Legal ethics

Social media for lawyers - 26 questions and answers

Social media for lawyers - 26 questions and answers

Thanks to the 1,372 lawyers who attended this week's social media ethics Legal Lunchbox talk. We understand it was the largest program ever hosted by the Washington State Bar Association, which speaks to the interest and angst that many of us share about the role of social media in our profession.

Using Online Forms Is Easy and (Can Be) Ethical

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The material in this post comes from a presentation I gave for the Washington State Bar Association's Solo and Small Practice Section's annual CLE on January 22, 2016. This article won the BlawgWorld Pick of the Week award. The editors of BlawgWorld, a free weekly email newsletter for lawyers and law firm administrators, give this award to one article every week that they feel is a must-read for this audience.

Let’s stop doing data entry whenever possible. That’s the basic idea. If anyone at your firm is routinely inputting lots of information, you might want to explore whether you could automate that system. How? Fundamentally, it’s by having the person who originally has the information — often your client — input it into your system without human intervention.

Here are just some examples of how you might use a form tool in your practice. If you’re one of the many attorneys who feel their clients “don’t use computers,” start looking at your clients’ phones. The tools discussed here will work nicely on web-enabled mobile devices.

  • Contact forms/prospective clients. Most of us probably have contact forms on our websites for prospective client contacts. Form tools can channel prospect information into whatever contact database or Customer Relationship Management (CRM) tool a firm is using.
  • Intake. Do your clients sit in the lobby and fill out a paper questionnaire à la the doctor’s office? Worse yet, does staff use time completing a questionnaire while the client talks? What if the questionnaire could be completed by the client before she walks in, and the data just a click away?
  • Routine case information. I’m an immigration lawyer and need the same information for most clients in a given legal scenario. Becoming a citizen? There’s a standard 15-pages worth of information I’ll need for such a case. Most practice areas have certain information that repeats per case type.
  • Customer satisfaction surveys. What do our clients actually think about us? We could always ask them. The easiest way is the net promoter score — a one-question survey that assesses whether a client would recommend our services. Note that unlike other tasks described here, this one does not necessarily capture data protected by client confidence rules, so your choice of (free) tools may be broader.

What do the RPCs have to say? An attorney has an ethical responsibility to competently use technology that she chooses to deploy in practice. Why? It follows from our many fiduciary duties to a client. For present purposes that mostly means safeguarding client information: your duty to secure client information naturally extends to the choice of tech used to store that information. Advisory Opinion 2215 gives us seven factors to consider in a due diligence analysis of such tools. To cut to the bottom line: if you collect and store client data online, it almost certainly needs to be encrypted where saved.

As is always the case with technology, before starting to shop, first decide what problem you are trying to solve. Consider:

  • How are you going to be using this data? Is this background information about a client that you just want to be able to reference later if needed for context? Is this data that you want to be able to import into some form of document automation tool? (Remember: Word can be a document automation tool.)
  • What type of data is being collected? Will you be capturing sensitive financial data and social security numbers? Or do you need to store only a 1–10 rating score of an interaction they had with your office staff?
  • What are the dividends you stand to gain? Are you collecting data for a use that’s core to your practice, used in daily client work? Or is this a small amount of information used for an isolated purpose? Some tools are cheaper and easier to implement than others.

With those considerations in mind, here are some of the forms tools that I’ve played with personally; while there are many more out there, these are some of the most popular.

Google Forms (free) Google offers an excellent, free forms tool that integrates seamlessly with Google Drive (also free). I use this tool often for various non-client scenarios. In the screenshot below, for example, I was creating a form to collect information about colleagues who were interested in collaborating with my web-based immigration firm.

SoundImmigration screenshot
SoundImmigration screenshot

Google recently revamped Forms and its drag-and-drop interface is now even better than it had been. The catch? Forms does not presently support encryption, though there are third-party solutions to encrypt Google Drive. A second limitation of Forms is that it does not support “save/continue” functionality, which you would want for any form of much length.

JotForm (free for up to 100 submissions) JotForm is an intuitive form builder that can be great for many law firm uses. The user interface of the forms-builder is intuitive, if not beautiful. (See screenshot below). JotForm supports encryption and also has a save/continue feature. The encryption tool is potentially clunky, depending on how you plan to manipulate the data once a form is submitted.

JotForm screenshot
JotForm screenshot

WuFoo ($29.95/month for “bona fide” plan) WuFoo is another popular drag-and-drop form builder that works similarly to JotForm. Personally, I feel its interface is easier to use, and it’s easier to customize a great-looking end product. Like JotForm, WuFoo offers encryption. The rub: you have to buy a premium plan to get it. If you’re achieving any efficiency with the form, however, the price point is a drop in the bucket.

Intake 123 ($9–79/month) This tool was specially designed for lawyers with ethics-related security issues in mind. It’s designed around lawyer “use cases,” meaning its templates and interface help you build forms for common law scenarios like client intake. In using it, I didn’t enjoy its user experience. Their customer service was responsive, however, and the fact that they designed their tool for lawyers means that you might get (for example) an intake questionnaire setup more quickly than with other tools, since Intake 123 will suggest popular questions to include.

Gravity Forms ($39 one-time license) This tool is a plugin for your WordPress site; if you don’t know what that means, this probably isn’t the right tool. Gravity Forms allows for encryption and save/continue functionality. A major appeal is that you pay for the one-time license and are set to go. Easy to use, this tool can build a form that’s nicely integrated into your WordPress site (though the tools mentioned above can be embedded by a script). The fact that it’s hosted on your site’s host, though, means that if you bungle something, your data will be lost. This may or may not have happened to the author at the time he was experimenting with Gravity Forms for a client intake tool (though if it did happen, no actual client data was lost or compromised).

Ye Olde PDF (free) The cheapest technology is always the technology you already have. If you’re running a paperless practice, you probably have Adobe Acrobat Professional. Along with Word, you can easily create a great-looking form with fillable data fields. This can be safely circulated to your client on a secure client portal like the WSBA-endorsed Clio. Once returned, you can export the data to .txt or .csv format, then import it into almost any context needed. After experimenting with all the above tools, I ultimately decided this approach was the best for the lengthy immigration questionnaires I send to clients. It’s easy for them to save their work and return to it as needed, then share the form with my firm on Clio once they’re done. And I don’t have to pay for any additional monthly user licenses.

If readers love other tools not mentioned here, please chime in.

