractitioner is admitted or otherwiseauthorized to practice. In addition, theOffice of the General Counsel of EOIRshall transmit notice of all publicdiscipline imposed under this rule tothe National Lawyer Regulatory DataBank maintained by the American BarAssociation.

§ 3.107 Reinstatement after expulsion orsuspension.

(a) Expiration of suspension. Uponnotice to the Board, a practitioner whohas been suspended will be reinstated topractice before the Board and theImmigration Courts or the Service, orbefore all three authorities, once theperiod of suspension has expired,provided that he or she meets thedefinition of attorney or representativeas set forth in § 1.1(f) and (j),respectively, of this chapter. If apractitioner cannot meet the definitionof attorney or representative, the Boardshall decline to reinstate thepractitioner.

(b) Petition for reinstatement. Apractitioner who has been expelled orwho has been suspended for one year ormore may file a petition forreinstatement directly with the Boardafter one-half of the suspension periodhas expired or one year has passed,whichever is greater, provided that he orshe meets the definition of attorney orrepresentative as set forth in § 1.1(f) and(j), respectively, of this chapter. A copyof such petition shall be served on theOffice of the General Counsel of EOIR.

In matters in which the practitioner wasordered expelled or suspended frompractice before the Service, a copy ofsuch petition shall be served on theOffice of the General Counsel of theService.

(1) The practitioner shall have theburden of demonstrating by clear,unequivocal, and convincing evidencethat he or she possesses the moral andprofessional qualifications required toappear before the Board and theImmigration Courts or the Service, orbefore all three authorities, and that hisor her reinstatement will not bedetrimental to the administration ofjustice. The Office of the GeneralCounsel of EOIR, and in matters inwhich the practitioner was orderedexpelled or suspended from practicebefore the Service, the Office of theGeneral Counsel of the Service, mayreply within 30 days of service of thepetition in the form of a writtenresponse to the Board, which mayinclude documentation of anycomplaints filed against the expelled orsuspended practitioner subsequent tohis or her expulsion or suspension.

(2) If a practitioner cannot meet thedefinition of attorney or representativeas set forth in § 1.1(f) and (j),respectively, of this chapter, the Boardshall deny the petition for reinstatementwithout further consideration. If thepetition for reinstatement is found to beotherwise inappropriate orunwarranted, the petition shall bedenied. Any subsequent petitions forreinstatement may not be filed beforethe end of one year from the date of theBoard’s previous denial ofreinstatement. If the petition forreinstatement is determined to betimely, the practitioner meets thedefinition of attorney or representative,and the petitioner has otherwise setforth by the requisite standard of proofthat he or she possesses thequalifications set forth herein, and thatreinstatement will not be detrimental tothe administration of justice, the Boardshall grant the petition and reinstate thepractitioner. The Board, in itsdiscretion, may hold a hearing todetermine if the practitioner meets all ofthe requirements for reinstatement.

§ 3.108 Confidentiality.(a) Complaints and preliminary

inquiries. Except as otherwise providedby law or regulation, informationconcerning complaints or preliminaryinquiries is confidential. A practitionerwhose conduct is the subject of acomplaint or preliminary inquiry,however, may waive confidentiality,except that the Office of the GeneralCounsel of EOIR may decline to permit



a waiver of confidentiality if it isdetermined that an ongoing preliminaryinquiry may be substantially prejudicedby public disclosure before the filing ofa Notice of Intent to Discipline.

