Counterpoint: Ethically Handling Conflicts Between Two Clients Through The "Golden Mean"
First sentence:Hake conflates the two sentences in stating that such waivers will be effective only when they are given by experienced users of legal services and where the clients are represented by other lawyers. He posits that such is not the case with foreigners applying for U.S. immigration status. But this argument is more applicable to "general and open-ended" waivers in the second sentence. The examples that I had earlier cited involve specific and predictable conflicts that can be carefully proscribed in advance of the representation. Unlike open-ended waivers, these have a greater likelihood of being upheld. Moreover, the attorney-client relationship is contractual, and the sophistication of the client would be considered as only one of the factors, along with the fact that the client was informed about the potential conflict and the consequences of the waiver. Also, there is no question that a waiver requested by an employee, even if open-ended or blanket, would be more likely upheld against a corporation that might well be an experienced user of legal services. Even foreign national employee clients could be considered sophisticated users of legal services. It is not uncommon for foreign national employees to seek a second attorney's opinion when they are being represented by the employer's immigration attorney. Moreover, foreign nationals frequently participate in online discussion groups, which are often moderated by an attorney, and they are often able to acquire information on the latest developments with amazing alacrity. Also, foreign nationals have access to AILA members who are based in several countries around the world. Finally, advance waivers allow the parties to negotiate and explore how they would respond to various conflicts later. The client is already aware of the potential conflict. Should a conflict actually occur, the earlier advance waiver could legitimately pave the way for a concurrent conflict waiver.
The third sentence of ABA Formal Opinion 05-436 states:
Rule 1.7, as amended in February 2002, permits a lawyer to obtain effective informed consent to a wider range of future conflicts than would have been possible under the Model Rules prior to their amendment. Formal Opinion 93-372 (Waiver of Future Conflicts of Interest) therefore is withdrawn. [Footnote omitted]Thus, advance waivers should be examined in the context of ABA Model Rule 1.7, which is often cited by commentators to justify dual representation in immigration practice.
ABA Model Rule 1.7, titled Conflict of Interest: Current Clients, provides:
a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:Thus, the key issue in all representations concerning multiple clients, where there may be a potential for conflict, is the giving of "informed consent" by the affected client, be it in the initial representation or by an advance waiver or a waiver of a concurrent conflict.
Comment 18 to Rule 1.7 defines "informed consent" as follows:
Informed consent requires that each affected client be aware of the relevant circumstances and of the material and reasonably foreseeable ways that the conflict could have adverse effects on the interests of that client. The information required depends on the nature of the conflict and the nature of the risks involved. When representation of multiple clients in a single matter is undertaken, the information must include the implications of the common representation, including possible effects on loyalty, confidentiality and the attorney-client privilege and the advantages and risks involved [citations omitted].Finally, Comment 22 to Rule 1.7 elaborates on consents to future conflicts:
Whether a lawyer may properly request a client to waive conflicts that might arise in the future is subject to the test of paragraph (b). The effectiveness of such waivers is generally determined by the extent to which the client reasonably understands the material risks that the waiver entails. The more comprehensive the explanation of the types of future representations that might arise and the actual and reasonably foreseeable adverse consequences of those representations, the greater the likelihood that the client will have the requisite understanding. Thus, if the client agrees to consent to a particular type of conflict with which the client is already familiar, then the consent ordinarily will be effective with regard to that type of conflict. If the consent is general and open-ended, then the consent will ordinarily be ineffective, because it is not reasonably likely that the client will have understood the material risks involved. On the other hand, if the client is an experienced user of the legal services involved and is reasonably informed regarding the risk that a conflict may arise, such consent is more likely to be effective, particularly if, e.g., the client is independently represented by other counsel in giving consent and the consent is limited to future conflicts unrelated to the subject of the representation. In any case, advance consent cannot be effective if the circumstances that materialize in the future are such as would make the conflict nonconvertible under paragraph (b).Thus, a waiver that can comprehensively predict future adverse consequences will more likely be enforceable even where the client may not be an experienced user of legal services. Moreover, Hake characterizes New York State Bar Opinion 761 as "anomalous," which, he states, will require a separate article to distinguish, as it is "truly incompatible with established dual representation principles."
This opinion, one of the very few concerning immigration practice, reinforces and justifies the ability to effectively use advance waivers between two spouses. While this opinion, based on the facts presented, acknowledges that it was not possible to terminate the representation of the abusive husband unless he understood that the future conflict would include an allegation of abuse to support the wife's self-petition, the following extract, which supports advance waivers among non-experienced users of legal services, is worth noting:
A client's consent to future conflicts is "subject to special scrutiny.". The clients' advance consent must be to a conflict that is consentable and the consent must be informed. The future conflict must be described "with sufficient clarity so the client's consent can reasonably be viewed as having been fully informed when given" [citations omitted].Even prior to ABA Formal Opinion 05-436, there existed ABA Formal Ethics Opinion 93-372 (1993), which was withdrawn after the introduction of 05-436. The following is an extract from the withdrawn ABA Formal Opinion 93-372, which has been cited in New York County Lawyers Association Committee on Professional Ethics Formal Opinion Number 724:
[A] lawyer may ask for, and a client may give, a waiver of objection to a possible future representation presenting a conflict of interest that in the absence of a waiver the lawyer would be disqualified from undertaking. However, such a waiver must meet all the requirements of a waiver of a contemporaneous conflict of interest, and if the waiver is to be effective with respect to a future conflict, it must contemplate that particular conflict with sufficient clarity so the client's consent can reasonably be viewed as having been fully informed when it was given.D.C. Opinion 309, which followed 93-372, also approves of advance waivers, depending on one of two factors: either the client is represented by independent counsel or there are reasonable limits on the breadth of the waiver. The opinion does, however, state that in order to prevent inadvertent breaches of confidentiality, advance waivers are ineffective as to representations that are substantially related to the initial representation.
