Confidentiality when sending original documents to the client– avoiding unnecessary disclosure
Representation in immigration matters frequently, if not routinely requires taking possession of original client documents such as passports, green cards, and notices of action. These documents may then be required by the client overseas. The duty of confidentiality requires sending these documents in the most secure manner possible.
Lawyers in Washington must not “reveal confidential client information” unless the client gives informed consent, the disclosure is impliedly authorized, or the disclosure is expressly permitted.2 The comments to this rule explain that “a lawyer must make every effort practicable to avoid unnecessary disclosure of information relating to a representation, to limit disclosure to those having the need to know it, and to obtain protective orders or make other arrangements minimizing the risk of avoidable disclosure.”
Standard mail is less secure than a service that transfers custody of documents between the law firm and the client with confirmed delivery because standard mail is vulnerable to theft and misrouting. The USPS Inspectors initiated 1,752 investigations to non-employee theft in 2014, leading to 2,237 convictions. Data on employee theft is less transparent, but can only be completely eliminated by in-hand delivery from the law firm to the client. This option is impracticable in many immigration cases due to the size of the United States and clients’ desires to reside anywhere herein.
Additionally, standard mail may be misrouted. Although data on misrouted mail was not located by my meager search efforts, I am confident that readers have personal experience with misrouted mail. Our office, for example, has received misrouted documents from both standard mail and private couriers. The risk of misrouting may be similar between standard mail and courier services may be similar, however, tracking features mitigate against this risk.
Since Standard mail is less secure than a courier or USPS premium service, using standard mail to return documents to a client appears to fall short of making “every effort practicable to avoid unnecessary disclosure.” More secure methods are offered by the US Postal Service, FedEx, DHL, and other private couriers. Additional steps to avoid unnecessary disclosure are suggested below.
Safeguarding property when returning documents to the client
Washington lawyers must promptly deliver to the client the property which the client is entitled to receive.3 Comment Five to this rule states that client property “includes original documents affecting legal rights.” The promptness requirement necessitates the use of a courier or express mail service when returning original documents (such as passports, birth certificates, and notices from USCIS) to the client.
Confidentiality and diligence when sending documents to government agencies for adjudication
As discussed above, confidentiality must be protected when returning documents to a client. This duty applies with equal force when sending documents to government agencies for adjudication because the risk of theft or misrouting is the same. The duty of diligence also requires use of the fastest shipping method reasonably available. In many cases this means sending petitions and applications by overnight courier, however, slightly slower options may still be reasonable (and less expensive) if they can be used without placing the client at risk of missing a deadline.
Petitions and applications for benefits under the Immigration and Nationality Act are frequently limited in time, and clients almost always benefit from filing as soon as possible.
For example, with limited exceptions only 65,000 H-1B visas are available each year.4 For the past 3 years, USCIS began accepting petitions for this immigration benefit on April 1st and the “H-1B cap” was reached within days. For those that filed too late, the opportunity to file a petition is lost. As another example, the Child Status Protection Act fixes a beneficiary’s age on a specific filing date. Beneficiaries who turn 21 years old prior to the filing date due to slow delivery will lose the opportunity to obtain a visa, potentially resulting in a multi-year waiting period to re-apply. In more severe cases, the lost opportunity may be permanent.
Optional express delivery is offered by the three delivery service providers mentioned above as well as many others.
Advising the client to use courier or premium USPS service when sending original documents
A pair of ethical duties, diligence and communication, require the use of a courier service in immigration matters. Washington’s Rules of Professional Conduct require lawyers to “act with reasonable diligence and promptness in representing a client.”6 We must also keep clients reasonably informed about the status of their matters.
USCIS requires original signatures on Form G-28. Immigration Court and the BIA require similar forms. At some point during representation, the duty to keep a client informed will thus require communicating the following message: “your original signature is required on the enclosed (or attached) forms.” This communication may be sent to a client by e-mail8, but must be returned in hard copy format. Diligence requires an instruction to return these documents by the fastest, secure method possible to achieve the goal of timely securing immigration benefits.
If the client is in the office to sign these documents, then a delivery service may not be necessary, but distance between clients and lawyers is nearly ubiquitous in immigration practice. Therefore, a lawyer representing a client in an immigration matter is required to instruct clients to use a courier or express mail service in some instances to ensure that the necessary documents reach the client in a timely manner.
Conclusion – proposed best practice
The duties of diligence and communication require using a courier service in some instances, however, the lawyer must still honor the duties of confidentiality and safeguarding property. To honor these duties, we propose the following best practice for returning original documents to clients:
- Documents sent to the client by courier should be enclosed in a separate envelope.
- This envelope should be enclosed inside the courier envelope with a separate written notice, stating the following:
a. [CLIENT] is the only intended recipient of the enclosed documents
b. If you are not [CLIENT] do not open the enclosed envelope.
c. If you are not [CLIENT] please notify our office immediately by calling ###-###-#### or sending an e-mail to email@example.com
We also propose the following instructions when requesting the return of originally-signed documents from clients:
- The enclosed (or attached) forms are attached for your review.
- Please read these documents carefully and contact our office immediately if any information is incorrect.
- If you find that all of the information is correct, please print at least two copies of this form, sign each copy at:
a. Field ## on page ##;
b. Field ## on page ##; and
c. Field ## on page ##.
- Immediately after signing both pages, please return both signed copies to our office via overnight courier or express mail. We recommend using a tracking service when sending these forms so that we can monitor their movement.
By following these practices, immigration attorneys can reduce the risk of accidental disclosure and increase the likelihood of obtaining immigration benefits for the client.