(1) Disclosure of information for thepurpose of protecting the public. TheOffice of the General Counsel of EOIRmay disclose information concerning acomplaint or preliminary inquiry for theprotection of the public when thenecessity for disclosing informationoutweighs the necessity for preservingconfidentiality in circumstancesincluding, but not limited to, thefollowing:

(i) A practitioner has caused, or islikely to cause, harm to client(s), thepublic, or the administration of justice,such that the public or specificindividuals should be advised of thenature of the allegations. If disclosure ofinformation is made pursuant to thisparagraph, the Office of the GeneralCounsel of EOIR may define the scopeof information disseminated and maylimit the disclosure of information tospecified individuals or entities;

(ii) A practitioner has committedcriminal acts or is under investigationby law enforcement authorities;

(iii) A practitioner is underinvestigation by a disciplinary orregulatory authority, or has committedacts or made omissions that mayreasonably result in investigation bysuch authorities;

(iv) A practitioner is the subject ofmultiple disciplinary complaints andthe Office of the General Counsel ofEOIR has determined not to pursue allof the complaints. The Office of theGeneral Counsel of EOIR may informcomplainants whose allegations havenot been pursued of the status of anyother preliminary inquiries or themanner in which any other complaint(s)against the practitioner have beenresolved.

(2) Disclosure of information for thepurpose of conducting a preliminaryinquiry. The Office of the GeneralCounsel of EOIR, in the exercise ofdiscretion, may disclose documents andinformation concerning complaints andpreliminary inquiries to the followingindividuals or entities:

(i) To witnesses or potential witnessesin conjunction with a complaint orpreliminary inquiry;

(ii) To other governmental agenciesresponsible for the enforcement of civilor criminal laws;

(iii) To agencies and otherjurisdictions responsible fordisciplinary or regulatory investigationsand proceedings;

(iv) To the complainant or a lawfuldesignee;

(v) To the practitioner who is thesubject of the complaint or preliminaryinquiry or the practitioner’s counsel ofrecord.

(b) Resolutions reached prior to theissuance of a Notice of Intent toDiscipline. Resolutions, such as warningletters, admonitions, and agreements inlieu of discipline, reached prior to theissuance of a Notice of Intent toDiscipline, will remain confidential.However, such resolutions may becomepart of the public record if thepractitioner becomes subject to asubsequent Notice of Intent toDiscipline.

(c) Notices of Intent to Discipline andaction subsequent thereto. Notices ofIntent to Discipline and any action thattakes place subsequent to their issuance,except for the imposition of privatecensures, may be disclosed to thepublic, except that private censures maybecome part of the public record ifintroduced as evidence of a prior recordof discipline in any subsequentdisciplinary proceeding. Settlementagreements reached after the issuance ofa Notice of Intent to Discipline may bedisclosed to the public upon finalapproval by the adjudicating official orthe Board. Disciplinary hearings areopen to the public, except as noted in§ 3.106(a)(1)(v).

§ 3.109 Discipline of governmentattorneys.

Complaints regarding the conduct orbehavior of Department attorneys,Immigration Judges, or Board Membersshall be directed to the Office ofProfessional Responsibility, UnitedStates Department of Justice. Ifdisciplinary action is warranted, it shallbe administered pursuant to theDepartment’s attorney disciplineprocedures.

PART 292—REPRESENTATION ANDAPPEARANCES

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

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

9. Section 292.3 is revised to read asfollows:

§ 292.3 Professional Conduct forPractitioners—Rules and Procedures.

(a) General provisions.— (1) Authorityto sanction. An adjudicating official orthe Board of Immigration Appeals (theBoard) may impose disciplinarysanctions against any practitioner if itfinds it to be in the public interest to doso. It will be in the public interest toimpose disciplinary sanctions against apractitioner who is authorized topractice before the Service when such

person has engaged in criminal,unethical, or unprofessional conduct, orin frivolous behavior, as set forth in§ 3.102 of this chapter. In accordancewith the disciplinary proceedings setforth in part 3 of this chapter, anadjudicating official or the Board mayimpose any of the following disciplinarysanctions:

(i) Expulsion, which is permanent,from practice before the Board and theImmigration Courts or the Service, orbefore all three authorities;

(ii) Suspension, including immediatesuspension, from practice before theBoard and the Immigration Courts or theService, or before all three authorities;

(iii) Public or private censure; or(iv) Such other disciplinary sanctions

as the adjudicating official or the Boarddeems appropriate.