Oregon Formal Opinion No. 2005-122, which followed 05-436, is also instructive:
Nothing in Oregon RPC 1.7 prohibits a blanket or advance waiver. . . . See, e.g., ABA Formal Ethics Op No 05-436. Lawyer must be sensitive, however, to situations that were not contemplated in the original disclosure or that constitute nonwaivable conflicts. In the former situation, Lawyer would need to obtain the informed consent of each affected client as to the new conflict. In the latter situation, Lawyer would have to decline representation in the new matter that gives rise to the conflict. Oregon RPC 1.16(a)(1).Interestingly, Hake does not dispute the other technique advocated under the Golden Mean, which is limiting the scope of the representation. In fact, Hake makes reference to this possibility in his own articles without developing it. But even with respect to limiting the scope of the representation, the same argument can be made, as Hake has done with advance waivers, that it is per se "unethical" with respect to "vulnerable" foreign national clients. Model Rule 1.2(c) permits a lawyer to limit the scope of representation "if the limitation is reasonable under the circumstances and the client gives informed consent." It is thus inconsistent that Hake has so stridently opposed advance waivers but has not taken a similar position with regard to limited representation when the basis for their effectiveness under both is whether the client has given informed consent.
A good illustration of both a limited representation and an advance waiver arrangement being upheld was in Rymal v. Baergen. In that case, the employer, Clark, challenged the disqualification of its counsel in the Court of Appeals of Michigan based on a conflict of interest arising out of an employee's action alleging claims of sexual harassment and retaliation by the employer and a supervisor, Baergen. Counsel initially represented both Clark and Baergen. The Court of Appeals upheld the validity of the advance waiver against Baergen, which provided limited representation to him (filing an answer and affirmative defenses) and conditioned the representation on the fact that if a conflict arose counsel would cease representation. Counsel further made the supervisor agree in writing that if a conflict arose between him and the employer, counsel could continue to represent the employer notwithstanding the receipt of information subject to the attorney-client privilege. The Court analyzed the issues as follows:
We find that Clark's counsel fully explained the nature of the limited representation, filing an answer and affirmative defenses, and the parameters that would guide any further representation, i.e., the lack of any conflict of interest. Baergen specifically agreed and consented that if a conflict were discovered, counsel could continue representing Clark. Therefore, consistent with MRPC 1.9(a), there was consent after consultation. While we recognize that consent was given before a conflict of interest was revealed, the written agreement anticipated the possibility of such a conflict, and Baergen agreed that if a conflict arose, counsel could maintain representation of Clark. We further acknowledge that the consultation did not involve a discussion by counsel of the particulars of a conflict of interest for which consent was sought, as no conflict had yet been revealed to counsel. However, Baergen himself was obviously aware of the history and nature of MTD [a company he and the plaintiff founded while working for Clark] and his noncompete agreement with Clark, but he still executed the retention agreement, approving of Clark's continued representation by counsel even in the face of a conflict of interest.Also, in West Contra Unified School District v. RDS Architects, the California appellate court approved an advance conflict waiver against an architect. The law firm had originally represented the school district and architect to obtain additional funding from the State of California for a school redevelopment project. A waiver was obtained from the architect stating that, since the law firm almost exclusively represented school districts, it could not do anything for the architect that would create a conflict with the school district. When the architect threatened to sue the district, the law firm withdrew from representing the architect. Six years later, the school district represented by the law firm brought an action against the architect for breach of contract and professional negligence. In a disqualification motion against the law firm, the court upheld the prior advance waiver as it waived all existing and potential conflicts between the architect and the school district. The court held that an advance waiver to potential future conflicts may be upheld if the client was fully informed of the waiver, that "The party urging disqualification bears the burden of proving that 'it was not fully informed of the consequences'" of the waiver, and that "the opposing party must 'demonstrate that it "communicated information reasonably sufficient to permit the client to appreciate the significance of the matter in question."'"
Contrast these cases with Worldspan, LP v. Sabre Group Holdings, Inc., where the Northern District of Georgia held that a standard engagement letter was ambiguous and provided inadequate notice of directly adverse litigation, since the parties were not named and the circumstances were not adequately specified, etc. Moreover, the adverse representation was too remote in time (five years after consent) to have informed consent. Also, in Concat LP v. Unilever, P.L.C, the Northern District of California held that a boilerplate waiver was insufficient to demonstrate informed consent by the client, as it was extremely broad and intended to cover any eventuality, and it also had unlimited temporal scope. Even though the waiver stated that the firm would not engage in representation in a substantially related matter and involved a sophisticated client, the law firm would have to obtain a second waiver when the conflict arose, which it did not.
Analyzing Advance Waivers in the Context of Immigration Practice
Although these cases do not involve immigration practice, they usefully demonstrate circumstances under which advance waivers may or may not be upheld. Most of these cases involve disqualification motions on the ground that the clients were jointly represented, and after a conflict, one client, who was still represented by the original attorney, sued the other. This rarely happens in immigration practice. In the case of a conflict in immigration practice involving dual representation, the lawyer is left with the choice of attempting to resolve the conflict, attempting to successfully withdraw from representing one of the clients, or withdrawing completely from representing both the parties if the conflict cannot be resolved or is not consentable. In any event, it is important to draw upon principles from non-immigration-related cases due to the paucity of decisions and opinions involving conflicts in immigration practice. Moreover, the ethics rules have also not been designed specifically for immigration practice, yet immigration lawyers must abide by them like every other lawyer.
Consider these two emerging ethical issues confronting immigration practitioners today:
Representing Both a Petitioning Employer and a Beneficiary Employee When an Employee "Ports" to a New Employer off an Unadjudicated I-140 Petition
A unique ethical conundrum arises when the foreign national employee leaves and "ports" to another employer while the I-140 petition is still unadjudicated and the adjustment application has been pending for more than 180 days. If the USCIS issues a Request for Evidence (RFE) on the employment-based I-140 petition, the original employer would still need to respond even though the employee has left, and perhaps, the employer has no interest in hiring him or her back. In the event that this employee left the employer acrimoniously, the employer would not have any incentive to respond to the RFE, while the employee would clearly have a deep interest in the employer responding to the RFE.