This material will be presented at “7 Keys to Managing a 21st Century Practice,” the Solo and Small Practice Section’s annual CLE, on Friday, Jan. 22, 2016, in Seattle. Learn more about the event.

This post first appeared on the Washington State Bar Association's SideBar blog

How can the I-864 be legally enforced?

All marriage-based immigration visas require a promise by the U.S. citizen petitioner to financially support the foreign spouse. The Form I-864 Affidavit of Support is a binding contract between the petitioner and the U.S. government. Financial support under the I-864 contract lasts indefinitely and survives dissolution of marriage. The foreign national spouse may sue to enforce the right to support in state or federal court and is entitled to costs and attorney’s fees. This piece was originally published as: Greg McLawsen, The I-864 Affidavit of Support: An Intro to the Immigration Form You Must Learn to Love/Hate, Vo 48. No. 4 ABA Fam. L. Quarterly (Winter 2015).

Have a question about whether you or a client has a potential case under the I-864? Contact our firm, Immigration Support Advocates here.

 

A young woman, Saanvi, walks into your office. She is a PhD software engineer from India in the process of leaving her husband of four months, who helped her immigrate to the United States. Things simply haven’t worked out. He earns substantially less than she did at the job she just left. She plans on looking for employment, but wants to know if she can get court-ordered support in the meanwhile, and also for down the road in case she is ever unemployed. How do you advise her?

By facilitating her immigration to the United States, Saanvi’s husband entered into an enforceable contract to provide her with financial support. The level of support, while somewhat modest, must be provided for an indefinite period, potentially for the duration of Saanvi’s life. She has the option of enforcing her right in state or federal court, and may get her attorney fees and costs for doing so. It is irrelevant that the marriage was short-lived, and that she has superior earning capacity. It may not even matter whether she could get another job if she chooses.

The immigration form underpinning this paradigm is the I-864, Affidavit of Support. Surprisingly, the form and its robust financial implications have received relatively scant attention within the domestic law bar.[1] An appreciation of the Affidavit of Support will motivate family law attorneys to diligently screen their clients for immigration scenarios. This article provides a brief introduction to the immigration law context wherein the form is used and describes the scope of the financial obligations it imposes (Section 1), then describes the legal tools available to a foreign national to enforce her rights (Section 2) and the legal defenses available to the U.S. sponsor (Section 3).[2]

Immigration law background

U.S. immigration law is a petition-based system. For someone wishing to move permanently to the country there is no general “line” to get in. Nor is there such a thing as a garden-variety “work permit” for which to apply. Rather, the path to permanent residency generally begins with a U.S. business or individual petitioning for the foreign national[3] – think of this as a type of invitation from the U.S. entity or individual to the foreign national. The issues discussed in this paper arise in family-based petitions, where one relative – generally a spouse – petitions for a foreign national relative.

Any foreign national wishing to enter the U.S. is screen through a laundry list of statutory grounds of inadmissibility. These range from crime-related grounds to health-related grounds.[4] A long-standing ground of inadmissibility has barred an individual likely to become a “public charge.”[5] This determination is made either by a consular officer at the time of a visa interview, or at the time the individual applies within the U.S. to become a permanent resident (i.e., receive a green card).[6] A variety of factors are considered in the public charge determination.[7] Since 1996, however, immigration petitioners have been required to promise financial support to certain classes of foreign nationals.[8] The tool by which this is accomplished is the subject of this article.

The I-864, Affidavit of Support[9] is an immigration form submitted by the U.S. immigration petitioner, guaranteeing to provide financial support to a foreign national beneficiary. The petitioner promises to maintain the intending immigrant at 125% of the Federal Poverty Guidelines (“Poverty Guidelines”) and to reimburse government agencies for any means-tested benefits paid to the noncitizen beneficiary.[10] The required support amounts to $14,588 annually ($1,216 per month) for a single-person household, plus $5,075 annually ($423 per month) for each additional household member.[11] The I-864 provides that the sponsor will be held personally liable if he fails to maintain support, and may be sued by either the beneficiary or by a government agency that provided means-tested public benefits.[12]

The I-864 is required in all cases where a U.S. citizen or permanent resident has filed an immigration petition for a foreign family member including for a spouse.[13] Any spousal petition adjudicated since 1996 will have required an I-864 prior to approval. The limited exceptions to this broad rule are beyond the scope of this article and are rare in application. Those applying for a fiancée visa are not required to produce a Form I-864 at the time they are processed by the consular post.[14] Once the foreign national fiancée enters the U.S., however, she must marry within 90 days and thereafter apply to “adjust status” to U.S. permanent resident. During this process she is then required to provide a Form I-864 from her sponsor.[15]

The Form I-864 is also required in a handful of employment-related contexts, wherein a U.S. employer has petitioned for the foreign national.[16] I-864 beneficiaries of employment-based petitions will not be readily identifiable by practitioners unfamiliar with immigration law. But the vast majority of I-864 scenarios arise in family-based petition processes. Any time an individual has achieved immigration status in the U.S. based on a family relationship a practitioner should presume the immigrant is the beneficiary of a Form I-864.

Practitioners should carefully distinguish between the Form I-864 and the Form I-134 Affidavit of Support.[17] The Form I-134 pre-dates the Form I-864 and was used in family-based cases prior to 1996; it is still used in fiancée visa cases. Unlike the Form I-864, courts have determined that the Form I-134 is not enforceable against an immigration sponsor.[18]

The sponsor’s support duty is of indefinite duration. The responsibility lasts until the first occurrence of one of these five events: the beneficiary (1) becomes a U.S. citizen; (2) can be credited with 40 quarters of work; (3) is no longer a permanent resident and has departed the U.S.; (4) after being ordered removed seeks permanent residency based on a different I-864; or (5) dies.[19] It is settled that a couple’s separation or divorce does not terminate the sponsor’s duty.[20] Under U.S. immigration law a foreign national is under no obligation to become a citizen – a process called naturalization. Hence, the I-864 beneficiary could remain in the U.S. as a permanent resident for the duration of her life. At least one court has examined the accrual of work quarters for purposes of ending I-864 obligations, and concluded that quarters may be ‘double stacked,’ so as to credit the beneficiary with her own work quarters as well as those of her sponsor husband.[21] On this approach support duties could terminate in five rather than ten years if both members of a couple are working.

