As U.S. Immigration and Customs Enforcement implements President Donald Trump’s immigration agenda, it has become progressively brazen and aggressive in its efforts to locate and detain immigrants. An ICE agent showed up at one law firm and requested information about a client. Another lawyer was stopped at the border. Let’s talk about what you can and should do if ICE shows up at your law office looking for information about your clients.
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Can ICE Demand Client Information from a Lawyer?
Q. ICE agents are at my door, asking for information about my client. Can ICE even do that?
A. ICE agents can try anything they want, but they cannot get information about a client from the client’s lawyer or law office. Information about your clients is protected under Rule of Professional Conduct 1.6, Confidentiality, and under the attorney-client privilege. It has been found that even the mere name of a client is protected under Rule 1.6. ABA Model Rule 1.6(a) says:
A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by [the exceptions].
Model Rule 1.6(b)(6) permits disclosure “to comply with other law or a court order,” so an ICE agent without a court-issued warrant or order does not get client information.
You’ll want to check the exact language of your jurisdiction’s professional conduct rules to see how it is presented. You may also want to check the Comments to that rule for further guidance.
Q. What happens if ICE shows up at my law office and I’m not there?
A. Model Rule 5.1(b) requires any lawyer with “direct supervisory authority over another lawyer” to “make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.” Similarly, Model Rule 5.1(b) directs “a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure [their] conduct is compatible with the professional obligations of the lawyer.” Both rules set out several ways a lawyer is responsible for a subordinate lawyer or staff member’s actions. In other words, it is your duty, if you are a leader in the firm, to ensure your staff know that they do not give an ICE agent any information about clients without a valid search warrant.
In fact, it is a fair decision to tell staff to never give an ICE agent information about clients, even with the presentation of a warrant, and that they must wait for a lawyer to return to the office, if at all possible.
The Confidentiality Rule vs. Attorney-Client Privilege
Sometimes the attorney-client privilege is conflated with confidentiality because it has a similar effect and is talked about in a similar manner, but it is a separate doctrine that protects the confidences of a client disclosed to their lawyer from being used in court. This privilege is a separate, more narrow doctrine that “protects from compelled disclosure the substance of a lawyer-client communication made for the purpose of obtaining or imparting legal advice or assistance, and applies only in the context of a legal proceeding governed by the rules of evidence.” See Annotated Model Rules of Professional Conduct, 10th Edition, p. 130.
The rule of client-lawyer confidentiality [is much broader because it] applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.
See ABA Model Rule of Professional Conduct 1.6, Comment 3.
Confidentiality is a cornerstone of the legal profession. Protecting the sanctity of this fundamental aspect of the client-lawyer relationship is an important consideration.
We tell them we won’t tell, so we should do everything in our power not to tell.
Attorney-Client Confidentiality Exceptions for ICE
Q. My client is undocumented. Is there an exception that requires me to share information about clients with ICE?
A. No. In Model Rule 1.6(b)(1-3) are exceptions that relate to crimes, including:
- To prevent reasonably certain death or substantial bodily harm.
- To prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another, where the client uses a lawyer’s services.
- To mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud, where the client uses a lawyer’s services.
Notice that those are very high bars. Most clients would not fit under these exceptions.
Recognize also that some jurisdictions have stronger language and narrower exceptions. The state of Washington’s Rule 1.6(b) includes the exception “may reveal information relating to the representation of a client to prevent the client from committing a crime.” (Emphasis added.) This is not a mandatory disclosure and only includes the prevention of a crime, not disclosure of a crime already committed.
California’s Rule 1.6 (probably the most protective in the nation) has a single exception: “A lawyer may, but is not required to, reveal information …” to the extent they reasonably believe “necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in death of, or substantial bodily harm to, an individual.” The rule is even explicit that not revealing under these circumstances is not a violation of the rule. See Cal. RPC 1.6(b), (e).
Administrative Warrants vs. Judicial Warrants from ICE
Q. ICE presented me with a warrant. Do I have to give them everything?
A. Not necessarily. If the client consents to the disclosure, you would. If the client does not consent, determine what kind of warrant ICE is presenting.
- If it is an administrative warrant, it may permit arrest or seizure, but not searching, which means private spaces are protected.
- Even if it is a judicial warrant, you could push the envelope and require the judge to affirmatively tell you to release the information.
You may decide that the warrant is too broad and argue that information should be redacted to comply with privacy and ethics rules. Again, review your jurisdiction’s confidentiality rule. Call the ethics line of your state. Review your state ethics opinions. Engage a lawyer who specializes in this issue to give you legal advice.
Traveling Outside the U.S.? Check Your Devices
Lawyers and law firm staff should be prepared for ICE encounters outside the law office too. If you are reentering the country and U.S. Customs and Border Protection detains you to request information about your clients from your laptop or cellphone, you have a right to refuse and leave the device with them. CBP is not supposed to access what is in the cloud, but often that is not clear on the actual applications, and there may be some data on your phone. So, before you leave the country, minimize exposure by reducing what you have on your devices.
Action Plan: Be Prepared for ICE
- Bone up on the rules for your jurisdiction and become familiar with ICE tactics. The AILA’s Think Immigration blog is a good resource.
- Stay informed about what trends we are seeing and let your colleagues know what you are seeing.
- Train your office staff on how to respond to such a request. Give them clear language from the rule to repeat and have them refer any ICE agent to you.
- Do not give ICE agents information about clients without them producing a valid warrant or court order. Check the veracity of the warrant and limit any disclosure to only those things in the warrant.
Note: A previous version of this article was published by AILA on March 14, 2025. This version is published with permission from the American Immigration Lawyers Association and all rights are reserved.
Image © iStockPhoto.com.
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