Dueling Interests: The Dual Representation Dilemma

September 1, 2022

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Dueling Interests: The Dual Representation Dilemma

En garde!  Initially, you may not see the need for an employer’s request to secure proper work authorization for a prospective non-citizen employee. Stay on guard! Dual representation dangers could be just across the moat. 

Despite being first retained by the employer company, the immigration lawyer is viewed as being in a dual representation situation.  How does this happen?  The non-citizen employee becomes a client during the petition process by the attorney obtaining confidential information from the employee and perhaps offering legal advice about the employee’s visa eligibility. 

In a dual representation situation, immigration attorneys are immediately faced with two potential ethical concerns – a concurrent conflict of interest and confidentiality. ABA Model Rule 1.7 advises that a lawyer should not represent a client if there is a concurrent conflict of interest. The rule explains that a concurrent conflict exists if the representation of one client will be directly adverse to another client.  A conflict may also exist if 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, including a former client or by a personal interest of the lawyer.  However, you can overcome a conflict if the following factors are met:  (1) you reasonably believe you are able to provide “competent and diligent representation” to both clients, (2) the representation is not prohibited by law, (3) the clients are not involved in the same litigation, and, perhaps most importantly, (4) each client gives informed written consent.

More often than not, the interests of the employer and non-citizen prospective employee will align.  Simply stated, the company wants to employ the non-citizen and that individual wants to work for the company in the United States.  However, in representing both parties, the potential for the parties’ interests to become directly adverse exists.  For example, should the non-citizen employee casually mention she only intends to work for the company for a year and then start her own business, the non-citizen’s interest could be directly adverse to the employer’s interest.  Moreover, the lawyer is now faces another ethical dilemma concerning the confidentiality of this statement.

ABA Model Rule 1.6 prohibits the lawyer from revealing the prospective employee’s statement to the employer; however, the lawyer must also keep the employer reasonably informed about the status of the matter pursuant to Model Rule 1.4.  Despite the apparent juxtaposition of these rules, the potential conflict or confidentiality concerns can be overcome if addressed at the outset of the representation.  The lawyer may represent the employer and prospective employee if they “reasonably believe they will be able to provide competent and diligent representation to each affected client” and “each affected client gives informed consent, confirmed in writing.”  This is why explicitly defining the scope of the representation in the fee agreement or letter of representation is so important.  Full disclosure of the potential for conflict – and written consent for the lawyer to represent both parties – is required to avoid any potential conflict or breach of client confidentiality.  Protect yourself and your client relationships by specifically stating the terms of your representation, outlining certain disclosures that are common to the employer-prospective employee context (including confidentiality obligations), and obtaining the required written consent of both parties. 

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