In addition to the primary sponsor (i.e., the immigration petitioner) one or more additional individuals may have joint and several liability as to the I-864 support obligation. First, where the sponsor is unable to demonstrate adequate financial wherewithal, one or more additional “joint-sponsors” may be used to meet the required level.[22] Such joint sponsors may be any adult U.S. citizen or lawful permanent resident currently residing in the United States.[23] Joint sponsors typically are – but are not required to be – family or close friends of the primary sponsor. A joint sponsor executes a separate Form I-864, indicating herself as a joint rather than primary sponsor. Once submitted, the joint sponsor’s liability is joint and several with the primary sponsor.[24]

Second, the primary sponsor may use income of qualifying household members to meet the requisite support level. In order to use such income the household member must execute a Form I-864A.[25] The household member becomes jointly and severally liable – and this paradigm has been found enforceable.[26]

Finally, it should be noted that in some scenarios it may be no small matter for counsel to lay hands on the I-864 executed by a would-be defendant. Depending on the procedural posture of the immigration case, the signed I-864 will have been filed with U.S. Citizenship and Immigration Services or the Department of State. The beneficiary may request a copy of the executed form her immigration via a Freedom of Information Act (FOIA) request.[27] Yet because certain immigration records are protected by the Federal Privacy Act, portions of the I-864 – such as the sponsor’s name and signature – may be redacted. At least one colleague reports having had had his request completely denied outright.[28] An alternative method of establishing the requisite factual record could be to call an immigration attorney as an expert at trial. The attorney could be qualified to testify to the proposition that the immigrant visa or permanent residency card could not have been issued unless the sponsor had executed an I-864.

If the sponsor and beneficiary were represented by an attorney in the immigration petition, it may be possible for the beneficiary to request a copy of the signed I-864 from that attorney. Considerable attention has been given within the immigration lawyer community to the conflicts of interest that may arise when an attorney represents both a sponsor and beneficiary.[29] It has long been common practice for a single attorney to represent the sponsor, drafting the I-864 for his signature, as well as the beneficiary. Some immigration attorneys take the conservative approach of asking the sponsor to either draft the I-864 form himself or else retain separate counsel, but the prevailing approach appears to be for the principal attorney to draft the form. In this event the I-864 is properly viewed as part of the beneficiary’s client file, and in most jurisdictions the beneficiary client will have a proprietary right to obtain a copy of the form.

The mighty I-864 sword

Upon learning of the I-864, family law practitioners often respond with something akin to the five stages of grief and loss. First, practitioners respond with denial, refusing to believe our government would impose such a far-reaching support obligation on a U.S. citizen sponsor. Anger and indignation are then directed at the lawmakers who would impose such rules. Next comes a round of bargaining, where the lawyer looks for the escape valves that must exist somewhere. Since – as described below with respect to contract defenses – such escapes valves are few and far between, the reality of the legal landscape then sets in and settlement is discussed in earnest. This section describes the contours of the I-864 sword.

An example will help underscore that we are talking about a different sort of legal creature: the I-864 beneficiary has no duty to mitigate damages by seeking employment. The leading opinion on this proposition was handed down by Judge Richard Posner in the Seventh Circuit.[30] The court found that the Form I-864 itself, as well as the federal statute and regulations, were silent as to whether the beneficiary has a duty to seek employment.[31] Instead, the decisive factor was the clear statutory purpose behind the I-864: to prevent the noncitizen from becoming a public charge.[32] While the court’s holding relied in part on federal common law,[33] state courts have likewise held that the I-864 beneficiary has no duty to mitigate damages by seeking employment.[34]

Let’s explore what enforcement looks like at the ground level. There is no longer any question that I-864 beneficiaries have the legal ability to enforce their rights to support under the I-864 – they can and they do.[35] They have standing to do so as third party beneficiaries to the I-864 contract.[36] The only remaining quibbles are over the appropriate vehicles and forums to enforce those rights. It is most certainly false to shrug off the I-864 as a ‘federal law issue’ since enforcement may be had in “any appropriate court.”[37] To summarize the options available: (1) the I-864 support obligations generally will not be enforced via a spousal maintenance order; (2) without known exception I-864 rights may be enforced via a contract claim in state courts; and (3) I-864 rights generally may be enforced in federal court, even absent diversity of parties (except in the Middle District of Florida).

The sponsor’s support obligation commences at the moment the beneficiary becomes a permanent resident.[38] For a couple who has gone through the visa process at a U.S. consulate aboard, residency status commences when the foreign national enters the U.S. If the foreign national spouse was already present in the U.S. when they began the marriage-based immigration process, residency will commence after the couple completes the ‘adjustment of status’ process. In either event the residency period can be assessed by examining the beneficiary’s I-551 residency card (i.e., “green card”), which serves as documentary evidence of the individual’s residency status.[39]

The fact that the beneficiary has achieved residency status is the sole event required to trigger the I-864 support duty. It is not required, for example, that the beneficiary first receive means-tested public benefits.[40] The sponsor’s obligation to repay public benefits is wholly separate from his income support responsibility.

Before recovery is possible, the beneficiary’s household income must fall beneath 125% of the Poverty Guidelines, without which event there is no breach on the part of the sponsor.[41] If a beneficiary has an independent source of “income,” the sponsor need pay only the difference required to bring the beneficiary to 125% of the Poverty Guidelines.[42] But what counts as income for this purpose? Courts have generally ignored (or overlooked?) the fact that the I-864 regulations define income by reference to federal income tax guidelines.[43]

Recall that the level of required support is tied to household size. The I-864 regulations expressly describe the individuals included in calculating household size, which includes the sponsor himself.[44] Does this mean the sponsor must pay the beneficiary support for a household of two, even if the beneficiary is living alone? The only court to carefully consider the issue has recognized that it must, “strike a balance between ensuring that the immigrant’s income is sufficient to prevent her from becoming a public charge while preventing unjust enrichment to the immigrant.”[45] Where the beneficiary is living with a third party, such as another family members, courts properly make a fact-based determination of the support (if any) being received by the beneficiary, rather than automatically imputing income.[46]

Every known case in which an I-864 beneficiary has recovered from a sponsor in state court has arisen in family law proceedings. Yet confusion has persisted over how the I-864 comes into play. Beneficiaries have pursued support both as a standalone contract cause of action, joined to a dissolution proceeding, and also as a basis for awarding spousal maintenance. As family law practitioners are well aware, when it comes to enforcement this is a distinction with a difference for the beneficiary.[47] While some courts have allowed I-864 obligations to be bootstrapped into spousal maintenance this appears to be the minority approach.