(2) Persons subject to sanctions.Persons subject to sanctions include anypractitioner. A practitioner is anyattorney as defined in § 1.1(f) of thischapter who does not represent thefederal government, or anyrepresentative as defined in § 1.1(j) ofthis chapter. Attorneys employed by theDepartment of Justice shall be subject todiscipline pursuant to paragraph (i) ofthis section.

(b) Grounds of discipline as set forthin § 3.102 of this chapter. It is deemedto be in the public interest for theadjudicating official or the Board toimpose disciplinary sanctions asdescribed in paragraph (a)(1) of thissection against any practitioner whofalls within one or more of thecategories enumerated in § 3.102 of thischapter, with the exception ofparagraphs (k) and (l) of that section, butthese categories do not constitute theexclusive grounds for whichdisciplinary sanctions may be imposedin the public interest. Nothing in thisregulation should be read to denigratethe practitioner’s duty to representzealously his or her client within thebounds of the law.

(c) Immediate suspension andsummary disciplinary proceedings; dutyof practitioner to notify the Service ofconviction or discipline. (1) Petition.The Office of the General Counsel of theService shall petition the Board tosuspend immediately from practicebefore the Service any practitioner whohas been found guilty of, or pleadedguilty or nolo contendere to, a seriouscrime, as defined in § 3.102(h) of thischapter, or who has been disbarred orsuspended on an interim or final basisby, or has resigned with an admissionof misconduct from, the highest court ofany state, possession, territory,commonwealth, or the District ofColumbia, or any Federal court. A copy



of the petition shall be forwarded to theOffice of the General Counsel of EOIR,which may submit a written request tothe Board that entry of any orderimmediately suspending a practitionerbefore the Service also apply to thepractitioner’s authority to practicebefore the Board or the ImmigrationCourts. Proof of service on thepractitioner of EOIR’s request tobroaden the scope of any immediatesuspension must be filed with theBoard.

(2) Immediate suspension. Upon thefiling of a petition for immediatesuspension by the Office of the GeneralCounsel of the Service, together with acertified copy of a court record findingthat a practitioner has been so foundguilty of a serious crime, or has been sodisciplined or has so resigned, theBoard shall forthwith enter an orderimmediately suspending thepractitioner from practice before theService and/or the Board andImmigration Courts, notwithstandingthe pendency of an appeal, if any, of theunderlying conviction or discipline,pending final disposition of a summaryproceeding, as provided in paragraph(c)(3) of this section. Such immediatesuspension will continue untilimposition of a final administrativedecision. Upon good cause shown, theBoard may set aside such order ofimmediate suspension when it appearsin the interest of justice to do so. If afinal administrative decision includesthe imposition of a period ofsuspension, time spent by thepractitioner under immediatesuspension pursuant to this paragraphmay be credited toward the period ofsuspension imposed under the finaladministrative decision.

(3) Summary disciplinaryproceedings. The Office of the GeneralCounsel of the Service shall promptlyinitiate summary disciplinaryproceedings against any practitionerdescribed in paragraph (c)(1) of thissection. Summary proceedings shall beinitiated by the issuance of a Notice ofIntent to Discipline, accompanied by acertified copy of the order, judgmentand/or record evidencing the underlyingcriminal conviction or discipline.Summary proceedings shall beconducted in accordance with theprovisions set forth in §§ 3.105 and3.106 of this chapter. Any suchproceeding shall not be concluded untilall direct appeals from an underlyingcriminal conviction have beencompleted.

(i) In matters concerning criminalconvictions, a certified copy of the courtrecord, docket entry, or plea shall beconclusive evidence of the commission

of that crime in any summarydisciplinary hearing based thereon.

(ii) In the case of a summaryproceeding based upon a final order ofdisbarment or suspension, or aresignation with an admission ofmisconduct, (i.e., reciprocal discipline),a certified copy of a judgment or orderof discipline shall establish a rebuttablepresumption of the professionalmisconduct. Disciplinary sanctionsshall follow in such a proceeding unlessthe attorney can rebut the presumptionby demonstrating by clear, unequivocal,and convincing evidence that:

(A) The underlying disciplinaryproceeding was so lacking in notice oropportunity to be heard as to constitutea deprivation of due process;

(B) There was such an infirmity ofproof establishing the practitioner’sprofessional misconduct as to give riseto the clear conviction that theadjudicating official could not,consistent with his or her duty, acceptas final the conclusion on that subject;or

(C) The imposition of discipline bythe adjudicating official would result ingrave injustice.