The attorney who has represented the employer and employee will truly be caught in a conflict. A complete withdrawal will likely make matters even worse, especially for the employee. The new attorney for the employer (who has never had the employee as a client) will have every reason to even more rigidly refuse any cooperation to the departed employee. The employee, through his or her own new attorney, may aggressively assert an interest in the unadjudicated I-140 petition and demand that the employer continue to assist in the "portability" endeavor.
On the other hand, if the original attorney, who may be more in contact with the employer as a client, had predicted the conflict in advance, the employee would have less of an expectation for continued representation after the termination. In fact, the prudent way to handle this conflict would have been to obtain an advance waiver or a waiver contemporaneous to the conflict from both the employer and the employee clients and also limit the representation with respect to both. The waiver with the employee would allow the attorney to cease representation upon termination and provide no assistance with regards to the portability endeavor, and require the foreign national to seek new counsel in that regard. The waiver with the employer would allow the attorney to provide limited cooperation with the employee's new attorney in providing the notification of the RFE, if requested. The attorney, who is now representing only the employer, will have minimal involvement, since the Yates memo on AC21 portability, most fortunately for the employee, indicates that the examiner needs to adjudicate the I- 140 with an employee-centric analysis rather than an employer-centric analysis. Thus, the employer's ability to pay, or the existence of other corporate changes, will no longer be considered in determining whether the I-140 is approvable and the analysis will focus more on the employee's qualifications for the position stated on the labor certification. The original attorney thus becomes an intermediary in the dispute.
By staying with the employer client, the original attorney may have safeguarded the employer's interests (and benefited the employee) – in anticipation of a novel claim from the employee of having an interest in the unadjudicated I-140 – by providing limited cooperation to the employee's new attorney in responding to an I-140 RFE focusing on the employee's qualifications, and still ceasing representation of the employee client. Unlike the H-1B situation, there is no obligation for an employer to withdraw the I-140 petition upon termination, especially when the employee may be eligible for portability, and yet if the employee held H-1B visa status, the original attorney would have also effectuated a bona fide termination by withdrawing the H-1B petition pursuant to Amtel Group of Florida v. Yongmahapakorn.
Representation During an LCA Audit
A terminated H-1B employee complains to the DOL, which thereafter conducts an audit of the employer's public access files. It is not always clear whether the complaint could have triggered the audit, as the DOL can investigate an employer under many circumstances. It could have been possible to structure the representation that this employee may, in fact, not have been a client of the attorney, if only an H-1B visa petition was prepared and filed. Let us assume, however, that the attorney took on dual representation. If the attorney had foreseen this situation and had obtained consent from both clients that he or she could continue to represent the employer's interests after termination, this attorney might be able to continue to represent the employer in the DOL audit of its public access files.
Even assuming that there was informed consent, another approach is to consider the H-1B employee as a former client. This too depends on whether the representation was set up at the outset to cease at a certain point, either upon procurement of the H-1B visa or at termination of the H-1B employee's employment.
Under ABA Model Rule 1.9, involving duties to former clients, which is incorporated into state bar ethics rules, "A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing."
While this is an untested argument, it could be argued that a DOL audit, resulting in a possible hearing before an administrative law judge, although substantially related to the earlier preparation of the LCA, may not be materially adverse to the interests of the former client. The argument is further bolstered by the fact that there would also be no disclosure of confidential information that would be adversely used against the H-1B employee during such an audit, since in the course of the earlier dual representation, all confidential information would have been shared between the co-clients. In addition, this information would not even be viewed as confidential, as it would have been disclosed in the public access file supporting the LCA.
Also, a DOL audit does not involve a direct confrontation between the employee, or former client, and the employer. Rather, the employer is required to demonstrate that it has complied with all of the attestations it made in the Labor Condition Application. Even though the employee may claim back wages against the employer, the attorney's role in the investigation is to establish that the employer client complied with the attestations it made on the LCA.
The Office of the Chief Administrative Hearing Officer (OCAHO), in Santiglia v. Sun Microsystems, Inc., held that the attorney representing Sun Microsystems in an LCA investigation was not representing the foreign national employees in the Labor Condition Applications as prospective workers are not eligible to file these applications on their own. The disqualification motion against the attorney due to an alleged conflict of interest was therefore denied. While this case should not serve as a green light for attorneys to be able to represent an employer in an LCA investigation without taking into consideration the ethical issues pertaining to conflicts, it demonstrates that it may be possible to represent the employer after termination in an LCA investigation on the ground that the earlier representation on the LCA pertained only to the employer as a client and not the employee.
The Golden Mean Remains an Evolving Work
The Golden Mean continues to remain a work in progress as I monitor developments on conflicts and waivers from different areas of the law. As an evolving work, the Updated Golden Mean article abandoned the use of "primary client," even though there was a legitimate legal basis for use of this term, and developed the idea of the advance waiver in addition to limited representation.
Hake compares differences between the original and updated Golden Mean articles in great detail, which reflected the evolution of ideas and legal developments. Regarding the hypothetical pattern on an employee inquiring about "portability," I stated in the Original Golden Mean article:
The moment this employee wishes to inquire about "portability," or wishes to explore permanent residency options, however, the attorney will be faced with a conflict of interest. The attorney will no longer be able to represent the foreign national employee. Worse still, the attorney must reveal this information to the employer[,] as both clients in a dual representation situation are owed the same loyalty and there can be no secrets against each other, unless especially agreed to at the outset of the representation.Hake takes issue with the facts in the hypo, terming it "very wrong," and explains the difference between a potential conflict and an irreconcilable conflict. The point is well taken, but this was only a hypothetical. And it is possible for lawyers to differ on the interpretation, depending on the expectations of different clients, as to at what time there occurs a conflict between the employer and the employee who seeks advice about joining another employer.