In Love v. Love a Pennsylvania trial court was reversed for refusing to “apply” the I-864 when setting a spousal support obligation.[48] The appeals court held that the I-864 merited deviation from the standard support schedule, though it did not specify which statutory factor merited the deviation.[49] An energetic dissent in Love argued that incorporating a contractual agreement into a support order violates constitutional prohibitions on imprisonment for debts, since jail is an enforcement mechanism available for support orders.[50] By contrast, in Matter of Khan an intermediate Washington State appeals court held that a trial court did not abuse its discretion by limiting the duration of maintenance based on the I-864.[51] Among other rationales for its holding, the Khan Court was unable to locate a statutory hook that made I-864 obligations relevant to a spousal maintenance determination (which in Washington is governed by statute).[52] It may be largely a matter of a jurisdiction’s spousal maintenance statute and case law as to whether the I-864 will serve as a basis for ordering maintenance.

When I-864 beneficiaries pursue support outside the context of dissolution proceedings it is typically via a federal district court action. While a family law practitioner may never have direct involvement in such a case, some background is important, as dissolution proceedings may substantially impact a client’s financial rights in a federal action.

The vast majority of federal courts have easily concluded they possess federal question subject matter jurisdiction over a suit by an I-864 beneficiary against a sponsor.[53] The only current exception appears to be the Middle District of Florida.[54] Likewise, federal courts typically conclude that I-864 sponsor-defendants have submitted to personal jurisdiction.[55] The Federal District Court for Utah departed from this view, however, holding that it lacked personal jurisdiction over a sponsor-defendant where the sponsor lacked minimum contacts with the forum state.[56] This holding is baffling, since in the I-864 contract itself the sponsor expressly submits to personal jurisdiction in any state or federal court.[57]

If I-864 claims are litigated mostly in federal court,[58] why should this be of concern to family law practitioners? Because failure to assert an I-864 claim in a dissolution could preclude a subsequent claim in federal court. Certainly there is a strong argument that issue preclusion will bar a subsequent claim where the I-864 was in fact adjudicated in a dissolution action. [59] In Nguyen v. Dean, a federal court dismissed a case on summary judgment where the plaintiff-beneficiary had previously argued to the family law court that spousal support should be ordered based on the Affidavit of Support obligation.[60]

The more serious concern for family law practitioners is whether claim preclusion would bar a subsequent lawsuit where the beneficiary should have raised I-864 enforcement in the family law court. At least one court has suggested that a subsequent I-864 claim would be barred when the beneficiary should have discovered the claim at the time of a dissolution action.[61] Another has found that a subsequent claim was barred where the beneficiary presented argument concerning the I-864 in a dissolution action, but the issue was later dropped.[62] Other courts have been fairly liberal in allowing I-864 plaintiffs to avoid claim preclusion in subsequent actions.[63]

Without attempting to resolve the claim preclusion issue, may it suffice to say that family law practitioners should be vigilant to screen for clients who may be I-864 beneficiaries. Failing to spot that issue could have seriously detrimental effect on the client’s financial rights.

Abstention doctrines may also bar federal litigation of I-864 claims when there is related state court activity, but such matters are beyond the scope of this article.[64]

The I-864 warns the sponsor: “If you are sued, and the court enters a judgment against you… [y]ou may also be required to pay the costs of collection, including attorney fees.”[65] Indeed, courts have proved willing to award fees, subject to typical limitations of reasonableness.[66] Following the language of the I-864, the plaintiff-beneficiary is entitled to fees only if she prevails and a judgment is entered.[67] The beneficiary’s attorney must be vigilant to segment fees in such a way it is clear which efforts went towards I-864 enforcement rather than collateral claims.[68] Especially where an I-864 issue arises in a divorce proceeding, practitioners are well-advised to carefully document fees specifically related to I-864 enforcement.

As a final kicker: both courts to consider the matter have held that I-864 obligations are non-dischargeable in bankruptcy, on the view they are tantamount to domestic support obligations.[69] Hence a judgment on an I-864 matter may follow the sponsor-defendant to the grave.

Defenses

Whether raised as an argument for spousal maintenance, or cause of action in its own right, the I-864 sponsor’s obligation is fundamentally contractual in nature. Defendants have tested a wide array of traditional contract law defenses. In short, categorical defenses – directly challenging the I-864 as unenforceable – have been roundly rejected. Fact-specific defenses, chiefly fraud in the inducement, may be tenable, but require rigorous proof and have typically failed.

The government gets a boatload of value from the I-864 contract: the sponsor’s promise to financially safeguard an immigrant and indemnify the government for the cost of public benefits. And in return the I-864 sponsor gets… what exactly? More than one sponsor has argued that the answer is “nothing,” and that the agreement is void for lack of consideration.

While not a throw-away argument, it has not been a winner to date.[70] In short the ‘return value’ for the sponsor’s promise is the government’s agreement to allow the beneficiary to avoid categorical public charge inadmissibility. Recall that but-for the duly executed I-864 the beneficiary would be per se inadmissible to the U.S. The Form I-864 recites that, “The intending immigrant’s becoming a permanent resident is the ‘consideration’ for the contract.”[71] In other words, “your beneficiary isn’t going to become a permanent resident unless you sign this agreement.”

Sponsors have attempted to avoid I-864 liability by arguing they were fraudulently induced to sign Affidavits of Support. To date, all such known defenses have died at summary judgment. No known sponsor has yet succeeded on a fraud defense, either in motion practice or at trial. But it is clear that – on the right set of facts – a Sponsor could theoretically avoid liability by meeting the steep burden of proving up a fraud defense.

