Symposium Revisited: “Representation Light:” The Pitfalls of Dual Representation

By Irene Zoupaniotis

During the second panel’s presentation on the “Ethical Considerations in Dual Representation” at the Hofstra Labor and Employment Law Journal’s Symposium on November 19, 2010, the panel asserted that there is no such thing as “representation light” – a lawyer cannot have half of a duty.  With the prevalence of dual representation in employer-sponsored immigration situations, it is hard to believe that a lawyer is able to fully represent the interests of one party without diminishing his or her duty to the other client, especially when one party is paying the expenses.[1] The conflicting interests of the two parties represented by one lawyer, therefore, will result in an ethical dilemma when payment by one party incentivizes the lawyer to act with greater vigilance and zeal for the paying party, thereby leaving the nonpaying party underrepresented.[2] Perhaps in an ideal world where a lawyer is merely acting as a facilitator finalizing the employment certification, dual representation would be the most efficient and mutually beneficial way to administer these immigration issues.

Reality, however, is not simple and ideal, but rather complicated.  There is an array of complexities within the employer-employee relationship that may raise several ethical red flags for a lawyer acting as a dual representative.[3] Some of the varying scenarios were raised in hypothetical situations created by the panel, including one in which the employer’s company was financially unstable and the company was looking to terminate entire divisions within the company, and another in which a potential immigrant employee had misstated his credentials.[4] The murky lines and hazy definition of what in fact is a “conflict of interest” suggest that a lawyer undertaking dual representation might not even be purposefully acting contrary to the interest of one of his clients, but rather is unaware of the existence of the possibility of an ethical dilemma.[5]

One of the suggestions made by the panel was that in order to completely avoid ethical dilemmas, dual representation should not be used in immigration employment certification.  This, however, does not seem to be viable for efficiency purposes.  Thus, in order to avoid “representation light,” while continuing to maintain the efficiency of dual representation in this specific field, lawyers need to have a clear understanding of the ethical dilemmas that may exist in any given dual representation situation, and there need to be enforcement mechanisms in place to sanction and deter ethical violations by lawyers.[6] One suggestion made by Panteha Abdollahi is to have more detailed commentary to the rules in order to have examples of varying scenarios that illustrate the differences between zealous representation and ethical misconduct.[7] This may be a small and effective adjustment that would aid lawyers who are dual representatives.  Moreover, this suggestion is in line with the method used by the panelists, who addressed the varying ethical dilemmas through the use of hypothetical scenarios.

[1] See Hilary Sheard, Ethical Issues in Immigration Proceedings, 9 Geo. Immigr. L.J. 719, 727 (1995).

[2] Model Rules of Prof’l Conduct R. 1.7 cmt. 13 (2007).

[3] See Bruce A. Hake, Dual Representation in Immigration Practice: The Simple Solution Is the Wrong Solution, 5 Geo. Immigr. L.J. 581, 588 (1991).

[4] See Ethical Considerations in Dual Representation, in SYMPOSIUM ON IMMIGRATION LAW, PRACTICE & REFORM (Nov. 18, 2010) (unpublished manuscript) (on file with the Hofstra Labor & Employment Law Journal).

[5] Panteha Abdollahi, The Labor Certification Process: Complex Ethical Issues For Immigration Lawyers, 17 Geo. Immigr. L.J. 707, 735 (2003).

[6] Id. at 732-33.

[7] Id. at 733.

Tagged , , , , , ,

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

%d bloggers like this: