Opinion 2002-1
(January 2002)

The inquirer presents the facts as follows: The inquirer represents an asylum applicant A in a case pending with Immigration Court before Judge B. At the beginning of 2001, a special Immigration Law (Section 245(I)) provided a "window of opportunity" to allow illegal aliens to adjust their status to permanent residency by employment. At that time, the inquirer started to employ A as an interpreter and started her green card application by filing labor certification application with the Department of Labor in accordance with Section 245(I) procedure. The inquirer has been A's employer ever since. Judge B feels that the inquirer may have a conflict of interest to be both A's employer and asylum counsel. The inquirer asks whether the ethical rules require that he withdraw from the representation.

The resolution of this inquiry largely turns on the application of Rule 3.7 of the Pennsylvania Rules of Professional Conduct. Rule 3.7 prohibits a lawyer from acting "as an advocate at a trial in which the lawyer is likely to be a necessary witness except where --(1) the testimony relates to an uncontested issue." Here, if there is a contested issue that renders the inquirer's testimony "necessary," he cannot act as an advocate for A. In that situation, however, Rule 3.7 (b) allows another lawyer at the inquirer's firm to represent A unless such representation would violate Rule 1.7 or Rule 1.9.

Further, under Rule 1.7, the inquirer may have a conflict of interest if his representation of A is materially limited by his own interests as A's employer's. Based on the facts presented, it appears that the inquirer's and A's interests are aligned in that it appears both desire A's continued employment by the inquirer. But if, for example, the inquirer no longer wished to employ A and the termination of A's employment would materially affect A's asylum application, then the inquirer would have a conflict of interest.

Finally, if Judge B considers that A's continued representation by the inquirer is ethically incorrect or if Judge B, by reason of A's employment by inquirer, would give less credence to A's testimony, then inquirer may have a conflict under Rule 1.7(b)(2). Such conflict is knowingly waivable by a fully informed client.

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.