Anyone familiar with Sandra Bullock’s oeuvre will be familiar with the scrutiny that faces couples going through the immigration process.[72] A sponsor can argue that he got duped into marrying the beneficiary, but that will be terribly hard to prove on summary judgment.[73] In rather far-fetched dicta, one federal court has suggested that a sponsor waives the contact defense of fraud if he fails to argue “allegations of fraud” in the prior dissolution action.[74]

An I-864 sponsor’s financial obligations are substantial and last indefinitely, even where the relationship underlying the obligation was short-lived. In such circumstances, financial support duties under the I-864 may far outstrip the amount of alimony to which the immigrant-beneficiary would be entitled. Moreover, I-864 sponsors may lack full appreciation for the solemnity of their obligations at the time they execute a stack of immigration forms for their beneficiary family member. Accordingly, sponsors have argued to courts that the obligations imposed by the I-864 are so harsh as to render the agreement unconscionable.[75] To date, these arguments have failed.[76] One court opined that it was reasonable that the sponsor would want to support his wife in the immigration process, as well as financially (he was doing so already).[77] Another noted the cautionary recitals in the I-864 form.[78]

A major unresolved issue is whether a noncitizen-beneficiary and sponsor may enter into a nuptial agreement that limits or eliminates the sponsor’s duties to the noncitizen-beneficiary under the I-864.[79] The majority of courts to consider waivers of I-864 rights have found such agreements to be unenforceable, though the reasons for this holding are misguided.

To the extent straw-counting qualifies as legal analysis, the court count is three to one in favor of the proposition that I-864 obligations cannot be waived.[80] The rationale supporting this view includes: that I-864 rights are “imposed by federal law” an inherently non-waiveable;[81] that a prenuptial agreement is modified by subsequent execution of an I-864;[82] and that “a prenuptial agreement or other waiver by the sponsored immigrant” is not one of the five events that end I-864 obligations under federal regulations.[83] One court deployed the following syllogism: under federal law the government may accept only an enforceable I-864 when the beneficiary immigrates; the government did accept this I-864; therefore regardless of the nuptial agreement this I-864 must be enforceable.[84]

Most confounding is the fact that these views run contrary to those of the Department of Homeland Security (DHS), the federal agency charged with implementation of the I-864. In the rulemaking process for the I-864 DHS itself opined that a beneficiary may elect to waive her right to enforcement of the I-864.[85] This is consistent with the widely-recited view that a foreign national is a third-party contract beneficiary to the I-864. Contract beneficiaries may elect to waive their rights if they wish. Congress could have – but did not – elect to exercise its plenary power to create a statutory cause of action against immigration petitioners. It chose instead to use a contract as the vehicle to ensure support, and private contract rights are subject to waiver.

Conclusion

Around seven percent of U.S. marriages involve one or more foreign-born spouse.[86] In a career spanning potentially thousands of matrimonial matters, it is likely that a family law attorney will encounter one or more foreign-born parties. It is recommended that family law firms implement simple but strict protocols at the client intake stage to ensure they are screening for citizenship. Firms should assess both whether their client, as well as the opposing party, are U.S. citizens. If either party is foreign born a careful assessment should be made of how they secured immigration status in the United States. If status was secured through the spouse, it’s time to review this article.

[1] But see Geoffrey A. Hoffman, Immigration Form I-864 (Affidavit of Support) and Efforts to Collect Damages as Support Obligations Against Divorced Spouses — What Practitioners Need to Know, 83 Fla. Bar. J. 9 (Oct. 2009) (articulately sounding the alarm bell).

[2] The issues discussed herein are expanded upon be a pair of articles by the author, which analyze all available U.S. case law concerning enforcement of the I-864, both available for download at http://tinyurl.com/cocz6qp. Cf. Greg McLawsen, Suing on the I-864 Affidavit of Support, 17 Bender’s Immigr. Bull. 1943 (Dec. 15, 2012) (hereinafter McLawsen, Suing on the I-864); Greg McLawsen, Suing on the I-864 Affidavit of Support: March 2014 Update, 19 Bender’s Immig. Bull. 1943 343 (Apr. 1, 2014) (hereinafter McLawsen, Suing on the I-864: March 2014 Update).

[3] Since this is law of which we are speaking, exceptions naturally abound.

[4] See 8 U.S.C. § 1182.

[5] 8 U.S.C. § 1182(a)(4).

[6] See id. The determination is also made at the U.S. port of entry, though the public charge adjudication in family-based cases is chiefly done at the visa interview and residency application.

[7] 8 U.S.C. § 1182(a)(4)(B).

[8] Interim regulations for the I-864 were first published in 1997 and were finalized July 21, 2006. Affidavits of Support on Behalf of Immigrants, 62 Fed. Reg. 54346 (Oct. 20, 1997) (to be codified at 8 C.F.R. § 213.a1 et seq.) (hereinafter Preliminary Rules); Affidavits of Support on Behalf of Immigrants, 71 Fed. Reg. 35732 (June 21, 2006) (same) (hereinafter Final Rules).

[9] See Form I-864, Affidavit of Support (rev’d Mar. 22, 2013), available at http://www.uscis.gov/files/form/i-864.pdf (last visited Jan. 8, 2015).

[10] Form I-864, supra note 13, at 6. See also 8 U.S.C. § 1183a(a)(1)(A) (same requirement by statute).

[11] Annual Update of the HHS Poverty Guidelines, 79 Fed. Reg. 3593, 3593 (Jan. 22, 2014).

[12] Form I-864, supra note 13, at 7. In lieu of tiptoeing around gendered pronouns, beneficiaries and sponsors will be assigned the feminine and masculine herein, respectively, as this represents the vast majority of cases discussed herein.

[13] 8 U.S.C. § 1182(a)(4)(C).

[14] Indeed, the consular post may not require the Form I-864 for a fiancée. 9 FAM § 40.41 Public Charge n.12.6.

[15] U.S. Dep’t of State, Cable No. 98-State-112,510, I-864 Affidavit of Support Update Number 16: Public Information Sheet (no date provided).

[16] Cf. Charles Gordon et al., Immigration Law and Procedure § 63.05 [5][b].

[17] The Form I-134 Affidavit of Support was used prior to passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), Pub. L. No. 104-208, 110 Stat. 3009. Cf. Michael J. Sheridan, The New Affidavit of Support and Other 1996 Amendments to Immigration and Welfare Provisions Designed to Prevent Aliens from Becoming Public Charges, 31 Creighton L. Rev. 741 (1998) (discussing changes to the Affidavit of Support). The Form I-134 may still be used to overcome public charge inadmissibility for intending immigrants not required to file the I-864. See Instructions for Form I-134, Affidavit of Support (rev’d Feb. 19, 2014), available at http://www.uscis.gov/files/form/i-134instr.pdf (last visited Jan. 8, 2015).

[18] See Rojas-Martinez v. Acevedo-Rivera, 2010 U.S. Dist. LEXIS 56187 (D. P.R. June 8, 2010) (granting defendant’s motion to dismiss; holding that I-134 was not an enforceable contract).

