Ethics Opinions

Opinion 09-03

Summary: In the circumstances of this inquiry, a lawyer representing both a foreign worker and his employer in obtaining employment authorization must inform the employer when the government revokes the employment authorization, even though the worker instructs the lawyer not to do so and the lawyer believes that the employer would rather not know.

Facts:  Attorney represents a company that often hires foreign workers. When a foreign worker is hired by her client, she handles the necessary formalities required to secure a visa for the employee.  In a particular matter, Attorney filed an immigration visa petition on behalf of the company to obtain the proper visa classification.  Attorney also filed an immigration visa application on behalf of the worker.  The company was not a party to the application.  At the same time, Attorney filed a temporary employment authorization request on behalf of the worker.

The United States Citizenship and Immigration Services (USCIS) issued a temporary employment authorization that on its face is still in effect. The visa application required the worker to perform certain conditions and thus to obtain an occupational visa.  The worker did not perform the conditions and was unable to obtain an occupational visa. USCIS recently denied the visa application and notified the worker and Attorney that the worker’s temporary employment authorization was being revoked. USCIS did not notify the employer.

We are informed that the worker does not have any viable visa options, and will need to depart the United States shortly or face serious immigration consequences. Attorney told the worker to inform the employer of the revocation. The worker has not done so and asked Attorney not to do so. The employer has no knowledge that the employment authorization has been revoked, and believes it is authorized to keep her employed until the employment authorization expiration date in a year. The employer was not a party to the employment authorization application, and USCIS did not notify the employer of its revocation. However, Attorney informs us that once the employer is notified by a reliable source that the employment authorization has been revoked, the employer would possess actual knowledge that the authorization is invalid, and would be required to terminate the worker’s employment. The employer badly needs foreign workers to help run its business. Attorney believes that the employer would prefer to remain ignorant of the revocation of the worker’s employment authorization.

Discussion: The current ethical problem arises out of a situation in which Attorney undertook to represent two clients for a common end — employment of the worker by the company.

1. “The employer would not wish to know.”

             The first issue is whether Attorney should act on the supposition that she possesses information that both her worker client and her employer client would wish for her to keep from the employer. The Committee’s advice is that that is a dangerous supposition on which to base action. Rule 1.4 of the Massachusetts Rules of Professional Conduct provides:

(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

We believe that this Rule requires Attorney, unless precluded by other Rules from doing so, to inform her employer client about the government’s revocation of the worker’s temporary employment authorization. If any trouble arose for the employer, it would doubtless shift legal blame for its predicament onto Attorney because of her failure to inform it of the worker’s change in status. More generally, clients often do not wish to hear bad news from their lawyers, but it is not a good idea for a lawyer to decide to conceal adverse information from a client because of a surmise that the client wouldn’t want to know the information in order to avoid the consequences. The employer should know the worker’s status and act appropriately. If the worker were to flee to avoid deportation, our supposition is that the employer would not agree that Attorney  had acted properly in concealing relevant information from it, especially if the worker’s flight subjected the employer to investigation by the government.

2. Joint representation of the worker and the employer and confidentialit  We have previously set forth the principles that we believe govern in a joint client problem like this one. Opinion 99-5 dealt with a situation in which a lawyer represented co-administrators of an estate from which a beneficiary stole money and one of the co-administrators might have been involved. In responding to an inquiry from the lawyer about her ability to inform the other co-administrator of the theft, we stated:

           
The primary disciplinary rule relating to a lawyer’s confidentiality obligations to joint clients is Rule 1.7. The Supreme Judicial Court adopted special Massachusetts Comments that speak to this issue directly:


[12B] A particularly important factor in determining the appropriateness of joint representation is the effect on lawyer-client confidentiality and the attorney-client privilege. With regard to the evidentiary attorney-client privilege, the prevailing rule is that as between commonly represented clients the privilege does not attach. Hence, it must be assumed that if litigation eventuates between the clients, the privilege will not protect any such communications, and the client should be so advised.

 
[12C] As to the duty of confidentiality, while each client may assert that the lawyer keep something in confidence between the lawyer and the client, which is not to be disclosed to the other client, each client should be advised at the outset of the joint representation that making such a request will, in all likelihood, make it impossible for the lawyer to continue the joint representation. This is so because the lawyer has an equal duty of loyalty to each client. Each client has a right to expect that the lawyer will tell the client anything bearing on the representation that might affect that client’s interests and that the lawyer will use that information to that client’s benefit. But the lawyer cannot do this if the other client has sworn the lawyer to secrecy about any such matter. Thus, for the lawyer to proceed would be in derogation of the trust of the other client. To avoid this situation, at the outset of the joint representation the lawyer should advise both (or all) clients that the joint representation will work only if they agree to deal openly and honestly with one another on all matters relating to the representation, and that the lawyer will have to withdraw, if one requests that some matter material to the representation be kept from the other. The lawyer should advise the clients to consider carefully whether they are willing to share information openly with one another because above all else that is what it means to have one lawyer instead of separate representation for each.