(4) Duty of practitioner to notify theService of conviction or discipline. Anypractitioner who has been found guiltyof, or pleaded guilty or nolo contendereto, a serious crime, as defined in§ 3.102(h) of this chapter, or who hasbeen disbarred or suspended by, or whohas resigned with an admission ofmisconduct from, the highest court ofany state, possession, territory,commonwealth, or the District ofColumbia, or by any Federal court, mustnotify the Office of the General Counselof the Service of any such conviction ordisciplinary action within 30 days of theissuance of the initial order, even if anappeal of the conviction or discipline ispending. Failure to do so may result inimmediate suspension as set forth inparagraph (c)(1) of this section. Thisduty to notify applies only toconvictions for serious crimes or toorders imposing discipline forprofessional misconduct entered on orafter July 27, 2000.

(d) Filing of complaints; preliminaryinquiries; resolutions; referral ofcomplaints.—(1) Filing of complaints.—(i) Misconduct occurring before Service.Complaints of criminal, unethical, orunprofessional conduct, or of frivolousbehavior before the Service by apractitioner shall be filed with theOffice of the General Counsel of theService. Disciplinary complaints mustbe submitted in writing and must statein detail the information that supportsthe basis for the complaint, including,but not limited to, the names and

addresses of the complainant and thepractitioner, the date(s) of the conductor behavior, the nature of the conduct orbehavior, the individuals involved, theharm or damages sustained by thecomplainant, and any other relevantinformation. Any individual may file acomplaint with the Office of the GeneralCounsel of the Service. The Office of theGeneral Counsel of the Service shallnotify the Office of the General Counselof EOIR of any disciplinary complaintthat pertains, in whole or in part, to amatter before the Board or theImmigration Courts.

(ii) Misconduct occurring before theBoard and the Immigration Courts.Complaints of criminal, unethical, orunprofessional conduct, or of frivolousbehavior before the Board and theImmigration Courts by a practitionershall be filed with the Office of theGeneral Counsel of EOIR pursuant to theprocedures set forth in § 3.104(a) of thischapter.

(2) Preliminary inquiry. Upon receiptof a disciplinary complaint or on itsown initiative, the Office of the GeneralCounsel of the Service will initiate apreliminary inquiry. If a complaint isfiled by a client or former client, thecomplainant thereby waives theattorney-client privilege and any otherapplicable privilege, to the extentnecessary to conduct a preliminaryinquiry and any subsequent proceedingbased thereon. If the Office of theGeneral Counsel of the Servicedetermines that a complaint is withoutmerit, no further action will be taken.The Office of the General Counsel of theService may, in its discretion, close apreliminary inquiry if the complainantfails to comply with reasonable requestsfor assistance, information, ordocumentation. The complainant andthe practitioner shall be notified of anysuch determination in writing.

(3) Resolutions reached prior to theissuance of a Notice of Intent toDiscipline. The Office of the GeneralCounsel of the Service, in its discretion,may issue warning letters andadmonitions, and may enter intoagreements in lieu of discipline, prior tothe issuance of a Notice of Intent toDiscipline.

(4) Referral of complaints of criminalconduct. If the Office of the GeneralCounsel of the Service receives credibleinformation or allegations that apractitioner has engaged in criminalconduct, the Office of the GeneralCounsel of the Service shall refer thematter to the Inspector General and, ifappropriate, to the Federal Bureau ofInvestigation. In such cases, in makingthe decision to pursue disciplinarysanctions, the Office of the General



Counsel of the Service shall coordinatein advance with the appropriateinvestigative and prosecutorialauthorities within the Department toensure that neither the disciplinaryprocess nor criminal prosecutions arejeopardized.