[19] Form I-864, supra note 13, p. 7. See also 8 U.S.C. § 1183a(a)(2), (3) (describing period of enforceability).

[20] Hrachova v. Cook, No. 5:09-cv-95-Oc-GRJ, 2009 U.S. Dist. LEXIS 102067, at *3 (M.D. Fla. Nov. 3, 2009) ("[t]he view that divorce does not terminate the obligation of a sponsor has been recognized by every federal court that has addressed the issue").

[21] Davis v. Davis, No. WD-11-006 (Ohio Ct. App. May 11, 2012), available at http://tinyurl.com/olyvac3 (last visited Jan. 9, 2015).

[22] 8 C.F.R. § 213a.2(c)(2)(iii)(C).

[23] 8 U.S.C. § 1183a(f)(1).

[24] See, e.g., Matlob v. Farhan, Civil No. WDQ-11-1943, 2014 WL 1401924 (D.Md. May 2, 2014) (Memo. Op.) (following bench trial, holding joint sponsor jointly and severally liable for $10,908 in damages).

[25] See Form I-864A, Contract Between Sponsor and Household Member (rev’d Mar. 22, 2013), available at http://www.uscis.gov/sites/default/files/files/form/i-864a.pdf (last visited Jan. 8, 2015). Note that unlike the I-864, the I-864A does not set forth a complete recitation of the immigrant-beneficiary’s enforcement rights under the I-864, such as the right to attorney fees. Id., Page 3.

[26] Panchal v. Panchal, 2013 IL App (4th) 120532-U, No. 4-12-0532, 2013 Ill. App. LEXIS 1864, at *11 (Ill. App. Ct. 4th Dist. 2013). See also Liepe v. Liepe, Civil No. 12–00040 (RBK/JS), 2012 U.S. Dist. LEXIS 174246 (D.N.J. Dec. 10, 2012) (denying plaintiffs’ summary judgment motion against household member where plaintiffs failed to establish that the defendant executed an I-864A.

[27] Cf. USCIS Freedom of Information Act and Privacy Act, http://tinyurl.com/mulssd6 (last visited Jan. 8, 2015).

[28] Email from Robert Gibbs, Founding Partner, Gibbs Houston Pauw, to the author (Aug., 6, 2013, 15:18 PST) (on file with author but containing confidential client information).

[29] See, e.g.,. Counterpoint: Cyrus Mehta, Counterpoint: Ethically Handling Conflicts Between Two Clients Through the ''Golden Mean”, 12-16 Bender's Immigr. Bull. 5 (2007); Austin T. Fragomen and Nadia H. Yakoob, No Easy Way Out: The Ethical Dilemmas of Dual Representation, 21 Geo. Immigr. L.J. 521 (Summer 2007); Bruce A. Hake, Dual Representation in Immigration Practice: The Simple Solution Is the Wrong Solution, 5 Geo. Immigr. L.J. 581 (Fall 1991). See also, Doug Penn & Lisa York, How to Ethically Handle an I-864 Joint Sponsor, http://tinyurl.com/pp2h37t (AILA InfoNet Doc. No. 12080162) (posted No. 7, 2012).

[30] Liu v. Mund, 686 F.3d 418 (7th Cir. 2012).

[31] Liu, 686 F.3d 418.

[32] Id., at 422. But see Ainsworth v. Ainsworth, No. 02-1137-A, 2004 U.S. Dist. LEXIS 28962, at *4 (M.D. La. Apr. 29, 2004) (“the entire purpose of the affidavit is to ensure that immigrants do not become a ‘public charge’”), recommendation rejected, 2004 U.S. Dist. LEXIS 28961 (May 27, 2004).

[33] Id., at 423, 421.

[34] See, e.g., Love v. Love, 33 A.3d 1268 (Pa. Super. Ct. 2011). But see Mathieson v. Mathieson, No. 10–1158, 2011 U.S. Dist. LEXIS 44054, at *10, n. 3 (W.D. Penn., Apr. 25, 2011) (noting in dicta that the court would have held that income could be imputed to the beneficiary based on earning capacity); Barnett v. Barnett, 238 P.3d 594, 598 (Alaska 2010) (holding that “[e]xisting case law” supported the conclusion that earning capacity should be imputed to an I-864 beneficiary).

[35] See, e.g., Moody v. Sorokina, 40 A.D.2d 14, 19 (N.Y.S. 2007) (holding that trial court erred in determining I-864 created no private cause of action).

[36] See, e.g., Stump v. Stump, No. 1:04-CV-253-TS, 2005 U.S. Dist. LEXIS 45729, at *19 (D. Ind. May 27, 2005) (memo op.) (granting in part plaintiff’s motion for summary judgment; rejecting argument that noncitizen could have failed to perform duties under the I-864, as there was no support for proposition that third-party beneficiary could breach a contract).

[37] 8 U.S.C. § 1183a(e) (emphasis added). See also 8 U.S.C. § 1183a(a)(1)(C) (the sponsor “agrees to submit to the jurisdiction of any federal or state court for the purpose of actions brought”).

[38] See 8 C.F.R. § 213a.2(e) (support obligations commence when intending immigrant is granted admission as immigrant or adjustment of status); Chavez v. Chavez, Civil No. CL10-6528, 2010 Va. Cir. LEXIS 319 (Va. Cir. Crt. Dec. 1, 2010) (finding that “becoming a permanent resident” is the condition precedent).

[39] Possession of a facially valid residency card does not connote, per se, status as a permanent resident.

[40] Baines v. Baines, No. E2009-00180-COA-R3-CV, 2009 Tenn. App. LEXIS 761 (Tenn. Ct. App. Nov. 13, 2009) (holding that such an argument was inconsistent with the “clear language” of the statute).

[41] See, e.g., In re Marriage of Sandhu, 207 P.3d 1067 (Kan. Ct. App. 2009) (holding that beneficiary had no cause of action due to earnings over 125% of the Poverty Guidelines). See also Iannuzzelli v. Lovett, 981 So.2d 557 (Fla. Dist. Ct. App. 2008) (noting that beneficiary-plaintiff was awarded no damages at trial because she had failed to demonstrate “that she ha[d] been unable to sustain herself at 125% of the poverty level since her separation from the marriage”).

[42] Cheshire, 2006 U.S. Dist. LEXIS 26602, at *17.

