I. Establishing the attorney-client relationship
An attorney must always be cognizant of the fact that the people on the other side of the desk will think of you as their lawyer from the moment they walk in the door, and you must avoid a casual attitude towards initial consultations. An attorney-client relationship can be established at that first consultation, and the attorney is responsible for making the existence or nonexistence of such a relationship clear to the client/potential client. Attorneys must incorporate the use of declination letters into their practices. In order to avoid any confusion or misunderstanding on the potential client’s part, an attorney should develop a practice of memorializing the consultation, either in the form of an engagement or declination letter. Otherwise, the person may leave your office believing that you have agreed to show up at his next court date or CIS interview. Of course, confidentiality attaches regardless of whether or not your services are engaged.
- Decide if you will represent the person.
- If you decline representation, promptly send a letter.
- If accepting representation, promptly draft a detailed and comprehensive Representation Agreement and spell out in the agreement when your representation officially begins.
- ALWAYS send a closing letter upon completion of the case. Failing to send a closing letter fails to meet the standard of good ethics, and is also just plain dumb. Clients must have a clearly defined relationship with their attorney, with a definitive beginning and end.
- Bookmark the Massachusetts Rules of Professional Conduct (“MRPC”) at www.mass.gov/obcbbo/rpcnet.htm
A. BEWARE: The “Can’t you just tell me what to do” person on the other end of the line
Every attorney has the daily experience of people calling in, desperate for advice. The temptation to help and dispense advice on the spot is strong — resist it. Intake calls should not last more than 10 to 15 minutes, and the attorney should be asking the questions, not vice versa. The goal of the intake call is for the attorney to establish whether or not she can help the caller. A good attorney should be able to extract enough information from the caller in order to determine whether she wants to proceed with the client. At that point, the attorney should state, in general terms, what the course of action might be for the caller, but she must emphasize that she cannot dispense direct advice on the phone and should then invite the caller to schedule a consultation. If the caller persists in trying to get a black-and-white answer from the attorney, the attorney should courteously end the call.
B. BEWARE: The “I’m Emma’s cousin” caller
Immigration lawyers sometimes represent people who speak limited English. This fact can be a challenge in a representation. An attorney must have a reliable interpreter, or she should decline such a case. Often, a good solution is for a sister or brother to serve as the interpreter — however, the attorney should include a clause in her retainer agreement naming the individual as a liaison, and expressly indicating that the client approves of the communication through the third party. However, even when an attorney has a designated liaison, often the client’s friends or other relatives will call when the liaison isn’t available. This author had no less than five people call for a client in the span of one week: “Hi, I’m Emma’s cousin, and she just wants to know when her interview is again because she forgot.” While the caller may indeed be Emma’s cousin and no foul play is afoot, and giving the information to the person on the phone may be convenient, attorneys must be vigilant and never give out any information. Not only is disclosure a violation of the rules of professional conduct, but it is also dangerous for immigration clients who are vulnerable to ICE, domestic violence and hostility from every corner.
C. BEWARE: The “will you be my notario” client
Some people will seek out an attorney to only fill out forms for them in order to save on fees. While some accredited agencies and nonprofits may legitimately pursue this course of action, a private attorney should not. We are not notarios. If an attorney engages in form filling but fails to attach her signature to these forms, she is committing a misrepresentation to CIS. “I declare that I prepared this document at the request of the person above and that it is based on all information of which I have any knowledge.” This statement is at the end of every CIS form. In essence, the attorney who does not sign a form that she prepares is failing to declare an actual fact, which could amount to an allegation of misrepresentation or even fraud. Keep in mind that if an officer challenges anything on the form, the first response from the applicant will be, “But attorney Newstead filled this form out for me.”
The Board of Bar Overseers Office of the Bar Counsel Web site has an article addressing the issue of “ghostwriting.” While the article focuses on lawyers who prepare litigation documents, the lessons are applicable to forms-based immigration petitions as well. “If the case presents complicated legal issues, it is imprudent for the lawyer to agree to draft a pleading without entering an appearance….A lawyer should disclose to the court and the opposing party his or her preparation of any litigation documents.”1 Best practice dictates that an attorney should either undertake to represent the client completely or turn down the request to act as something less than an attorney engaged in full and zealous representation.