(e) Notice of Intent to Discipline.—(1)Issuance of Notice to practitioner. If,upon completion of the preliminaryinquiry, the Office of the GeneralCounsel of the Service determines thatsufficient prima facie evidence exists towarrant charging a practitioner withprofessional misconduct as set forth in§ 3.102 of this chapter, it will issue aNotice of Intent to Discipline to thepractitioner named in the complaint.This notice will be served upon thepractitioner by personal service asdefined in § 103.5a of this chapter. Suchnotice shall contain a statement of thecharge(s), a copy of the preliminaryinquiry report, the proposeddisciplinary sanctions to be imposed,the procedure for filing an answer orrequesting a hearing, and the mailingaddress and telephone number of theBoard.

(2) Copy of Notice to EOIR; reciprocityof disciplinary sanctions. A copy of theNotice of Intent to Discipline shall beforwarded to the Office of the GeneralCounsel of EOIR. The Office of theGeneral Counsel of EOIR may submit awritten request to the Board or theadjudicating official requesting that anydiscipline imposed upon a practitionerwhich restricts his or her authority topractice before the Service also apply tothe practitioner’s authority to practicebefore the Board and the ImmigrationCourts. Proof of service on thepractitioner of any request to broadenthe scope of the proposed disciplinemust be filed with the adjudicatingofficial.

(3) Answer.—(i) Filing. Thepractitioner shall file a written answerto the Notice of Intent to Discipline withthe Board as provided in § 3.105(c) ofthis chapter.

(ii) Failure to file an answer. Failureto file an answer within the time periodprescribed in the Notice of Intent toDiscipline, except where the time toanswer is extended by the Board, shallconstitute an admission of theallegations in the Notice of Intent toDiscipline and no further evidence withrespect to such allegations need beadduced. Upon such a default by thepractitioner, the Office of the GeneralCounsel of the Service shall submit tothe Board proof of personal service ofthe Notice of Intent to Discipline. Thepractitioner shall be precludedthereafter from requesting a hearing onthe matter. The Board shall adopt the

recommended disciplinary sanctions inthe Notice of Intent to Discipline andissue a final order as provided in§ 3.105(d) of this chapter. A practitionermay file a motion to set aside a finalorder of discipline issued pursuant tothis paragraph, with service of suchmotion on the Office of the GeneralCounsel of the Service, provided:

(A) Such a motion is filed within 15days of service of the final order; and

(B) His or her failure to file an answerwas due to exceptional circumstances(such as serious illness of thepractitioner or death of an immediaterelative of the practitioner, but notincluding less compellingcircumstances) beyond the control ofthe practitioner.

(f) Hearing and disposition; appeal;reinstatement proceedings. Upon thefiling of an answer, the matter shall beheard and decided according to theprocedures set forth in § 3.106(a), (b),and (c) of this chapter. The Office of theGeneral Counsel of the Service shallrepresent the government.Reinstatement proceedings shall beconducted according to the proceduresset forth in § 3.107 of this chapter.

(g) Referral. In addition to, or in lieuof, initiating disciplinary proceedingsagainst a practitioner, the Office of theGeneral Counsel of the Service maynotify any appropriate Federal and/orstate disciplinary or regulatory authorityof any complaint filed against apractitioner. Any final administrativedecision imposing sanctions against apractitioner (other than a privatecensure) shall be reported to any suchdisciplinary or regulatory authority inevery jurisdiction where the disciplinedpractitioner is admitted or otherwiseauthorized to practice. In addition, theOffice of the General Counsel of theService shall transmit notice of allpublic discipline imposed under thisrule to the National Lawyer RegulatoryData Bank maintained by the AmericanBar Association.

(h) Confidentiality.—(1) Complaintsand preliminary inquiries. Except asotherwise provided by law orregulation, information concerningcomplaints or preliminary inquiries isconfidential. A practitioner whoseconduct is the subject of a complaint orpreliminary inquiry, however, maywaive confidentiality, except that theOffice of the General Counsel of theService may decline to permit a waiverof confidentiality if it is determined thatan ongoing preliminary inquiry may besubstantially prejudiced by a publicdisclosure before the filing of a Noticeof Intent to Discipline.