When writing the Updated Golden Mean article, I thought through this issue again and modified the fact pattern so as to give the attorney an opportunity to resolve the conflict and also removed reference to the primary client, as follows (with the changes depicted in bold):
If this employee wishes to inquire about "portability," or wishes to explore permanent residency options, however, the attorney will be faced with a potential conflict of interest. If the attorney cannot resolve the conflict, he/she may no longer be able to represent the foreign national employee. Worse still, the attorney must reveal this information to the employer as both clients in a dual representation situation are owed the same loyalty and there can be no secrets against each other, unless especially agreed to at the outset of the representation.Hake then goes on to attribute a statement to me, which is completely false. Compare the quote from the Hake on Golden Mean article, below, with the above extracts from both my articles:
The rest of this passage says that the mere hearing of the words "portability" or "permanent residency" would require the lawyer to withdraw from representing the employee, report to the employer, instruct the employer that it must fire the employee, withdraw the H-1B petition, and to represent the employer against the employee in an investigation! This passage was removed from the updated Mehta article, but it reveals the article's foundation.Nowhere did I suggest that the lawyer "instruct the employer that it must fire the employee." Hake's imaginative ways to distort the Golden Mean take on fanciful wings when addressing the hypothetical employee. He states:
Imagine that you are a foreigner who has been offered a chance to work for a company in the United States. Your prospective employer tells you that a lawyer will take care of this for you. The lawyer sends you questions to answer, forms to fill out, and documents to read. One document is a complex legal writing that seems to say that the lawyer will always take the employer's side in any dispute, all the way up to abandoning you, advocating your termination, and actively taking steps to destroy your immigration status, thereby exposing your family to starvation and the risk of imprisonment and deportation. Or at least you think it means something like that. But you're excited about the job opportunity. And you cannot afford to hire your own lawyer. What are you going to do?It has already been noted that termination is an event that happens between an employer and an employee, and the immigration attorney steps in to represent one or the other party depending upon how the engagement was set up at the outset. The employer is required by law to notify the USCIS about the termination of an H-1B employee. On the other hand, the employer is not required to withdraw the I-140 petition, and the withdrawal of an approved I-140 petition after the employee has become eligible to exercise portability under INA §204(j) may have no adverse impact on the employee.
The Potential for Conflict When One Client Has Greater Contact with the Attorney Than the Other Client
The potential for conflict when one client has greater contact with the attorney than the other client in a dual-representation situation was described as the "primary client syndrome" in the Original Golden Mean article. The client who could have more contact in a co-client situation may not always be the employer. It could also be the employee who approaches the attorney of his or her choice, and introduces the attorney to the employer. One spouse could also have more contact than the other spouse.
Although under the Golden Mean the attorney is expected to represent both clients, irrespective of the extent of contact, with the same zeal and vigor within the parameters of the representation, experience teaches us that the client with more contact expects greater loyalty and confidentiality. Contrary to Hake's assertion, I did not abandon the use of "primary client" because it was wrong, but because it could suggest unintended prioritization and had the potential to cause confusion. The rules of professional responsibility do not permit a lawyer to give a "secondary" level of representation or service to a client.
Regardless of semantics, it is important that my writings candidly deal with the issue of the client who enjoys greater contact with the attorney and thus greater expectations of loyalty or confidentiality during the representation. I like to analogize the "primary client syndrome" to that of a planet and a comet. The planet is always in existence but comets may trail in and out of a planet's orbit. The client with greater contact with the attorney is like a planet. The other client who intersects the "planet" is like a comet. Thus, an employer who has been relying on the attorney for several years is akin to a planet while the employees, like comets, come in and go out over the months and years. Or at times, an employee could be the planet, who may have started her relationship with the immigration attorney while still on student visa status, and has obtained nonimmigrant statuses through several employers, who are now viewed as the comets. This individual may have also married someone, another comet, through whom she wishes to explore obtaining status with her trusted immigration attorney! Whenever a comet comes within a planet's orbit, the immigration attorney's involvement becomes necessary.
The notion of a primary and secondary client does indeed exist, and was enunciated in the Second Circuit decision of Allegaert v. Perot. A Shepard's search on Lexis Nexis on July 16, 2007, revealed that this case has been cited in 174 other decisions, and has been adopted by the Ninth and District of Columbia Circuits. It has also been cited in two New York City Bar ethics opinions. Allegaert involved a situation where a lawyer continuously represented a primary client, but then accepted joint representation with a secondary client. The interests of the two clients later diverged during the joint representation. Allegaert held that the lawyer could continue to represent the primary client against the secondary client because the latter "necessarily knew the information given to [the lawyers] would certainly be conveyed to the primary clients." Thus, the substantial-relationship test with respect to a former client was not implicated because the client had no expectation that the information acquired by the lawyers from the secondary client would be kept confidential from the primary client.
Hake finds two district court cases, despite Allegaert being a circuit court decision, to assert the "actual case law cuts against the Mehta article." In both these cases, the district courts distinguished the facts presented from the facts in Allegaert. In Felix v. Balkin, cited by Hake, Judge Hellerstein in footnote 4 of his decision states:
I need not decide if a properly drawn engagement letter might permit a lawyer to withdraw in favor of one client and against another. Much may depend on the nature and the seriousness of the conflict, the nature and duration of the dual representation, and the degree of advance disclosure and consent.My choice of primary and secondary client was thus based on Allegaert and its progeny. It is fair for the author of an evolving work to either abandon or modify ideas. In the Updated Golden Mean article, I chose not to use the term because it was causing needless distraction and took away from the main ideas being conveyed in the Golden Mean, which is to vigorously represent both clients within the parameters of the agreed upon representation. On the other hand, both the Original and Updated Golden Mean articles remain equally valid, and reflect the progressive evolution of ideas over time.
Minimizing Liability through the Golden Mean
Hake makes it appear that the sky will fall on the head of lawyers who use the Golden Mean approach, with an abundance of malpractice lawsuits. Yet, the Golden Mean acknowledges dual representation, and instructs the lawyer to carefully plan the representation for each client. While a lawyer cannot contract away malpractice liability under any circumstances, if the parameters of the representation of both clients, including the limitations, are set forth and consented to in advance, a disgruntled client may have less of a legal basis and incentive to sue the attorney for legal malpractice. Also, malpractice liability is based on how a jury would determine whether a lawyer was negligent, and the prudent lawyer, in addition to resolving conflicts, should be providing the highest caliber of legal services and ensuring that all cases are filed in a timely manner.
