Opinion | Federal Justice Department twists attorney ethics into misconduct

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As a bilingual advocate working in public defense, I regularly represent Spanish-speaking clients in Minnesota, many of whom have varying immigration statuses. My job is straightforward yet demanding: ensuring my clients receive competent, fair and loyal representation. My ethical obligations are clear: I must protect my clients’ rights, safeguard their interests and work tirelessly to resolve their cases justly. For many public defense clients, the stakes couldn’t be higher, as a criminal conviction could result in devastating immigration consequences.

“A lawyer must, to the extent consistent with the lawyer’s other legal duties, act with reasonable diligence and promptness to advance the client’s lawful objectives, as defined by the client.”

— Restatement (Third) of the Law Governing Lawyers Section 16(2)

Recently, however, the U.S. Department of Justice (DOJ) appears intent on twisting these fundamental ethical duties into criminal misconduct, initiating a troubling investigation into Minnesota judges and attorneys who proactively sought to ensure their clients’ safety by requesting virtual court appearances to avoid potential unannounced apprehension by Immigration and Customs Enforcement (ICE). As reported by Reuters and Fox News, federal investigators considered charging lawyers and judges with obstruction of justice simply because they attempted to protect their clients from aggressive ICE enforcement at courthouses.

Let’s be abundantly clear: This investigation is not only misguided — it is a direct threat to the constitutional foundations of criminal defense. No attorney is legally or ethically required to assist federal authorities in arresting or apprehending their client. Quite the opposite: Attorneys have an ethical obligation to zealously advocate for and protect their clients’ interests, which inherently includes minimizing any risk of harm or collateral consequences.

Minnesota attorneys who discussed requesting virtual appearances on private email groups were doing exactly what competent attorneys must do — identify lawful, ethical methods to protect clients. Virtual hearings, now a routine and accepted practice following the COVID-19 pandemic, serve many legitimate purposes: Defendants attend court safely and efficiently, courts operate smoothly and public safety is preserved.

Attorneys regularly request virtual appearances for clients in a wide range of circumstances. These include students attending college out of state, individuals managing serious medical conditions and clients who reside several hours away from the courthouse and would otherwise be required to travel long distances for brief procedural hearings. In each of these situations, virtual appearances allow the justice system to function efficiently and fairly, without imposing unnecessary hardship.

Yet, according to leaked emails reported by Fox News, these straightforward requests to protect clients were characterized as conspiratorial plots to evade federal authorities. Ironically, the very statutes cited in the article, such as 8 U.S.C. Section 1324, criminalizing the harboring of immigrants, do not remotely apply here. Lawyers who reasonably request an online video hearing from a judge who grants it transparently are not “harboring” or “concealing” clients. They are openly advocating, on the record, before judges exercising lawful authority.

The DOJ’s aggressive posture toward defense lawyers and state judges is dangerous precisely because it undermines attorneys’ independence. Public defenders, who disproportionately serve marginalized communities, frequently represent clients facing potential immigration consequences. Our professional duty is explicit under Padilla v. Kentucky: We must advise clients accurately about immigration risks and represent their interests zealously. Lawyers who fail to protect clients’ rights or reduce risks when legally possible are the ones failing ethical obligations — not those who fulfill them.

That DOJ officials even considered criminal charges against judges and defense lawyers for discussing perfectly lawful requests for virtual hearings speaks volumes about the misuse of prosecutorial power. Such intimidation undermines judicial independence, chills ethical advocacy and threatens our justice system’s core principles. It signals to attorneys in Minnesota that zealously advocating for clients’ safety and due process could land you under federal investigation.

State court judges are charged with administering justice in cases properly before them, crimes reported, charged and prosecuted under state law within their jurisdiction. They are not obligated to suspend or compromise those proceedings to accommodate politically motivated enforcement priorities of the federal executive.

Granting virtual appearances in appropriate cases is a lawful exercise of judicial discretion that promotes access to justice and courtroom efficiency. The DOJ’s attempts to intimidate those who fulfilled their roles lawfully should be rejected. Protecting a client’s rights is not criminal conduct — it is the core of ethical advocacy and the proper function of the judiciary.