D. BEWARE: The “cocktail party” question
Often, in social settings or in e-mail conversation, friends, family and other lawyers will ask your opinion and advice on a legal matter. Do not be free and easy with advice, because the consequences of establishing a relationship where you had no such intention will fall upon you, not the “client.” The most trouble can come from other lawyers. Look what happens to generous attorney Lai when she helps another lawyer.
Attorney Lazy Bones meets Lai, an immigration expert, at a bar dinner. She picks Lai’s brain regarding a matter for a friend of hers, Juliana, and, as a matter of professional courtesy, Lai shares her expertise with Lazy. Naturally, ultra-competent Lai gives the standard disclaimer that her remarks are only preliminary and general.
The next morning, before Lai can even get her first sip of espresso, she’s reading an e-mail from Lazy to Juliana, with a cc to her. Lazy starts several sentences with, “Attorney Lai says to do this….” and “Attorney Lai says file this form….” Lai is mortified. Lazy has violated the attorney “code” — represent or refer. Lazy either needs to give advice directly to Juliana or refer her to Lai. You can’t second-hand the information; do the research, advise the client directly and take responsibility for the advice dispensed, or send the person to the attorney who knows what she is doing. Lazy made a serious weasel move that no self-respecting bar member, green or not, should ever make.
Lai immediately sent an e-mail to both Lazy and Juliana repeatedly emphasizing that the information she had given to Lazy was a professional courtesy, that no attorney-client relationship formed with either Lazy or Juliana, and that the information was not advice. And she promptly resolved to eat more shrimp cocktail at the next dinner.
II. Dual representation
The concept of limited representation, or the idea of “Primary” or “secondary” clients is a recipe for disaster. No attorney who strives for the highest level of ethics can pursue this fabled arrangement. When an attorney files an H-1B Petition, or a PERM Labor Certification or a Family-Based application, she is seeking a benefit that accrues to both parties’ interests. You can attempt to limit the scope of your representation and call one client “primary” and the other “secondary,” but it is a game of semantics and not substance. Such clauses or terms won’t necessarily release you from the obligation you have to each party. You cannot contract yourself out of a responsibility that attaches to you by virtue of the service you are providing. The one exception where you may represent only one party is if the other party is also represented by separate counsel.
Well, some practitioners argue, “I work for the person who pays my bills.” Oh, you just so don’t. The rules could not be more clear. In Massachusetts, attorneys are governed by Supreme Judicial Court Rule 3:07, the Massachusetts Rules of Professional Conduct. Specifically, Rule 5.4(c) Professional Independence Of A Lawyer states: “A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.” Questions?
Even if you don’t have a formal representation agreement with one of the parties, an implied attorney-client relationship may exist. “The critical question is whether the lawyer gives the person or institution legal advice or accepts confidential information.”2 Furthermore, an analysis under tort theory results in the determination that, again, an attorney-client relationship exists despite the attorney’s claims to the contrary. The crucial element is whether a reasonable person would believe that the attorney is her attorney. “An implied lawyer-client relationship exists whenever the lay party submits confidential information to an attorney whom he reasonably believes is acting to further his interests.”3 In the immigration context, an attorney cannot complete an employment-based or family-based petition without gathering information from two different parties. Before you can file either type of case, you must determine the status of the beneficiary, whether unlawful presence is an issue, criminal violations are involved, and the exact nature of the beneficiary’s immigration history. Once an attorney has taken that necessary step, she has created a duty of loyalty to the client.
In addition to tort theory, the rules of agency apply, and an attorney should know the consequences of creating an agency, either explicit or implied. “The lawyer’s many duties of loyalty derive from the common and statutory law of agency, which generally prohibits agents from taking actions disloyal to the interests of a principal, or from exploiting a principal’s confidences for self-gain or the gain of third parties. Even if legal ethics rules did not exist, lawyers would still be subject to civil actions for breaches of the duty of loyalty.”4 To operate under the misapprehension that you represent only one party is imprudent and puts you at risk. Your livelihood is your license — avoid vulnerability and follow the more prudent course of action: include a Dual Representation Clause and a Conflict of Interest Clause in your Representation Agreement, placing the “Dual Representation Clause” at the top.
