EMERGING ISSUES IN DUAL REPRESENTATION AND UNAUTHORIZED PRACTICE OF LAW
by
Cyrus D. Mehta
This outline addresses emerging issues in two important areas affecting immigration practice: Dual Representation and Unauthorized Practice of Law. Although the two areas are unrelated, they are both very relevant to immigration practitioners, who may be interested in keeping abreast with recent developments.
A. DUAL REPRESENTATION
The practice of immigration law invariable involves dual representation. Immigration attorneys represent the employer and employee, or the spouses in a marriage. Each time there is a new law or rule, it must be viewed through the prism of dual representation. So long as the objectives of the co-clients are aligned, it is ethical for a lawyer to represent multiple clients provided that he or she obtains the informed consent from the co-clients regarding the limitations of dual representation. Dual representation implicates the lawyer’s fiduciary duty of loyalty toward the client. It also implicates the lawyer’s duty to keep all information confidential. In dual representation, unless previously agreed upon, there can be no secrets between the two clients.
ABA Model Rule 1.7 titled Conflict of Interest: Current Clients, provides the ethical basis for representing multiple clients:
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:
the representation of one client will be directly adverse to another client; or
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, a former client or a third person or by a personal interest of the lawyer.
b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
the representation is not prohibited by law;
the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
each affected client gives informed consent, confirmed in writing.
In contrast, New York Code of Professional Responsibility Disciplinary Rule 5-105 (C) states:
….. a lawyer may represent multiple clients if a disinterested lawyer would believe that a lawyer can competently represent the interest of each and if each consents after full disclosure of the implications of the simultaneous representation and the advantages and risks involved.
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