The Golden Mean also allows the attorney to calibrate the representation. At the point of preparing and filing a generic LCA for an unknown number of multiple H-1B employees, the attorney is representing only the employer. The representation probably becomes "dual" when the attorney starts advising the foreign beneficiary about the H-1B petition and attending to issues pertaining to status and the beneficiary relies on that advice. After the procurement of the H-1B visa and status, the representation of this employee could terminate until further work needs to be performed, such as filing a labor certification application towards permanent residency or an extension of H-1B status. While Hake has objected to this calibration under the Golden Mean as being a disguised attempt to actually represent only one client, an objective view reveals that the Golden Mean approach not only acknowledges dual representation, but also provides ethical tools for the attorney to shift the representation under the appropriate circumstances.
Hake also points to Saraswati v. Wildes, involving a settlement after a terminated employee brought a malpractice claim against the attorney. The action in Saraswati v. Wildes did not involve an H-1B issue. Rather, according to the reported decision discussing the appropriateness to vacate the judgment post-settlement, the attorney who was representing both the employer and the employee notified INS of the plaintiff's termination, which resulted in the cancellation of the adjustment of status application and temporary work authorization. Although the facts and circumstances are unclear from the reported decision, the prior discussion on conflicts arising out of portability situations instructs on how an attorney can take steps to minimize liability and assist both clients. It is also not clear from the facts of this case as to whether the law firm limited the representation of the employee or sought consents or waivers to conflicts.
As already noted, there is less of an obligation for an employer to effectuate the withdrawal of an I-140 petition as compared to an H-1B petition. Thus, even if the attorney represents the employer's interests after the termination of the employee, the employer could be advised not to withdraw the I-140 petition, especially one that is already approved. In contrast to the I-140 petition, an employer has a legal obligation to inform the USCIS about a terminated H-1B employee. This notification does not cause the lapse in status; rather, the H-1B status previously expired at the point of termination itself. An employee will have little basis to sue for malpractice when the termination itself caused the lapse of status and not the actions of the attorney in assisting the employer to follow through on its legal obligations after the termination. The attorney would be further insulated if the engagement letter predicted this scenario in advance and resulted in informed consents.
The following extract from Tafapolsky and Chen, When the Axe Falls: – Ethical Guidance for Terminated Immigration Counsel, provides guidance to business immigration practitioners representing corporate clients:
In the engagement letter, immigration counsel should include disclosure that informs the employer and employee that dual representation exists and explains its benefits and drawbacks. The letter should clarify that in the event of an actual conflict of interest, immigration counsel will continue to represent the primary client. In most cases, immigration counsel should also obtain a waiver and consent from the secondary client (usually the employee) to permit continued representation of the primary client in unrelated immigration matters. These prophylactic measures thus eliminate the conflict of interest hazards of dual representation. If these informed disclosures, consents, and waivers are not obtained, business immigration counsel may be forced to withdraw from a client if either of the parties requests a termination of representation, due to a conflict of interest or otherwise.The same advice is applicable to attorneys of employees who are seeking waivers with the employer or between spouses.
It is hoped that the Golden Mean will assist practitioners in dealing with conflicts. While reasonable attorneys may differ on which approach best suits clients under differing situations, the various approaches should be constructively debated in an informed and dignified matter. This, in my opinion, could only benefit the immigration bar.
1 Cyrus D. Mehta, Finding the 'Golden Mean' in Dual Representation – Updated, Immigration Briefings, August 2006, (Updated Golden Mean article); Finding the Golden Mean in Dual Representation, Immigration & Nationality Law Handbook 29 (AILA 2005-06 ed.) (Original Golden Mean article). The Updated Golden Mean article was also recently published in Navigating the Fundamentals of Immigration Law, Guidance and Tips for Successful Practice (Grace E. Akers ed., AILA 2007-08 ed.).
2 Bruce A. Hake, Advance Conflict Waivers are Unethical in Immigration Practice – Debunking Mehta's "Golden Mean," 11 Bender's Immigr. Bull. 682 (June 1, 2007) (Hake on Golden Mean article).
3 Bruce A. Hake, Dual Representation in Immigration Practice: The Simple Solution Is the Wrong Solution, 5 Geo. Immigr. L.J. 581-639 (Fall 1991) (Hake's 1991 Dual Representation article). In this groundbreaking article on dual representation in immigration practice, Hake suggests that the "lawyer may be able to continue to represent one of the former dual clients in the same matter, if there is a good chance that confidences of the other would not be breached." Id. at 622. He also states, "Continued representation after one client terminates a dual representation, may be appropriate in some immigration cases according to the general rule that conflicts rules are construed less strictly in non-litigation contexts [citing Wolfram's Modern Legal Ethics (1986))]." Id. at 623. However, in footnote 186 of the article, Hake states that "advance waivers are usually improper when imposed on unrepresented individuals, and would be even more improper if imposed on unsophisticated aliens and unrepresented aliens." While Hake's 1991 Dual Representation article, even to this day, lays the foundation for dual representation in immigration practice, there have been several developments in advance waivers since 1991, as well as many more possibilities for conflicts in immigration practice, especially with the introduction of the American Competitiveness in the Twenty-first Century Act, Pub. L. No. 106-313, 114 Stat. 1251 (2001) (AC21), which introduced the notion of job flexibility or portability. Furthermore, issues surrounding the employer's continuing obligations on attestations made in the Labor Condition Application (LCA), even after an H-1B employee has been terminated, were nonexistent in 1991. Hake's other article, Dual Representation in Immigration Practice, Ethics in a Brave New World 28 (John L. Pinnix, et al. eds., AILA 2004) (Hake's 2004 Dual Representation article) is an abridged version of Hake's 1991 Dual Representation article.