[12D] In limited circumstances, it may be appropriate for a lawyer to ask both (or all) clients, if they want to agree that the lawyer will keep certain information confidential, i.e., from the other client. For example, an estate lawyer might want to ask joint clients if they each want to agree that in the eventuality that one becomes mentally disabled the lawyer be allowed to proceed with the joint representation, appropriately altering the estate plan, without the other’s knowledge. Of course, should that eventuality come to pass, the lawyer should consult Rule 1.14 before proceeding. However, aside from such limited circumstances, the lawyer representing joint clients should emphasize that what the clients give up in terms of confidentiality is twofold: a later right to claim the attorney-client privilege in disputes between them; and the right during the representation to keep secrets from one another that bear on the representation. (emphasis added).


            Opinion 99-5 continued:

 

The Comment makes clear that the normal rule in joint client representation is that there is no confidentiality between joint clients, unless they agree otherwise, and that the lawyer should explain this at the outset of the representation. The Comment does not address directly whether their lawyer should apply the normal rule if she has not explained it to the clients before an issue arises. L’s inquiry does not state whether she did so. If she did, then her course is clear. Her obligation is to inform Client B. If L did not do so, then her course is less clear. While Client A might claim that his expectation was that she would keep his confession confidential, Client B’s likely expectation, however, is that he will be kept informed of all matters relating to the representation. Whatever L does is likely to defeat the expectation of one of her clients. We believe that there is not one answer for lawyers in all situations in which clients have not been informed of the ramifications of the joint client rule. It will depend on the circumstances of each case, including whether other Rules of Professional Conduct apply.

            The Committee in Opinion 99-5 then went on to consider the conduct of the two clients and concluded that the obligation owed to a client with a fiduciary obligation to an estate trumped whatever confidentiality obligation was owed to a client who received money taken wrongfully from the estate.

 

3. Revelation to the company

 

            The Committee is of the opinion that on the facts of this inquiry Attorney must reveal to the employer that the worker’s employment authorization has been revoked. There are several reasons for this conclusion. In the first place, the information regarding the worker’s status did not come to Attorney from the worker. While confidential information does not necessarily have to come from the client, in this case the information about revocation was communicated to Attorney by a government agency that knew that Attorney was the lawyer for the employer as well as for the worker. It seems difficult to conclude that this information should be treated as confidential information of the worker as against the employer. See Rule 1.6, Comments 5, 5A, and 5B which define the extent of “confidential information.

            Moreover, under the joint client rule, the information would certainly have to be revealed if Attorney had followed the instruction of Comments 12A–12D of Rule 1.7 to inform the clients about the principles of joint client principles at the outset of the relationship. If nothing was said to the joint clients, then following the direction of our Opinion 99-5 we would need to compare the relevant interests of the joint clients. This situation is very much like that of Opinion 99-5 where one of the jointly represented parties needed to be protected against loss of funds. Here the employer needs to be protected against employing a person whose employment authorization has been revoked because it is unlawful for the employer to keep the worker in its employ once it has knowledge of the revocation.

            Our conclusion is reinforced by 1 Restatement Third of the Law Governing Lawyers §60, Comment l: In dealing with a situation where one co-client directs a lawyer not to reveal information concerning the representation to another co-client, the illustration states that the lawyer is required to withdraw from representation of both clients and then continues: 

            In the course of withdrawal, the lawyer has discretion to warn the affected co-client that a matter seriously and adversely affecting that person’s interests has come to light, which the other co-client refuses to permit the lawyer to disclose. Beyond such a limited warning, the lawyer, after consideration of all relevant circumstances, has the further discretion to inform the affected co-client of the specific communication if, in the lawyer’s reasonable judgment, the immediacy and magnitude of the risk to the affected co-client outweigh the interest of the communicating client in continued secrecy. In making such determinations, the lawyer may take into account superior legal interests of the lawyer or affected

third persons, such as an interest implicated by a threat of physical harm to the lawyer or another person. . . .

 

But see ABA Formal Opinion 08-450, which deals with the obligations of a lawyer retained to represent both an insured employer and an employee of the insured when the employer may be vicariously liable for the acts of the employee. That Opinion involves such different expectations and substantive law issues from the inquiry in this Opinion as not to be particularly helpful in addressing the facts of this inquiry.

 

            Our conclusion concerning disclosure may be further reinforced by virtue of MRPC 1.6(b)(3), which permits a lawyer to reveal confidential information “to the extent the lawyer reasonably believes necessary to rectify client fraud in which the lawyer’s services have been used . . . .” We do not know whether the contents of the worker’s application or the employer’s petition contained statements based on information from the worker (presumably about matters relevant to fulfillment of the conditions of the employment authorization) that Attorney now knows to have been false.  If the employer approved filing of its petition on the basis of false information obtained from the worker and used in drafting the petition, Rule 1.6(b)(3) would, we believe, authorize Attorney to “rectify” the client fraud by informing the employer that the petition filed in its name contained false information.

 

            The Committee has therefore concluded, on the basis of all these considerations, that Attorney is required to inform her employer client about the revocation of her worker client’s employment authorization.

            The Committee believes that Attorney must notify her worker client about that course of action.  Whether she does that before notifying the employer or simultaneously with such notification is a matter for Attorney’s best judgment based on the particular circumstances of the situation.  Compare Rule 1.6 and Comment 19A to that Rule.

 

This advice is that of a committee without official governmental status.

  This opinion was approved for publication by the Massachusetts Bar Association’s House of Delegates on January 15, 2009.

 

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