Attorneys – in their relationaships with their clients – are governed by a complicated set of rules generally called the Code of Professional Responsibility. This Code contains many common sense rules: attorneys have to diligently work on their clients’ cases, they have to keep their clients’ secrets (most of the time) and they have to account for their clients’ money. These rules can be modified when an attorney represents more than one person in the same or related transactions – a concept often called “dual representation” – which happens a lot in immigration law; however, these modifcations of the rules often seem to defy common sense. Rules regarding dual representation exist to protect client confidentiality and eliminate conflicts of interest, but the facts under which these issues can arise are not always obvious.
The basic rule is that an attorney owes his or her client a duty of confidentiality. This rule sometimes conflicts with the rule that an attorney cannot represent two people if the attorney is being asked to do something by one client that conflicts with the best interests of the other client. In immigration this happens when an attorney represents a spouse, parent or child who is wanting to file an application for a relative or when an employer is wanting to file an application for an employee. When we have this sort of dual representation, we always advise our clients that it basically means we cannot keep secrets between them or do something at the request of one of them that the other would not want us to do. This applies NO MATTER WHO PAYS THE BILL.
The natural question for the client is: “Give me some examples!” So here are the easy ones:
1. If you are sponsoring your spouse and at some point you decide you want a divorce, you can’t tell your immigration lawyer before you tell your spouse.
2. If you are sponsoring your fiancee and are having cold feet, tell your fiancee first, not your immigration lawyer.
3. If you are sponsoring an employee and have decided you would like to terminate the person, don’t tell your immigration lawyer before you talk to the employee.
4. If you are being sponsored by anyone and have a criminal history of any kind, don’t expect to keep it a secret from your employer or your relative if it affects any part of the immigration application. The same goes for having prior problems with the immigration authorities.
5. If we filed a marriage based case for you and you need to file to renew the 2 year green card but you are no longer with your spouse, the lawyer who filed your original application cannot help you unless your ex spouse gives his or her consent.
6. If you are an employee who wants to leave his or her job – as opposed to getting terminated or leaving on mutually agreed terms – you can’t tell the attorney who prepared the visa for the original employer you are planning on taking another job and ask that attorney to help you unless the original employer consents.
7. If you are sponsoring certain family members (fiancees, spouses, step children) you may have an obligation to disclose a variety of things about your personal history that can be “uncomfortable” but if something must be disclosed to the beneficiary or to the government the attorney cannot keep your “secret” even if it is that stupid 3 week marriage you had annulled after a crazy weekend in Vegas.
But these are the easy examples. There are tougher calls and each case truly is different depending on the precise facts in play. For example what happens if you are an employer who is having issues with an employee’s performance. Can the attorney who helped you obtain the visa for the employee give advice on this issue. The answer depends. If you ask generally what happens to a foreign worker if you terminate their employment, the attorney can give you a general answer as to the universe of possible consequences. The attorney can’t advise you on the best way to terminate the employee. If you say you are having marital troubles, the attorney can tell you what will generally happen if the marriage breaks up but the attorney can’t keep the fact that you want a divorce or are planning one a secret from your spouse.
The toughest call of all occurs in the family context if there are allegations of abuse. Attorneys are mandatory reporters of child abuse and elder abuse and therefore a careful analysis of the facts is required to see whether the mandatory reporting duty is triggered despite the duty of confidentiality. If it is triggered then the report must be made. If there is no duty to report, usually the attorney will still refer the complaining party to another attorney in order to maintain confidentiality. In addition, if Mom is complaining about abuse of the children by Dad, the attorney ccan’t represent Mom, Dad or the child. If the concern is spousal abuse then, in most instances, the cautious attorney will refer the matter to another attorney as well even if there is no manatory reporting requirement.
At the end of the day, these rules exist to protect the client and the client’s confidences and interests. If your long time immigration attorney – who filed dozens of petitions for you on behalf of your employees over the years – suddenly says he or she has a conflict and cannot answer your questions, do not take it personally. If your family immigration lawyer says he cannot get between you and your wife, it’s not about you. In all of these cases, either disclose the secret to the other party and then bring the lawyer back into the loop or, if the conflict cannot be avoided, take the referral. In many cases, the conflict only exists for that particular case and once it is resolved you can return right back to your usual relationship with your trusted attorney.