4 Amtel Group of Florida v. Yongmahapakorn, ARB Case No. 04-087, ALJ Case No. 2004-LCA-006, 2006 DOL Ad. Rev. Bd. LEXIS 94 (Sept. 29, 2006). For a detailed analysis of this decision and regarding an employer's obligation to pay the required wage until a bona fide termination, see Praveena Nallianathan, Karen C. Selking, Pamela P. Mick & Steven H. Garfinkel, Weighing When to Amend or Terminate H-1B Petitions, Immigration & Nationality Handbook 76 (AILA 2007-08 ed.) ("The significance of this notification to USCIS is much more than administrative thoroughness on the part of the employer. Instead, notification to USCIS is fundamental to ending an H-1B employer's obligations, pursuant to the LCA and immigration and DOL regulations").
5 8 C.F.R. § 214.2(h)(11)(iii)(A)(1).
6 An employer violates its obligations under the LCA if it fails to pay the required wage to an employee in nonproductive status. See INA § 212(n)(2)(C)(vii)(I), 8 U.S.C. §1182(n)(2)(C)(vii)(I); 20 C.F.R. § 655.731(c)(6)(ii), (7)(i).
7 See Hake on Golden Mean article, at 691.
8 For instance, should it be sent prior to or after the severance period? There is differing agency guidance as to whether an employee is maintaining status during the severance period. See, e.g., Letter from Thomas W. Simmons, Chief, INS Business & Trade Branch, to Harry Joe (undated), HQ 70/6.2.8, 70/6.2.12, reprinted at 4 Bender's Immigr. Bull. 266 (Mar. 15, 1999), and 76 Interpreter Releases 378 (Mar. 8, 1999); Letter from Efren Hernandez, III, Director, Business & Trade Services Branch, INS, to Wendi Lazar (Mar. 27, 2001), reprinted at 78 Interpreter Releases 608 (Apr. 2, 2001).
9 INA § 216(c)(4) provides for waivers of the joint filing requirement if the foreign spouse demonstrates: 1) extreme hardship if she were removed; 2) a marriage that was entered into in good faith, but was terminated or 3) a marriage entered into in good faith during which the alien spouse was battered by or was subject to extreme cruelty perpetrated by the U.S. citizen or permanent resident spouse.
10 Memorandum, William Yates, Acting Associate Dir., Ops, BCIS, , HQ ADN 70/23.12, Filing a Waiver of the Joint Filing Requirement Prior to Final Termination of the Marriage (Apr. 10, 2003), available at http://www.uscis.gov/files/pressrelease/CRwaiver041003.pdf (last visited July 23, 2007), published on AILA InfoNet at Document No. 03050643 (posted May 6, 2003) (I-751 waiver cannot be filed prior to the termination of the marriage), and reprinted at 8 Bender's Immigr. Bull 976, 980 (App. C) (June 1, 2003).
11 As long as the parties had a bona fide intent to enter into a marriage, subsequent conduct after marriage, no matter how unconventional, does not prove lack of marital intent. See Bark v. INS, 511 F.2d 1200 (9th Cir. 1975); Matter of McKee, 17 I. &N. Dec. 332 (BIA 1980).
12 For instance, New York requires a fictional "disinterested lawyer" to believe that the attorney can still continue the representation in the event of a conflict. N.Y. Code of Prof'l Responsibility DR 5-105(c).
13 See e.g. Jonathan J. Lerner, Honoring Choice by Consenting Adults: Prospective Conflict Waivers as a Mature Solution to Ethical Gamesmanship – A Response to Mr. Fox, 29 Hofstra L. Rev. 971 (2001); Richard W. Painter, Advance Waiver of Conflicts, 13Geo. J. Legal Ethics 289 (2000); Diane Karpman, Advice and Consents, 30 Los Angeles Lawyer 23 (June 2007); Angela R. Elbert & Sarah E. Garner, Navigating the Murky Waters of Advance Waivers: Are They Enforceable?, Coverage (ABA Committee on Insurance Coverage Litigation Sept./Oct. 2005).
14 Hake's 1991 Dual Representation article elaborately expounds on the duty of loyalty springing from the common law of agency, requiring the attorney to act as the client's fiduciary.
15 ABA Model Rule 1.6 prohibits a lawyer from revealing 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 one of the exceptions in the Model Rules.
16 For example, DR 5-105 of the New York Code of Professional Responsibility prohibits a lawyer from accepting or continuing employment "if the exercise of independent professional judgment in behalf of a client will be or is likely to be adversely affected" by the lawyer's representation of another client, or "if it would likely involve the lawyer in representing differing interests." As broadly defined under Definition 1, "Differing interests" include every interest of a client that will adversely affect either the judgment or the loyalty of a lawyer to a client, whether it be a conflicting, inconsistent, diverse, or other interest.
17 ABA Model Rule 1.7, infra.
18 NYC Bar Opinion 2006-1 (Feb. 17, 2006); Lerner, supra note 13.
19 Wolfram, Modern Legal Ethics, § 7.2.2, at 339. As an example of the balance between an attorney's duty of loyalty and a client's choice of lawyer, it is worth noting Comment 4 to Massachusetts Rule of Professional Conduct 1.7, entitled Conflict of Interest: General Rule, which states as follows:
 Loyalty to a client is also impaired when a lawyer cannot consider, recommend or carry out an appropriate course of action for the client because of the lawyer's other responsibilities or interests. The conflict in effect forecloses alternatives that would otherwise be available to the client. Paragraph (b) addresses such situations. A possible conflict does not itself preclude the representation. The critical questions are the likelihood that a conflict will eventuate and, if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client. Consideration should be given to whether the client wishes to accommodate the other interest involved [emphasis added].20 Hake also takes issue with the term "appropriate circumstances." I have always maintained that advance waivers may be used only when ethically permissible.
21 In L.A. County Opinion 471 (1994), it was found not to be unethical for the law firm to seek an employee's advance consent to its continued representation of the corporation in a suit arising out of the same transaction in the event it withdrew from representing the employee provided 1) the lawyer can jointly represent both clients competently, and 2) both clients give informed written consent.
