The new rules apply to "practitioners," which includes both attorneys and representatives as defined in 8 C.F.R. section 1.1(j).  The agencies decided not to apply these rules and disciplinary procedures to INS attorneys and immigration judges because, as employees of the U.S. Dept. of Justice, they are subject to a separate disciplinary system overseen by the department’s Office of Professional Responsibility.  The agencies also note that 28 U.S.C. section 530B subjects Justice Dept. attorneys to state laws and rules, as well as to local federal court rules, to the same extent as other attorneys.

The rule establishes 13 grounds for discipline but also cautions that "these categories do not constitute the exclusive grounds for which disciplinary sanctions may be imposed in the public interest."  The 13 grounds are summarized below:

1.  For attorneys, charging or receiving a "grossly excessive" fee for services; for nonattorney representatives, charging or receiving any fee for specific services (although accredited representatives and law students may be regularly compensated by their organizations).

2.  Bribing or attempting to bribe or coerce any person to affect a case.

3.  Knowingly or recklessly making a false statement concerning a material and relevant matter in a case.

4.  Soliciting professional employment for monetary gain (communications with prospective clients must be marked as "advertising material" and may not be distributed in person or around the premises of any buildings where an immigration court is located).

5.  Representing clients after having been disbarred or suspended, or having resigned with an admission of misconduct, from the bar of any state or territory, any federal court, or any executive department or other governmental unit.

6.  Knowingly or recklessly making a false or misleading statement about one’s qualifications or services.

7.  Engaging in "contumelious or otherwise obnoxious conduct with regard to a case in which the practitioner acts in a representative capacity," where the conduct would constitute contempt of court in a judicial proceeding (the EOIR intends to require a finding of contempt, once the agency promulgates regulations to govern the use of contempt power by immigration judges).

8.  Being found guilty of, or pleading guilty or nolo contendere to, a serious crime, which is defined to include any felony as well as enumerated lesser crimes, including crimes involving interference with the administration of justice, misrepresentation, fraud, dishonesty, and theft.

9.  Knowingly or recklessly certifying falsely that a document is a true and complete copy of an original.

10.  Engaging in frivolous behavior (as defined in the regulation) in a proceeding before an immigration court, the BIA, or any other administrative appellate body.

11.  Engaging in conduct that an immigration judge or the BIA finds constitutes ineffective assistance of counsel, provided that a disciplinary complaint is filed within one year of the ineffective assistance finding.

12.  Repeatedly failing to appear for scheduled hearings in a timely manner and without good cause.

The notice of intent to discipline must contain a statement of the charge(s), a copy of the preliminary inquiry report, and the proposed disciplinary sanctions, and be served by personal service, as defined in 8 C.F.R. section 103.5a.  A copy of the notice will also be forwarded to the other agency (e.g., for complaints filed with EOIR, a copy is forwarded to INS), which may submit a written request to the BIA that any discipline imposed against the practitioner apply to restrict his or her practice before both agencies.

The practitioner must file a written answer with the BIA within 30 days of the notice’s date of service.  The practitioner must respond to each allegation in the notice and state in the answer whether he or she requests a hearing.  Practitioners who in their answer fail to request a hearing will be deemed to have waived their right to one.  Failure to timely file an answer will constitute an admission of the allegations and preclude a later request for a hearing. In such cases the BIA will issue a final order adopting the recommended sanctions, unless they should be modified in the interests of justice or for other reasons.  The regulations allow a practitioner to file a motion to set aside a final order entered pursuant to a failure to answer only in very limited circumstances; the motion must be filed within 15 days of the service of the final order, and it must show that the failure to file an answer was due to "exceptional circumstances."

In cases where a hearing is requested, the chief immigration judge will appoint an immigration judge to conduct the hearing.  Alternatively, the director of the EOIR may appoint an administrative law judge (ALJ) to hear the case.  No IJ or ALJ can serve as the adjudicating official in a case where he or she is the complainant, nor can an IJ hear a case involving a practitioner who regularly appears before that IJ.  The adjudicating official will designate the time and place of the hearing and must give the practitioner "adequate time to prepare his or her case in advance of the hearing."  The official may schedule a prehearing conference to narrow issues in the case.  Settlements reached after a notice of intent to discipline has been issued must be approved by the adjudicating official, or, in default cases, by the BIA.

At the disciplinary hearing, the practitioner may be represented by counsel, at no expense to the government, and may examine and object to evidence offered by the government, cross-examine witnesses for the government, and present evidence and witnesses on his or her own behalf.  The government will have the burden of proving the allegations by "clear, unequivocal, and convincing" evidence.  After the hearing, the adjudicating official will issue a decision, which may be appealed to the BIA.  The official’s decision becomes final and takes effect only if appeal is waived or no appeal is timely filed.

Appeals of disciplinary decisions are governed by the EOIR regulations for BIA proceedings.  The BIA’s decision will constitute a final administrative order that must be served by personal service.  A final order imposing discipline will not take effect until at least 15 days after service in order to allow the practitioner an opportunity to comply with the terms of the order.  Sanctions that may be ordered include permanent expulsion from practice before the BIA, the immigration courts, the INS, or before all three authorities; temporary suspension; and public or private censure.  There is also a procedure for practitioners to be reinstated to practice after they have been disciplined.

The final rule also provides for the immediate suspension of practitioners who have been found guilty of, or have pleaded guilty or nolo contendere to, a serious crime, or who have been disbarred or suspended, or who have resigned from practice before the highest court of any state, territory or other governmental entity, or before the federal courts.  The regulations impose a duty on practitioners to notify the EOIR and the INS of any such conviction or order imposing discipline for professional misconduct occurring after the final rule takes effect.  (Oddly, the rule requires practitioners to notify the EOIR of events that occur on or after Aug. 28, 2000, but to notify the INS of events that occur on or after July 27, 2000.)  However, convictions that occurred prior to the date the final rule was issued also constitute grounds for discipline under the rule.

In cases where the general counsel (of either the INS or the EOIR) files a petition for immediate suspension with the BIA, including a certified copy of a court record finding a practitioner guilty of a serious crime or subject to discipline or resignation, the BIA will immediately suspend the practitioner from practice, even if the practitioner is appealing the conviction or disciplinary order.  A summary disciplinary proceeding may then be initiated.  However, such a proceeding may not be concluded until all direct appeals from any criminal conviction have been completed.  The summary proceedings based on a conviction will concern only whether the conviction took place, and practitioners may not collaterally challenge a conviction.  In summary proceedings concerning disbarment or suspension orders, practitioners will be allowed to challenge the orders.

The final rule takes effect on July 27, 2000.  In conjunction with the rule’s issuance, the EOIR has promulgated a complaint form (EOIR-44) and has revised the forms for notice of entry of appearance before the BIA and the immigration courts (EOIR-27 and -28) to collect more detailed information regarding the bar membership and standing of practitioners.