(i) Disclosure of information for thepurpose of protecting the public. The

Office of the General Counsel of theService may disclose informationconcerning a complaint or preliminaryinquiry for the protection of the publicwhen the necessity for disclosinginformation outweighs the necessity forpreserving confidentiality incircumstances including, but notlimited to, the following:

(A) A practitioner has caused, or islikely to cause, harm to client(s), thepublic, or the administration of justice,such that the public or specificindividuals should be advised of thenature of the allegations. If disclosure ofinformation is made pursuant to thisparagraph, the Office of the GeneralCounsel of the Service may define thescope of information disseminated andmay limit the disclosure of informationto specified individuals or entities;

(B) A practitioner has committedcriminal acts or is under investigationby law enforcement authorities;

(C) A practitioner is underinvestigation by a disciplinary orregulatory authority, or has committedacts or made omissions that mayreasonably result in investigation bysuch an authority;

(D) A practitioner is the subject ofmultiple disciplinary complaints andthe Office of the General Counsel of theService has determined not to pursue allof the complaints. The Office of theGeneral Counsel of the Service mayinform complainants whose allegationshave not been pursued of the status ofany other preliminary inquiries or themanner in which any other complaint(s)against the practitioner have beenresolved.

(ii) Disclosure of information for thepurpose of conducting a preliminaryinquiry. The Office of the GeneralCounsel of the Service, in the exerciseof discretion, may disclose documentsand information concerning complaintsand preliminary inquiries to thefollowing individuals or entities:

(A) To witnesses or potentialwitnesses in conjunction with acomplaint or preliminary inquiry;

(B) To other governmental agenciesresponsible for the enforcement of civilor criminal laws;

(C) To agencies and otherjurisdictions responsible for conductingdisciplinary investigations orproceedings;

(D) To the complainant or a lawfuldesignee; and

(E) To the practitioner who is thesubject of the complaint or preliminaryinquiry or the practitioner’s counsel ofrecord.

(2) Resolutions reached prior to theissuance of a Notice of Intent toDiscipline. Resolutions, such as warning



letters, admonitions, and agreements inlieu of discipline, reached prior to theissuance of a Notice of Intent toDiscipline, will remain confidential.However, such resolutions may becomepart of the public record if thepractitioner becomes subject to asubsequent Notice of Intent toDiscipline.

(3) Notices of Intent to Discipline andaction subsequent thereto. Notices ofIntent to Discipline and any action thattakes place subsequent to their issuance,except for the imposition of privatecensures, may be disclosed to thepublic, except that private censures maybecome part of the public record ifintroduced as evidence of a prior recordof discipline in any subsequentdisciplinary proceeding. Settlementagreements reached after the issuance ofa Notice of Intent to Discipline may bedisclosed to the public upon finalapproval by the adjudicating official orthe Board. Disciplinary hearings areopen to the public, except as noted in§ 3.106(a)(v) of this chapter.

(i) Discipline of government attorneys.Complaints regarding the conduct orbehavior of Department attorneys,Immigration Judges, or Board Membersshall be directed to the Office ofProfessional Responsibility, UnitedStates Department of Justice. Ifdisciplinary action is warranted, it shallbe administered pursuant to theDepartment’s attorney disciplineprocedures.

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

DEPARTMENT OF AGRICULTURE

Animal and Plant Health InspectionService

9 CFR Parts 54 and 79

[Docket No. 99–067–2]

Scrapie Pilot Projects

AGENCY: Animal and Plant HealthInspection Service, USDA.ACTION: Final rule.

SUMMARY: We are amending theregulations concerning the voluntaryscrapie flock certification program andthe interstate movement of sheep andgoats to exempt flocks from certainregulatory requirements when the flocksare participating in scrapie control pilotprojects authorized by the Animal andPlant Health Inspection Service. We

believe this action is necessary so thatpilot projects can achieve their goal offurthering progress toward theeradication of scrapie. This action willaffect a small number of flock ownersparticipating in scrapie control pilotprojects.