22 New York County Lawyers Association Committee on Professional Ethics Formal Opinion No. 724.
23 Hake's reliance on Rule 1.14(b) of the Maryland Rules of Professional Conduct, "Client with Diminished Capacity," requiring a lawyer to take special action to protect clients with diminished capacity because of minority, mental impairment, or some other reason, is inappropriate. See Hake on Golden Mean article, at 692 n.45. His reference in the same footnote to an e-mail from an AILA member reporting that Colorado Regulatory Counsel told immigration lawyers that they have an enhanced responsibility toward foreign clients similar to that owed a mentally disabled client could be perceived as offensive to millions of immigrants who are sophisticated, educated and able to comprehend the advice of a lawyer like anyone else in the United States.
24 Zador Corp. v. Kwan, 31 Cal. App. 4th. 1285, 37 Ca. Rptr. 2d 754 (Cal. Ct. App. 1995) (advance waiver upheld when client studied it for twenty minutes and reaffirmed the waiver when the conflict arose).
25 Hamel Vyas, Ethical Issues for Immigration Lawyers, Navigating the Fundamentals of Immigration Law 17, 22 (Grace E. Akers ed., AILA 2007-08 ed.).
26 Hake on Golden Mean article, at 683 n.5, 691 n.35. N.Y. State Bar Opinion 761 involved a noncitizen wife who was the beneficiary of an I-130 petition filed by the citizen husband, who subsequently abused her. The opinion envisages the possibility of the relationship being structured so that the lawyer represented the wife only with respect to the I-130 petition, and thus the attorney could later file the battered spouse I-360 self-petition. The opinion also explores the possibility, similar to the Golden Mean, where the attorney could have sought consent from the husband to future conflicts, and it would then be possible to represent only the wife in filing the I-360 battered spouse petition.
27 Supra note 22.
28 Arthur D. Burger, Advance Waivers and Common Sense, Legal Times, July 29, 2002, at 15.
29 However, if the waiver can protect breaches of confidentiality, this objection may be overcome; especially if the confidential information was already shared by the clients during the joint representation. See Zador Corp.,31 Cal. App. 4th 1285; see also Washington State Bar Ass'n Op. 2064 (2004) (approving of an open-ended waiver provided a lawyer "continuously assess his representation of clients with potentially conflicted interests" and there is written, informed consent, but cautioning that waivers cannot cover all types of conflicts). But see State Bar of Michigan Op. RI-183 (disavowing a blanket consent agreement from a prosecutor, who was also serving as a legal advisor to a state agency, under Michigan Rules of Professional Conduct 1.7, which uses the "disinterested lawyer" test for determining whether a conflict would interfere with such representation).
30 Hake also misreads New York City Bar Opinion 2006-1. Like ABA Opinion 05-436, it says that open-ended waivers should be limited to sophisticated clients, that those relating to substantially related matters should be subject to further safeguards such as the sophistication of the client, and that the confidence and secrets of one client are not shared or used for the advantage of another client. It should be noted that in a joint representation, confidences and secrets have already been shared prior to the conflict. See infra, note 54 and accompanying text.
31 Hake's 1991 Dual Representation article, at 606; Hake's 2004 Dual Representation article, at 34.
32 The authorities cited in the Hake on Golden Mean article, at 692, concerning the vulnerability of immigrants, are not related to ethics issues.
33 ABA Formal Opinion 96-399 approved prospective consent to limit the scope of legal services sought from unsophisticated Legal Services clients if the lawyer takes care to see that the clients have a full understanding of what they are being asked to consent to and that the consent is completely voluntary.
34 262 Mich. App. 274, 686 N.W.2d 241 (Mich. Ct. App. 2004).
35 Rymal, 262 Mich. App. at 321, 686 N.W.2d at 267.
36 2004 Cal. App. Unpub. LEXIS 11726 (Cal. Ct, App. Dec. 27, 2004).
37 Id. at *14 (citing Visa USA, Inc. v. First Data Corp., 241 F. Supp. 2d 1101, 1105 (N.D. Cal. 2003)).
38 5 F. Supp. 2d 1356 (N.D. Ga. 1998). Hake quotes a passage from New York City Bar Opinion 2006-1, which references in a footnote an unreported decision of the New York Supreme Court, Rosen v. Rosen, 5 Misc. 3d 1031(A), 799 N.Y.S.2d 163 (N.Y. Sup. 2003). Hake on Golden Mean article, at 690. Despite Hake's reliance on Rosen, this case is readily distinguishable as it involves an attorney litigating against a former co-client for an act of fraud, which the court found to bring the matter outside the scope of any purported waiver. Also, this decision involved an extraordinarily complex fact pattern that implicated domestic relations law, contract law, estate planning, and federal civil rights litigation, which gave the court good cause to doubt the client's understanding of the waiver. Rosen, 5 Misc.3d at *5.
39 350 F. Supp. 2d 796 (N.D. Cal. 2004).
40 AC21 enacted § 204(j) of the INA, which allows the underlying labor certification of an employer to remain valid even if the foreign national changes jobs or employers in the same or similar occupational classification for which the certification was issued. Subsequent memos of the USCIS have stated that a foreign national can invoke portability even if the I-140 petition is pending with a concurrently filed I-485 application pursuant to 8 C.F.R. § 245.2(a)(2). See, e.g., Memorandum, William R. Yates, Associate Dir. for Ops., USCIS, HQPRD 70/6.2.8-P, Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-485 and H-1B Petitions Affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) (May 12, 2005), available at http://www.ilw.com/immigrationdaily/news/2005,0520-AC21.pdf (last visited July 24, 2007), reprinted at 10 Bender's Immigr. Bull. 990, 996 (App. G) (June 15, 2005), and published on AILA InfoNet at Doc. No. 05051810 (posted May 18, 2005) (Yates Memo on AC21 Portability).
