Opinion 2005-9
(July 2005)

The inquirer has asked our opinion as to whether in the circumstances described below, he can continue to represent his client.

The inquirer is a lawyer whose practice is confined to representations of persons before the Immigration Courts. While only licensed to practice in New York, the inquirer practices in Pennsylvania. He is not obligated to be admitted to the Pennsylvania Bar because his practice is limited to a strictly federal setting. Based upon Pennsylvania Rule of Professional Conduct (the “Rules”) 8.5a & b, the Committee believes that Pennsylvania Rules govern the conduct in this situation. However, as Rule 8.5a points out, “…A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.” As such the Committee advises the inquirer to also seek an opinion in New York, as its Rules might provide that the inquirer’s conduct, even though occurring in Pennsylvania, is also subject to the New York rules.

In 2004, the inquirer was contacted by another immigration attorney. That immigration attorney (referred to herein as "A") identified herself as such and explained that she had a boyfriend, with whom she had had a child, who faced a possible deportation from the United States and who needed representation in connection with the deportation proceeding. After several discussions between A and either the inquirer or members of his staff, the inquirer met alone with the prospective client (referred to herein as "B"), and agreed to undertake B's representation in connection with the deportation proceeding.

Throughout the period of time that he has been representing B, the inquirer has been having regular discussions with A regarding the matter. It appears that sometimes these conversations have been for the purpose of obtaining information necessary to represent B and other times they have been for the purpose of conveying information to B through A.

During the course of representation, B, during a meeting with the inquirer, explained that he and A had had a dispute during which A had struck him and that there were criminal charges pending against A because of that incident. The inquirer advised B regarding certain steps B should take as a consequence of that incident and brought the physical altercation to the attention of the immigration judge.

The inquirer then received a phone call from A, who told him that she had heard that he was going to file a "fraudulent" petition in B's case. The inquirer declined to discuss the matter with A.

The inquirer does not state that A asserted a position that the inquirer could not continue to represent B due to a conflict, but the inquirer seeks our opinion as to whether or not a conflict of interest prevents him from continuing to represent B in his immigration matters in a manner adverse to A.

Rule 1.7 bars a representation where the representation of one client will be directly adverse to another client or where there is significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibility to another client, a former client, or a third person or by a personal interest in the lawyer.

The initial question that must be confronted in these cases is the identity of the possible client or clients involved and confirmation of their status as clients or not as clients. The inquirer does not believe A was his client, but even where a lawyer does not believe an attorney-client relationship exists, a person might reasonably believe, under all the facts and circumstances, that he or she is being represented by that lawyer and thereby create an attorney-client relationship.

In our view, however, A could not have reasonably believed that in this case, and the only client of the inquirer under the facts presented is B. Although the inquirer was initially consulted by A and spoke repeatedly with A about the representation, it is clear that the inquirer had no understanding he was representing A and, for the reasons stated above, perhaps even more importantly, there is no basis for A having had an understanding that the inquirer was representing her. A is herself a lawyer, actually works in the field of immigration law and at some point during the course of the relationship, even informed the inquirer that she had her own lawyer looking after her interests in connection with the immigration matter. Had she been under the impression she was being represented by the inquirer, she clearly would not have engaged other counsel. Accordingly, we do not believe the A is or was a client of the inquirer and therefore there is no conflict of interest.

That does not entirely end the matter, since it is possible that there may be a conflict of interest under 1.7 where the responsibilities of the lawyer to a client might be compromised by his relationship with a person not his client, either a former client or a third-person, or a personal interest of the lawyer. In this case, however, we do not see any reason to believe that is so. If A must be characterized somehow, she would appear to be a referring lawyer, who arranged for B to have counsel. As such, she was periodically kept apprised of the situation with regard to B's case, but that appears to be A's only relationship with the inquirer and it seems to us that is ancillary and entirely subservient to his relationship to B as his client. There is nothing about the relationship between her as referring counsel and the inquirer that limits his ability to represent B. Accordingly, we do not see any basis for a bar to the continued representation of B by the inquirer.