[43] 8 C.F.R. § 213a.1. See also Love v. Love, 33 A. 3d 1268, 1277 (Pa. Super. Ct. 2011) (noting the “narrow” definition of income under state domestic code). Cf. McLawsen, Suing on the I-864, supra note 3, § I.C.

[44] 8 C.F.R. § 213a.1.

[45] Erler v. Erler, No. CV-12-02793-CRB, 2013 U.S. Dist. LEXIS 165814, at *21 (N.D. Cal. Nov. 21, 2013).

[46] See, e.g., Villars v. Villars, 305 P.3d 321 (Alaska 2013) (rejecting trial court’s finding that the beneficiary had received as “income” the entire earnings of another man with whom she had resided for part of the time period in question).

[47] Unlike contract judgments, spousal maintenance orders have special enforcement mechanisms in many states, making enforcement cheaper and easier. Furthermore, spousal maintenance – unlike payment on a contract judgment – is counted as income to the recipient for purposes of federal income tax, and is deductible for the payer.

[48] 33 A. 3d 1268 (Pa. Super. Ct. 2011). See also In re Marriage of Kamali, 356 S.W.3d 544, 547 (Tex. App. Nov. 16 2011) (holding that trial court erred in limiting support payments to an “arbitrary” 36-month period).

[49] Id., at 1273. See Pa. R. C. P. 1910.16-5 (grounds for deviating from support guidelines), available at http://tinyurl.com/lf4qhh2 (last visited Jan. 8, 2015).

[50] Id., at 1281 (Freedberg, J., dissenting).

[51] 332 P.3d 1016 (Wash. App. Div. II 2014). See also Greenleaf v. Greenleaf, No. 299131, 2011 WL 4503303 (Mich. Ct. App., Sep. 29, 2011) (last visited Oct. 18, 2012) (holding that a lower court erred by incorporating the I-864 into a support order). See also Varnes v. Varnes, No. 13-08-00448-CV, 2009 WL 1089471 (Tex. App., Apr. 23, 2009) (noting it was undisputed that beneficiary was not entitled to spousal support based on I-864 under either of the two statutory grounds allowed by Texas law).

[52] Id. (stating the issue narrowly, that none of the factors concerned “one spouse’s contractual obligation under federal immigration law”).

[53] See, e.g., Pavlenco v. Pearsall, No. 13-CV-1953 (JS)(AKT), 2013 U.S. Dist. LEXIS 169092 (E.D.N.Y. Nov. 27, 2013) (memo. order); Liu v. Mund, 686 F.3d 418 (7th Cir. 2012); Montgomery v. Montgomery, 764 F. Supp. 2d 328, 330 (D. N.H. Feb. 9, 2011); Skorychenko v. Tompkins, 08-cv-626-slc, 2009 U.S. Dist. LEXIS 4328 (W.D. Wis. Jan. 20, 2009); Stump v. Stump, No. 1:04-CV-253-TS, 2005 U.S. Dist. LEXIS 26022, *1 (N.D. Ind. Oct. 25, 2005); Ainsworth v. Ainsworth, No. 02-1137-A, 2004 U.S. Dist. LEXIS 28961, at *4 (M.D. La., May 27 2004); Tornheim v. Kohn, No. No. 00-CV-5084 (SJ), 2002 U.S. Dist. LEXIS 27914, (E.D. N.Y. Mar. 26, 2002) ("Plaintiff's suit arises under the laws of the United States . . .").

[54] Vavilova v. Rimoczi, 6:12-cv-1471-Orl-28GJK, 2012 U.S. Dist. LEXIS 183714, at *9 (M.D. Fla. Dec. 10, 2012) (finding that Congress has not expressly exercised the Supremacy Clause to divest state courts of concurrent jurisdiction); Winters v. Winters, No. 6:12-cv-536-Orl-37DAB, 2012 U.S. Dist. LEXIS 75069, at *5 (M.D. Fla. Apr. 25, 2012) (“while the federal statute requires execution of the affidavit, it is the affidavit and not the statute that creates the support obligation”). But see Cheshire v. Cheshire, No. 3:05-cv-00453-TJC-MCR, 2006 U.S. Dist. LEXIS 26602, at *1 (M.D. Fla. May 4, 2006) (stating that the court has jurisdiction pursuant to the I-864 statute).

[55] See, e.g., Younis v. Rarooqi, 597 F. Supp. 2d 552, 554 (D. Md. Feb. 10, 2009) (“[t]he signing sponsor submits himself to the personal jurisdiction of any federal or state court in which a civil lawsuit to enforce the affidavit has been brought”) (citing 8 U.S.C. § 1183a(a)(1)(C)).

[56] Delima v. Burres, No. 2:12–cv–00469–DBP, 2013 U.S. Dist. LEXIS 26995, at *12 (D. Utah Feb. 26, 2013). It appears the parties hired a Utah law firm to prepare immigration filings, including the I-864, but executed the Form in Montana.

[57] By signing the Form I-864, the sponsor also agrees to “submit to the personal jurisdiction of any Federal or State court that has subject matter jurisdiction of a lawsuit against [the sponsor] to enforce [his/her] obligations under this Form I-864.” Form I-864, at 7

[58] The choice of many beneficiaries to enforce the I-864 in federal rather than state court is somewhat puzzling. Practitioners may be inclined toward federal court on the partially-mistaken view that I-864 enforcement involves “federal law.” The better understanding is that enforcement is a suit on a contract, precisely the type of dispute that a state court of general jurisdiction is competent to adjudicate.

[59] Procedural doctrines prohibit the litigation both of matters that have already been actually litigated and that could have been litigated. The former is referred to as issue preclusion, the latter as claim preclusion. Cf. 18 Wright § 4406.

[60] No. 10–6138–AA, 2011 U.S. Dist. LEXIS 3803 (D. Or. Jan. 14, 2011) (granting defendant’s motion for summary judgment). By contrast, issue preclusion did not prevent the plaintiff-beneficiary’s federal court action in Chang v. Crabill, where the family law court stated that “[n]o request was made by the respondent for spousal maintenance of any kind.” No. 1:10 CV 78, 2011 U.S. Dist. LEXIS 67501 (N.D. Ind. June 21, 2011).

[61] Chang, 2011 U.S. Dist. LEXIS 67501.

[62] Yaguil v. Lee, 2:14-cv-00110-JAM-DAD, 2014 WL 1400959 (E.D.Cal.,2014) (Order Granting Defendant’s Motion to Dismiss).