41 See A. James Vazquez-Azpiri, Untangling the Skein of Adjustment Portability, 12 Bender's Immigr. Bull. 59 (Jan. 15, 2007). The author of this article acknowledges that "any number of challenging ethical issues" arise out of this situation and recommends readers to my updated Golden Mean article. Id. at 64 n.24
42 Supra note 4.
43 Any aggrieved party may file a complaint alleging an LCA violation. 20 C.F.R. § 655.806. Even someone who is not an aggrieved party may submit information concerning possible violations. 20 C.F.R. § 655.807. Violations could also include not posting the LCA at the appropriate worksite. 20 C.F.R. § 655.734.
44 20 C.F.R. § 655.730(d).
45 Case No. 03B00008, 2004 OCAHO LEXIS 1, 9 OCAHO no. 1104 (OCAHO Jan. 28, 2004).
46 Original Golden Mean article, at 31 (footnotes omitted).
47 Updated Golden Mean article, at 3 (footnotes omitted).
48 Hake on Golden Mean article, at 688.
49 Hake on Golden Mean article, at 692-93.
50 See Yates Memo on AC21 Portability, supra note 40. While the employer may not need to withdraw an approved I- 140 petition, it may be compelled to withdraw a pending labor certification if it no longer wishes to employ the beneficiary upon permanent residency. The lack of a pending labor certification could deprive the alien of a seventh year H-1B extension with another employer. AC21 § 106. Nor can an employer be advised to file an I-140 petition, after a labor certification has been approved, if it does not intend to employ the beneficiary upon his or her obtaining of permanent residency. The employer may also need to withdraw a pending I-140 petition if there is no intention to hire the employee and the latter is also not yet eligible for portability. On the other hand, there is a school of thought holding that the I-140 does not express an intent to employ the worker in the position, but only to classify the alien for preference purposes, and thus withdrawal may not be required. See Steven Clark, Practice Tips for the Busy Immigration Lawyer, Immigration Law Today, Mar./Apr. 2007, at 41. While these may appear to be hostile actions taken against the employee, they can also be viewed more benignly as actions the employer is legally required to take incidental to the termination of an employee.
51 565 F.2d 246 (2d Cir. 1977).
52 Christensen v. U.S. District Court for the Central District of California, 844 F.2d 694 (9- Cir. 1988), and Nat'l Souvenir Ctr. Inc. v. Historic Figures, Inc., 728 F.2d 503 (D.C. Cir. 1984).
53 New York City Bar Ethics Ops. 2001-2 (2001), 1999-7 (1999).
54 Allegaert, 565 F.2d at 250.
55 As already noted, ABA Model Rule 1.9 states that a lawyer who formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
56 Exterior Sys., Inc. v. Noble Composites, Inc., 175 F. Supp. 1112 (N.D. Ind. 2001); Felix v. Balkin, 49 F. Supp. 2d 260 (S.D.N.Y. 1999).
57 Hake on Golden Mean article, at 687.
58 Id.; Felix, 49 F. Supp 2d at 271.
59 I noted at the AILA New York conference (2005) the following bullet point under the panel "Ethical Issues in Employment and Family-Based Practice" – "Dual Representation: Who's the Client? Can there be 'Primary' and 'Secondary' clients?"
60 Incidentally, unbeknownst to me until recently, the notion of primary and secondary clients was also used in Alan Tafapolsky & Jack Chen, When the Axe Falls: Ethical Guidance for Terminated Immigration Counsel, Immigr. Briefings (Aug. 2001).
61 See e.g.,. Lunn v. Fragomen, Del Rey, Bernsen and Loewy, P.C., 2006 U.S. Dist. LEXIS 11160 (S.D. Tex, Feb. 28, 2006) (granting law firm's motion for summary judgment to dismiss the case because the foreign national client impliedly consented to disclosure of confidential information about a criminal conviction to the employer, ultimately leading to his dismissal from the job); Uehigashi v. Kanamori, 161 F. Supp. 2d 221 (S.D.N.Y. 2001) (granting a law firm's motion for summary judgment to dismiss an action for malpractice regarding advising on a business scheme that turned out to be fraudulent where she failed to demonstrate an attorney-client relationship beyond the firm's assistance in obtaining F-1 visa status); DerKevorkian v. Lionbridge Techs. Inc., 2006 U.S. Dist. LEXIS 4191 (D. Colo. Jan. 26, 2006) (granting an attorney's summary motion to dismiss against an employee who alleged malpractice for failing to file for a green card before expiration of her H-1B status on the ground that she was representing only the employer, and she would represent the employee only if the decision had been made to apply for the green card for her, but it had not been made because the official prevailing wage was higher than the green card position's). On December 8, 2006, the jury in DerKevorkian v. Lionbridge returned a verdict of $313,570 against the employer for breach of contract and $1,000,000 for noneconomic damages. However, the court reduced the award to $221,433 and $366,250, respectively. Slip Copy, 2007 U.S. Dist. LEXIS 13270 (D. Colo. Feb. 27, 2007).
62 2002 Cal. App. Unpub. LEXIS 4582 (Cal. Ct. App. Jan. 24, 2002).
64 Supra notes 40-42.
65 Supra notes 4, 42.
66 Supra note 60.
© 2007 Cyrus D. Mehta, all rights reserved. This article was first published at 12 Bender's Immigr. Bull. 1147 (Aug. 15, 2007.)
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Member of Cyrus D. Mehta & Associates, PLLC in New York City. The firm represents corporations and individuals from around the world in a variety of areas such as business and employment immigration, family immigration, consular matters, naturalization, federal court litigation and asylum. Mr. Mehta has received an AV rating from Martindale-Hubbell and is listed in Chambers USA 2007, International Who's Who of Corporate Immigration Lawyers 2007 and New York Super Lawyers 2006. Mr. Mehta is immediate past Chairman of the Board of Trustees of the American Immigration Law Foundation (2004-2006). He was also the Secretary and member of the Executive Committee (2003-2007) and the Chair of the Committee on Immigration and Nationality Law (2000-2003) of the New York City Bar. The author offers his thanks to Adam Ketcher, his associate, for his invaluable research assistance and to his colleagues
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