Managing Ethical Issues in the Context of Dual

RepresentationDelisa J. F. BresslerM. Nicole Morrison

Who is(are) the Client(s)?

Dual Representation

Bruce Hake’s Cautious Approach

Cyrus Mehta’s Golden Mean

Advance Waivers & Informed Consent

Common Scenarios

Session Highlights

Texas – A client is a person or legal entity who “is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from that lawyer.” Rule 503 of the Texas Rules of Evidence, definitions relating to attorney-client privilege.

• Particularly in cases involving change of status, extension of status, or contact with the beneficiary/employee, it is very likely that the beneficiary/employee will be considered a client as well as the petitioner/employer, because it is very likely that you are rendering the beneficiary/employee legal services.

Who Is(Are) the Client(s)?

• A lawyer treats only one party, usually the petitioning employer, as the client, and practices as though the beneficiary/employee is not a client.

• How simple is this solution?

“Simple Solution”

• Do you send questionnaires to the beneficiary?

• Does the beneficiary log into your website to complete a questionnaire?

• Do you provide advice, consultation, and/or instruction to the beneficiary, such as for visa application, spousal work authorization, child age-out issues?

• Do you advise the beneficiary on the types of documentation required to prove eligibility for the EB-2 category? Do you draft employment verification letters to obtain from previous employers?

• Does the petition involve a request for a change of status or extension of status?

If you answered “yes” to any of these, the beneficiary/employee (as well as the employer) is probably your client.

Do You Represent Only the Employer?

• If you represent an employee in a self-petitioning process and are not the current or former counsel for the employer in other immigration matters, you should be able to limit your representation to the employee by communicating only with the employee and not preparing documents for the employer to sign.

• Actions that suggest you represent the employer, too:

– You prepare a petition or other documentation to be signed by the employer.– You advise on acceptable documentation for completion of Form I-9.– You advise on the petitioner’s document requirements or the implications of

other immigration issues.– You meet jointly with the employer representative and the employee for a

consult.

Do You Represent Only the Employee?

• Considering the nature of our practice, and the workflows we put in place to prepare cases most efficiently (e.g. direct communication and consultation with employee/beneficiary), dual representation is a fact of life for us.

• The “Simple Solution” may not be a good solution for your practice at all, let alone a simple one.

Dual Representation

• Model Rule and Oklahoma Rule 1.7: A lawyer shall not represent a client if the representation would involve a “concurrent conflict” of interest unless the lawyer is able to do so competently and obtains informed consent.

• A concurrent conflict exists if “the representation of one client will be directly adverse to another client, or there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client . . .”

When Is Dual Representation Permitted?

• Texas Rule 1.06: A lawyer shall not represent a client if the representation

– “involves a substantially related matter in which that person’s interests are materially and directly adverse to the interests of another client of the lawyer or the lawyer’s firm; or

– reasonably appears to be or become adversely limited by the lawyers or law firm’s responsibilities to another client or to a third person or by the lawyers or law firm’s own interests.”

• Exception: “ . . . if the lawyer reasonably believes the representation of each client will not be materially affected; and each affected or potentially affected client consents to such representation after full disclosure of the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any.”

When Is Dual Representation Permitted?

• Texas Rule 1.06 also clarifies that a lawyer may withdraw from representation of one or both parties should a conflict arise.

• “ . . . if multiple representation properly accepted becomes improper under this Rule, the lawyer shall promptly withdraw from one or more representations to the extent necessary for any remaining representation not to be in violation of these Rules.”

When Is Dual Representation Permitted?

• New Mexico Rule 16.106: “A lawyer shall not represent a client if the representation of that client will be directly or substantially adverse to another client, unless:– The lawyer reasonably believes the representation will not

adversely affect the relationship with the other client; and– Each client consents after consultation. The consultation

shall include explanation of the implications of the common representation and the advantages and risks involved.”

When Is Dual Representation Permitted?

• New Mexico Rule 16.109: “A lawyer who has formerly represented a client in a matter shall not thereafter:– represent another person in the same or substantially

related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation; or

– use information relating to the representation to the disadvantage of the former client except as Rule 16-106 would permit with respect to a client or when the information has become generally known.”

