The Trump administration’s attacks threaten children’s safety – and legal ethics
This is a guest post by Shannon Fyfe, Ph.D, J.D., Associate Professor of Law, Washington and Lee University.
Unaccompanied migrant children arrive at our border alone, fleeing dangerous situations, and remain one of the most isolated and vulnerable groups of people in this country. The Trump administration has decided to exploit their position by threatening their access to legal representation and making it impossible for their attorneys to act in their interests. We should be very worried about these children, and about what this means for the U.S. legal profession’s ideals of public service and zealous representation of clients.
For eight months, Trump directed his Office of Refugee Resettlement (ORR) under Health and Human Services (HHS) to withhold $65 million in completed legal services for these children until a court order recently forced them to issue payments. He held the funds hostage hoping to barter for confidential information about the vulnerable clients represented by Acacia Center for Justice and its network of nearly 100 legal service providers across the country.
This demand for confidential information is illegal, asks attorneys to violate their most fundamental ethical duties, and puts children at risk of being trafficked, abused, and exploited by our very government. The network’s spine to stand up to Trump cost them as some offices had to close their doors entirely.
Serving vulnerable children, protecting them from dangers, and acting in their best interest, is nothing new to the American people. Under Section 235(c) of the 2008 Trafficking Victims Protection Act and Section 462(b) of the 2002 Homeland Security Act, ORR is required to provide legal representation to unaccompanied kids “to the greatest extent practicable.” For nearly two decades, through both Republican and Democrat administrations, Congress fulfilled these obligations to protect these vulnerable children, and funded legal representation for unaccompanied migrant children, including through Acacia.
For five-and-a-half years, Acacia submitted their invoices to ORR with copious cost documentation and receipts, with all identifying case information and personally identifiable information redacted. ORR did not require any details on children’s individual legal eligibility, case postures, or legal case summaries to fund representation for unaccompanied children. Suddenly, that wasn’t enough.
In the final months of the latest contract with Acacia, ORR began demanding case-specific information for payment, months after the work had already been completed. This included receipts with identifying client information as to claim types sought, identification of the representing attorney not otherwise known to ORR, cost types specific to a case that might prejudice a client’s case if revealed, and unredacted mental and medical health evaluations relevant to children’s cases.
The attorneys representing unaccompanied migrant children have no legal authority to disclose this information to ORR, more importantly they are ethically obligated to keep such client information confidential. Under the Model Rules of Professional Conduct (MRPC), promulgated by the American Bar Association and adopted in some form by every state bar association in the U.S., an attorney “shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is implicitly authorized in order to carry out the representation or the disclosure is permitted [under a list of specific circumstances].”
Additionally, children constitute clients with “decision-making limitations,” and attorneys have a special duty of care to support such clients’ decision-making abilities within the attorney-client relationship. ORR’s demand for confidential information thus creates an untenable conflict for attorneys: lose funding for an ongoing or former representation of a client, or risk harming the client’s autonomy and/or interests. Choosing the latter option would also put attorneys at risk of sanctions from their respective state bar associations.
It isn’t difficult to connect the dots between this new demand for confidential information about children and Trump’s mass deportation agenda. Already, kid clients, close to obtaining temporary status such as Special Immigrant Juvenile Status, Trafficking Visas, and U visas for crime victims; were being fast tracked through immigration court dockets for deportation. Then, as Acacia continued to zealously defend its child clients, and uphold its legal ethics to protect their confidential information, Trump decided to not renew the contract and instead hand it over to an inexperienced and understaffed law firm and dubious anti-trafficking organization with no legal services expertise. The dismantling of protections for children, disruption in their experienced legal representation, and rogue attempt to contradict legal ethics, will ultimately result in vulnerable children being further harmed.
