WHEREAS, it is the mission of the Philadelphia Bar Association to serve the profession and the public by promoting justice, professional excellence, and respect for the administration of justice, and in so doing, the Association strives to protect the rights of parties and third parties to participate in the legal system; and
WHEREAS, there are approximately 24 million non-citizens living in the United States, roughly half of whom do not have authorized legal status (“unauthorized immigrants”)1; and
WHEREAS, federal authorities have declared and acted on a commitment to aggressively enforce immigration law,2 and
WHEREAS, the Philadelphia Bar Association recognizes that such enforcement efforts create a threat of negative immigration consequences, whether perceived or actual, that may deter the participation of both unauthorized immigrants, legally authorized immigrants, and citizens from accessing the courts; and
WHEREAS, such a threat, perceived or actual, may deter the participation of a substantial population from accessing the courts, appearing as witnesses; or cooperating with law enforcement investigations; and
WHEREAS, Pennsylvania Rule of Professional Conduct 3.4 cmt. [1] acknowledges that the integrity of our adversary system depends on lawyers’ ability to marshal evidence on their clients’ behalf; Rule 4.4 requires basic respect for the rights of third parties, and Rule 8.4(d) prohibits lawyers from engaging in conduct that is prejudicial to the administration of justice; and
WHEREAS, the Philadelphia Bar Association’s Professional Guidance Committee issued Formal Opinion 2025-1 (Invoking Immigration Status in Legal Proceedings) to clarify that the Pennsylvania Rules of Professional Conduct forbid attorneys from questioning and/or invoking the immigration status of participants in legal proceedings when the purpose is to prevent a person from participating in the legal system; and
WHEREAS, these existing Rules promulgated by the Supreme Court of Pennsylvania set a firm foundation that should not be eroded, but can be further improved to protect access to justice; and
WHEREAS, the Preamble to the Rules clarifies that the “Comments do not add obligations to the Rules but provide guidance for practicing in compliance with the Rules” and help illustrate the meaning and purpose of the Rules; and
WHEAREAS, the proposed Comment [2] to Rule 4.4 would clarify that a lawyer who questions or invokes a person’s immigration status or reports a person to U.S. Immigration and Customs Enforcement (ICE) when the lawyer’s purpose is to intimidate, coerce, or obstruct that person from participating in a legal proceeding violates the Rules of Professional Conduct; and
BE IT FURTHER RESOLVED, that the Philadelphia Bar Association urges the Honorable Justices of the Supreme Court of Pennsylvania to amend Rule 4.4 as follows:
[2] The duty imposed by paragraph (a) of this Rule includes a lawyer’s assertion or inquiry about a third person’s immigration status when the lawyer’s purpose is to intimidate, coerce, or obstruct that person from participating in a civil or criminal matter. Issues involving immigration status carry a significant danger of interfering with the proper functioning of the justice system. When a lawyer is representing a client in a civil or criminal matter, a lawyer’s communication to a party or a witness that the lawyer will report that person to immigration authorities, or a lawyer’s report of that person to immigration authorities, furthers no substantial purpose of the civil adjudicative system if the lawyer’s purpose is to intimidate, coerce, or obstruct that person. Sharing personal information with federal immigration authorities, including home address, court hearing dates, citizenship or immigration status, or place of birth, absent a court order, with the intention of facilitating civil immigration arrests is conduct that constitutes a report of a person to immigration authorities for purposes of this Rule. A communication in violation of this Rule can also occur by an implied assertion that is the equivalent of an express assertion prohibited by paragraph (a).
Lawyers employed by federal immigration authorities engaged in authorized activities within the scope of lawful duties shall not be deemed in violation of this Rule unless there is clear indication of no substantial purpose other than to intimidate, coerce, or obstruct a third person from participating in a legal matter.
Current comments [2]and [3] shall be renumbered [3] and [4].
BE IT FURTHER RESOLVED, that the Chancellor and/or the Chancellor’s designee(s) shall communicate the Philadelphia Bar Association’s position recommending adoption of the proposed Comment [2] to Rule 4.4 or any revised or similar proposal to the Supreme Court of Pennsylvania, the legal profession, the media, and the public, and to take such other action as necessary to effectuate this resolution.
PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
Adopted: December 18, 2025
1 Batalova, Jeanne, Frequently Requested Statistics on Immigrants and Immigration in the United States, Migration Policy Institute (March 12, 2025).
2 See, e.g., DOJ Memorandum, Interim Policy Changes Regarding Charging, Sentencing, And Immigration Enforcement (Jan. 21, 2025).