When Is Dual Representation Permitted?

• If there is a petitioner and beneficiary, there is a dual representation situation unless both parties are represented by their own counsel.

• An “advance waiver of conflicts” is likely ineffective as to the foreign national beneficiary/employee.

• Accordingly, if a conflict arises and cannot be resolved, the lawyer must withdraw from representation of both parties and may not continue to represent one party in the same or related matters as the original dual representation.

• “Dual Representation in Immigration Practice, Ethics in a Brave New World: Professional Responsibility, Personal Accountability, and Risk Management for Immigration Practitioners. Copyright ©2004 Bruce A. Hake and American Immigration Lawyers Association (www.aila.org.)

Bruce Hake’s Cautious Approach

• If there is a petitioner and beneficiary, there is likely a dual representation situation.

• In many cases in immigration law, dual representation can be managed so as to anticipate and avoid conflicts, resolve conflicts, or at least permit limitations on the representation of one of the parties (employee) to allow the continued representation of the other party (employer) in the event a conflict arises.

• The Golden Mean approach relies on informed consent, limitation on the scope of representation as to the beneficiary/employee, and advance waivers of conflicts signed by the beneficiary/employee.

• C. Mehta, “Finding the “Golden Mean” in Dual Representation – Updated” Immigration Briefings (Thomson West, Aug 2006).• C. Mehta, “Counterpoint: Ethically Handling the Conflict between Two Clients through the ‘Golden Mean,” 12 Bender’s Immigr. Bull. 1147 (Aug. 15, 2007).

Cyrus Mehta’s “Golden Mean”

• Obtain “informed consent” for dual representation.• Obtain “informed consent” for the limitation on representation

of the employee (possibly even to the specific matter at hand.)• Set expectations before work begins.• Spell out the implications, risks, advantages.• Provide specific examples of the types of conflicts that may

arise.• Explain how conflicts will be resolved.• Obtain written consent to the dual representation, limitation

on the scope of representation, and the steps to be taken when conflict arises.

Pursuing the “Golden Mean”

• Model Rule 1.2, OK Rule 1.2, and NM Rule 16-102: “A lawyer may limit the scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent.”

• TX Rule 1.02: “A lawyer may limit the scope, objectives and general methods of the representation if the client consents after consultation.”

Scope of Representation

• You handled the H-1B petition that Darn Good Oil Company filed for Rosco Waldorf. Later, Mr. Waldorf contacts you because he is considering changing jobs (and employers) but he wanted to check with you first to discuss the timing and logistics of the H-1B Change of Employer process.

Scenario #1

• Darn Good Oil Company starts the permanent residency process. During the PERM process, Mr. Waldorf requests information regarding the applicants for his position and wants to know exactly how Darn Good Oil expects to disqualify them. He would like to review the resumes to ensure that all proper reasons for disqualification are identified.

Scenario #2

• During the H-1B extension process, Mr. Waldorf reveals that he has had a DWI conviction, but he does not want you to tell his employer. He also mentioned he has upcoming international travel and will need to apply for a new H-1B visa at the Consulate.

Scenario #3

• At the I-140 stage of the permanent residency process, Mr. Waldorf enters his case number on the CIS website and learns of an RFE on the I-140 even before you and Darn Good Oil Company receive the RFE.

• He demands to be notified immediately of the contents of the RFE and would like to see the response before it is submitted. The RFE turns out to be an “ability to pay” RFE. Darn Good Oil Company is a relatively small, privately-held company and does not want to disclose financial documentation.

Scenario #4

• Mr. Waldorf’s priority date becomes current. The I-140 is not yet approved, but the Darn Good Oil Company and Mr. Waldorf are confident your RFE response will win the day. At the company’s request, you prepare Applications to Adjust Status for Mr. Waldorf and his family.

• After Mr. Waldorf receives his EAD, he gives notice to his employer and says he will “port” his permanent residency process to a new employer. Meanwhile, the I-140 is still pending.

• Mr. Waldorf demands a copy of his entire file. What do you do?

• He also asks you not to withdraw the pending I-140. He says there is no requirement to withdraw, so doing so would hurt him for no reason. Of course the company wants to withdraw the I-140.

Scenario #5