In immigration practice, dual representation issues present themselves in both business immigration and family-based immigration matters. These are of course broad categories, and the dual representation issue thus confronts both attorneys and clients in most immigration matters.
Whether a client is a business, an educational institution, an EB-5 project promoter, or the spouse or other immediate relative of a potential immigrant, a client or potential client of an immigration law firm should be aware of the dual roles the law firm is undertaking. Importantly, the law firm should make clients aware of this dual representation and should present them with a representation agreement which explains the relationship among the clients, the petitioner or beneficiary, and the law firm.
Law firms follow one of four approaches to the ethical problem of dual representation.
The first of these is called the “simple solution.” In this approach, the lawyer executes an agreement solely with the client who pays the lawyer’s fee, typically the employer or the petitioner/sponsor/citizen/green card holder in family immigration cases. This approach has been heavily criticized by courts for ignoring the potential for conflicts of interest. Among other problems, even in the instance where the employer controls all communications with the immigrant/employee and the law firm functions only as a “messenger service” between the employer and employee, the employee’s perception may be that he or she is represented by the lawyer, leading to potential ethical issues or even liability for the lawyer.
Another approach is sometimes called the “Golden Mean.” In this approach to dual representation, the law firm will ask the parties to sign an agreement waiving specific conflicts in advance. This “advance waiver” may give priority to specified interests of one client, usually the employer or petitioner.
An approach offered by another legal scholar considers “advance waivers” to be unethical. In this approach, which I call the “wait and see” approach, the attorney must resolve all conflicts when they arise and obtain waivers, if at all, only after the conflict occurs, or else withdraw from representation of both clients.
Finally, there is a relativistic approach. An attorney may treat different potential or real conflicts in diverse ways. Advance waivers might apply to some conflicts while the “wait and see” approach might be applied to other potential conflicts. The decision whether to seek an “advance waiver” may depend upon the relative complexity of the legal matter, the relative sophistication of both clients as consumers of legal services (applicable primarily to business immigration matters where the employer is likely to have more experience with the legal system); the disparity or parity of negotiating strength and weakness between the two clients (again found primarily in business immigration matters); and predictability of the nature of the conflict.
None of these approaches to the problem of dual representation in immigration matters is perfect. Each lawyer or law firm must choose the approach that best suits it and, particularly, its clients. As for immigration clients, an awareness of these issues will be of great benefit when choosing an immigration lawyer. The law firm at a minimum should require a written representation agreement, and the approach to the dual representation issue should be explained in that agreement and preferably also during the initial client interview. A potential immigration client offered representation without a representation agreement would be wise to interview other law firms.