Sections 5 and 6 of Alabama’s law says “an officer of a court” cannot block the enforcement of immigration laws by “limiting communication between its officers and federal immigration officials.” Because the law interprets “an officer of a court” to include lawyers, attorneys worry this means officials could force them to turn over information about their clients despite the clients’ right to attorney-client privilege. Even if the state bar association promises to not “pursue ethical charges” against attorneys, it probably would not be enough:
[Lawyers] can either follow their ethical code or follow the law, but not both. Failure to follow the immigration law is a crime and can result in civil penalties of up to $5,000 per day. [...]
Susan Pace Hamill, an ethics professor at the University of Alabama School of Law, said reassurance that the state bar would not pursue ethical charges against lawyers for following the immigration law is little comfort.
“That doesn’t cut the mustard for an attorney with integrity,” Hamill said. “Without attorney-client confidentiality, there is no effective legal representation.”
The Alabama Rules of Professional Conduct generally prohibits lawyers from disclosing client information except “to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm.”
Attorneys should not have to choose between breaking the law or their ethical code simply to provide fair representation for their clients. Nick Roth, president of the Morgan Count Bar Association in Alabama, told the Decatur Daily that most lawyers would go against HB 56 and protect their clients. “There are many, many lawyers in the county who would want to challenge the law before they would be willing to violate a client’s privilege,” he said.
House Majority Leader Micky Hammon (R), the state House sponsor of Alabama’s extreme anti-immigrant law, said it had not occurred to him that attorneys could be included as officers of the court under the law. “I’m sure there will be several definitions that we will have to look at and clarify,” Hammon said. “We were expecting that.” Revisiting the language later might not be enough for those who could be affected. The challenges to HB 56 continue to work their way through the legal system, with one state judge suggesting that part of the law is unconstitutional and the Eleventh Circuit federal appeals court temporarily blocking other parts while waiting on a full hearing. In the meantime, undocumented immigrant clients will have to put their hopes in ethical lawyers to protect their right to attorney-client privilege.