Ethics Realothetical for the Classroom

A “realothetical” (re-Al-o-thetical), a word coined by my law professor husband, is an in-class problem pulled from the real world. Such problems can be fun for students, who see the exercises as a genuine step toward practice-readiness. They can also be messy, as the real world doesn’t tend to turn out quite as neatly as the world of hypotheticals.

Photo via The State Bar of Nevada

The area of ethics, in particular, can be quite messy. But that mess can be a tremendous opportunity for engaging students and preparing them for the real world.

I am sharing with you today an immigration ethics realothetical that you could use in the classroom. It goes like this:

You are an immigration lawyer. A new client comes to your office for an initial consultation. The client is in removal proceedings and has weak claims to relief. During the course of your discussion, the client discloses that he was the victim of sexual assault while in jail. You suddenly see a genuine opportunity for relief – perhaps this person could be eligible for a U visa. You begin to ask questions about the crime and, in particular, whether the crime was reported or prosecuted. After hearing all about the heartbreaking circumstances of the crime, the victim tells you the name of his assailant. That name rings a bell – you have a client by the same name. But, you can’t be sure. You ask for the description of the assailant. The description you get confirms your fears, it’s your client. What red flags do you see? What should you do?

This is a realothetical. A real-life immigration lawyer was faced with this horrifying conundrum.

As for the first question (red flags), here are some prompts for starting classroom discussion:

• Can you represent the new client?
• Can you help the new client obtain representation with someone else?
• What if the result would harm your current client who would, after all, likely lose avenues for relief if convicted of the crime?
• Can you continue to represent your old client?
• What can you tell your old client about what you learned from the new client?

In terms of the second question (what should you do) consider the following prompts:

• Where would you look for advice?
• Imagine you practice in a small firm, would you ask colleagues within your firm for advice?
• Imagine you’re a solo practitioner. Would you seek advice from other immigration attorneys? How?
• Did you know that state bar associations offer ethics hotlines? Would you call the hotline?

In terms of the real-world resolution of this realothetical – the immigration attorney terminated the consult with the new client and disclosed there might be a conflict of interest preventing the attorney from continuing to offer representation. The attorney contacted the bar hotline and sought advice from immigration attorneys. He was able to refer the “new” client to alternative counsel. He is prohibited from disclosing anything (including the potentially imminent criminal charges) to the client-assailant, whose own immigration case is ongoing.

I look forward to hearing from folks with other realotheticals that you think would make good classroom exercises.

-KitJ