EFFECTIVE DATE: June 27, 2000.

FOR FURTHER INFORMATION CONTACT: Dr.Diane Sutton, Senior Staff Veterinarian,National Animal Health Programs Staff,VS, APHIS, 4700 River Road Unit 43,Riverdale, MD 20737–1235; (301) 734–6954.

SUPPLEMENTARY INFORMATION:

Background

Scrapie is a degenerative andeventually fatal disease affecting thecentral nervous systems of sheep andgoats. To control the spread of scrapiewithin the United States, the Animaland Plant Health Inspection Service(APHIS), U.S. Department of Agriculture(USDA), administers regulations at 9CFR part 79, which restrict the interstatemovement of certain sheep and goats.APHIS also administers the VoluntaryScrapie Flock Certification Program (theVSFCP), described in the regulations at9 CFR part 54.

On December 17, 1999, we publishedin the Federal Register (64 FR 70608–70610, Docket No. 99–067–1) a proposalto amend 9 CFR parts 54 and 79 to adda definition of the term scrapie controlpilot project and to allow theAdministrator to waive specifiedrequirements of parts 54 and 79 forflocks participating in scrapie controlpilot projects. The purpose of theproposal was to enhance the ability ofAPHIS to work with flock owners todevelop pilot projects for scrapie controlthat may involve using techniques andprocedures different from thosecontained in the current regulations.

We solicited comments concerningour proposal for 30 days ending January18, 2000. We received seven commentsby that date. They were from a Stategovernment, an association representingveterinarians, two associationsrepresenting the U.S. sheep industry,and three individual sheep producers.Six commenters generally supported theproposed rule, but several suggestedchanges to improve it. One commenteropposed the proposed rule. Several ofthe commenters also raised issuesoutside the scope of the proposed rule.All issues raised by the commentspertinent to the proposed rule arediscussed below by topic.

Pilot Projects will Preserve InfectedSheep and Delay Eradication of Scrapie

The comment opposed to theproposed rule stated that pilot projects,by lessening restrictions, could result inthe movement of sheep that werepotentially infected with scrapie,spreading the disease and delaying itseradication. This commenter stated thatsheep allowed movement by the pilotprojects would be quarantined ordestroyed under the previousregulations. Another commenter urgedAPHIS to be conservative in its approvalof pilot projects to guard against projectsthat may actually contribute to thespread of scrapie.

We are not making any change inresponse to these comments.Historically, scrapie control has notbeen successful in part becauseproducers of sheep with valuablegenetic lines were often left with fewalternatives other than flockdepopulation. This was discouragingand often influenced producers not toreport scrapie. The pilot projects willallow us to evaluate methods that mayprovide alternatives to flockdepopulation while minimizing thespread of disease. It is essential to usepilot projects to evaluate different testsand control methods. It is our belief thatthese projects will assist us in adjustingour control and eradication programs tobe more effective and acceptable toproducers and will, therefore,accelerate, not delay, progress towardthe eradication of scrapie. Each pilotproject will have restrictions on themovement of sheep in the project thatare commensurate with the risk that thesheep might spread scrapie, and thesemovement restrictions and otherprecautions in pilot project designshould prevent the spread of scrapie asa result of the pilot projects.

Definition of Scrapie Control PilotProject

The definition proposed for the termscrapie control pilot project was ‘‘Apilot project authorized by theAdministrator in writing, designed toperform research or test or improveprogram procedures for scrapie control.In addition to APHIS, participants mayinclude State animal health agencies,flock owners, and other parties asnecessary.’’ Two commenters suggestedthat pilot projects could contribute tothe eradication as well as the control ofscrapie, and noted that eventualeradication of the disease is animportant goal of scrapie programs andshould be stressed. We agree.

One commenter questioned including‘‘designed to perform research’’ in the


federal register /vol. 65, no. 124/tuesday, june 27, 2000 ... · federal register/vol. 65, no....

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