III. Confidentiality and secrets
A. No secrets
Stated simply, in a dual representation situation, you cannot keep the secrets of one party from the other. One limited exception may apply to a corporation’s finances, but you would need to obtain a specific waiver from the beneficiary client that she agrees to such limitation.
Family secrets? No such thing exists in a marriage-based petition, which an attorney has undertaken as a dual representative (as she should). In a dual representation, an attorney commits to representing both parties and should clearly state in the agreement that disclosures made by one party to the attorney will be disclosed by the attorney to the other party. Furthermore, the Office of the Bar Counsel has a good article on the issues of confidentiality in the context of a joint representation.
When the lawyer has provided this advice to all jointly-represented clients at the outset of the representation and they have agreed that the lawyer can make full disclosure, the lawyer is almost always obligated to disclose material information to all of them. There are limited circumstances where joint clients may agree in advance that the lawyer not share certain types of confidential information with the other clients. See Mass. R. Prof. C. 1.7, Comment [12D].... However, it is only in rare circumstances that a lawyer may agree to such an arrangement without creating a conflict requiring separate representation.5
B. Reporting clients?
I almost fell out of my chair when I read the following exchange on a Listserv:
Lawyer #1: Many nurses visa process, enter the US and don’t honor their contract. Often they never appear for employment. Would a request to a consulate to revoke the non immigrant visa or to ICE to commence removal proceedings be successful?
Lawyer #2: I see this as a growing problem. I doubt CIS would revoke a petition, short of clearly documented fraud. But it should be reported to CIS, in the event the nurse applies for naturalization. According to “Recruiter A,” there is an officer at CIS who takes this seriously and wants violations reported to him so he can follow up on them: [CIS Officer name and number provided].
My response to the above “dilemma” is: you can’t report your former client nurse. Period. Unless you want to relinquish your license. The employer is free to pursue any course it wishes, but your last communication to them should be “I must withdraw, please consult with other counsel if you wish.” While the MRPC does require reporting in order to rectify a fraud, fraud is subjective, and you should not engage in trying to parse whether the nurse had the intent to join the sponsor when she signed the documents, because, if you guess wrong, it may mean your license.
IV. Conclusion — pitfalls to avoid
Everyone is extended and sometimes the caseload is unforgiving, but whether an ethical lapse is the result of bad intent or ignorance or being overwhelmed, the resulting devastation to the client is still the same. No matter the voluminous amounts of paperwork and the ever-changing laws and rules, “busy” is never an excuse. Immigration attorneys should not practice to the lowest common denominator; we should hold ourselves to the standard of “no excuses, no mistakes.” In a world of strong ethics, there is no such thing as being overwhelmed — be vigilant about your caseload, and if you can’t handle the work, don’t take it.
Money should never be a factor in your decision to engage a client. Passing on cases when you are financially strapped is not easy, but if you want easy, find a different job. You must be your hardest critic, and you must constantly educate yourself, and organize, and reorganize your cases, and review your clients’ histories until they are second nature, as if their memories were your own memories. The rewards of a successful outcome and a relieved client are incomparable.
Endnotes
1. Grace M. Jones, Ghostbusters, (2001), http://www.mass.gov/obcbbo/ghostbusters.htm.
2. Bruce Hake, “Dual Representation in Immigration Practice,” Ethics in a Brave New World, p. 30 (2004).
3. Ibid, at 31.
4. Id at 34-5.
5. Daniel Crane, Bar Counsel. “What’s Confidential When There is Joint Representation?” http://www.mass.gov/obcbbo/joint.htm (July 2004).
Bibliography
Rules:
ABA Model Rules of Professional Conduct
SJC Rule 3:07 Massachusetts rules of professional conduct
Additional sources:
Bruce A. Hake, Dual Representation in Immigration Practice, in AILA, Ethics in a Brave New World: Professional Responsibility, Personal Accountability, and Risk Management for Immigration Practitioners (2004).
Ethical Issues for Immigration Lawyers, in AILA, Ethics in a
Brave New World: Professional Responsibility, Personal Accountability,
and Risk Management for Immigration Practitioners (2004).
Marisa A. DeFranco is the chair of the Immigration Law Practice Group at Devine, Millimet & Branch (www.devinemillimet.com) in its Andover office. A member of the American Immigration Lawyers Association since 1998, she served as a director on the National Board of Governors and as chair of the New England Chapter, 2005-06.