[63] See, e.g., Matter of Khan, 332 P.3d 1016 (Wash. App. Div. II 2014) (stating in dicta that the beneficiary would not be prevent from maintaining a subsequent suit, as “the trial court did not adjudicate an action for beach of the sponsor’s I-864 obligation”); Yuryeva v. McManus, No. 01-12-00988-CV, 2013 Tex. App. LEXIS 14419, at *19 (Tex. App. Houston 1st Dist. Nov. 26, 2013) (memo. op.) (stating in dicta that an immigrant-beneficiary could bring a subsequent contract action on the I-864, despite failing to raise enforcement in the context of her divorce proceeding); Nasir v. Shah, No. 01-12-00988-CV, 2013 Tex. App. LEXIS 14419, at *19 (Tex. App. Houston 1st Dist. Nov. 26, 2013) (memo. op.) (“[w]hether or not plaintiff sought or was entitled to spousal support is irrelevant to defendants’ [sic.] obligation to maintain plaintiff at 125% [Poverty Guidelines]”).

[64] Cf. McLawsen, Suing on the I-864: March 2014 Update, supra note 3, § II.A.

[65] Form I-864, supra note 13, p. 7. See also 8 U.S.C. § 1183a(c) (remedies available to enforce the Affidavit of Support include “payment of legal fees and other costs of collection”).

[66] See, e.g., Sloan v. Uwimana, No. 1:11-cv-502 (GBL/IDD), 2012 U.S. Dist. LEXIS 48723 (E.D. Va. Apr. 4, 2012) (awarding fees in reliance on 8 U.S.C. § 1183a(c), subject to scrutiny for reasonableness pursuant to the Lodestar method).

[67] See, e.g., Barnett v. Barnett, 238 P.3d 594, 603 (Alaska 2010) (holding that fees were appropriately denied in absence of judgment to enforce I-864); Iannuzzelli v. Lovett, 981 So.2d 557 (Fla. Dist. Ct. App. 2008) (holding that the fees were appropriately denied in absence of damages; note that action was based on a prior iteration of Form I-864).

[68] Panchal v. Panchal, No. 4-12-0532, 2013 Ill. App. LEXIS 1864 (Ill. App. Ct. 4th Dist. 2013) (holding that the plaintiff-beneficiary could recover fees for prosecuting a contract claim on the I-864, but not for a concurrently pending dissolution action).

[69] Matter of Ortiz, No. 6:11-bk-07092-KSJ, 2012 Bankr. LEXIS 5324 (Bankr. M.D. Fla. Oct. 31, 2012) (granting summary judgment to beneficiary); Hrachova v. Cook, 473 B.R. 468 (Bankr. M.D. Fla. 2012).

[70] Stump v. Stump, No. 1:04-CV-253-TS, 2005 U.S. Dist. LEXIS 26022, at *6-7 (N.D. Ind. Oct. 25, 2005) (“The [sponsor] made this promise as consideration for the [beneficiary’s] application not being denied on the grounds that she was an immigrant likely to become a public charge”); Baines v. Baines, No. E2009-00180-COA-R3-CV, 2009 Tenn. App. LEXIS 761, at *13-14 (Tenn. Ct. App. Nov. 13, 2009); Cheshire v. Cheshire, No. 3:05-cv-00453-TJC-MCR, 2006 U.S. Dist. LEXIS 26602, at *11-12 (M.D. Fla. May 4, 2006).

[71] Form I-864, supra note 13.

[72] Cf. The Proposal (Walt Disney Studios 2009). The pertinent reference can be located at http://tinyurl.com/pmuxuyq (last visited Jan. 8, 2014).

[73] See, e.g., Farhan v. Farhan, Civil No. WDQ-11-1943, 2013 U.S. Dist. LEXIS 21702, at *3 (D. Md. Feb. 5, 2013) (conflicting evidence about subjective intent behind marriage, aside from the fact they had spent minimal time together and that the marriage had never been consummated, prevented summary judgment to I-864 defendant on defense of fraud). In Carlbog v. Tompkins the Sponsor alleged produced inadmissible translations of emails purporting to show that the I-864 beneficiary had designed a scam marriage. 10-cv-187-bbc, 2010 U.S. Dist. LEXIS 117252, at *8 (W.D. Wi., Nov. 3, 2010). But even if they had been admitted, the court held, the emails lacked sufficient particularity to pass summary judgment on the question of fraud. See also Cheshire v. Cheshire, No. 3:05-cv-00453-TJC-MCR, 2006 U.S. Dist. LEXIS 26602 (M.D. Fl., May 4, 2006) (following trial, finding no evidence adequate to prove plaintiff-beneficiary had defrauded defendant-sponsor into signing Form I-864 with a false promise of marriage, despite early marital problems).

[74] Erler v. Erler, No. CV-12-02793-CRB, 2013 U.S. Dist. LEXIS 165814, at *11 (N.D. Cal. Nov. 21, 2013) (order denying plaintiff’s motion for summary judgment and giving parties notice regarding possible summary judgment for defendant).

[75] A contract is rendered unenforceable if it was unconscionable at the time the agreement was entered into. See Restatement (2nd) § 208.

[76] Baines v. Baines, No. E2009-00180-COA-R3-CV, 2009 Tenn. App. LEXIS 761 (Tenn. Ct. App. Nov. 13, 2009). Cf. Kerry Abrams, Immigration Law and the Regulation of Marriage, 12-20 Benders Immigr. Bull. 1 (2007), text accompanying notes 376-80 (arguing that sponsor may not understand responsibilities under Affidavit).

[77] Id., at *16.

[78] Al-Mansour v Shraim, No. CCB-10-1729, 2011 U.S. Dist. LEXIS 9864 (D. Md., Feb. 2, 2011) (rejecting argument that the I-864 was an unconscionable contract of adhesion).

[79] Cf. Shereen C. Chen, The Affidavit of Support and its Impact on Nuptial Agreements, 227 N.J. Law. 35 (April 2004) (discussing I-864 in relation to Uniform Premarital Agreement Act).

[80] Compare Toure-Davis v. Davis, No. WGC-13-916, 2014 U.S. Dist. LEXIS 42522 (Dist. M.D. Mar. 28, 2014) and Erler v. Erler No. CV-12-02793-CRB, 2013 U.S. Dist. LEXIS 165814, at *1 (N.D. Cal. Nov. 21, 2013) and Shah v. Shah, Civil No. 12–4648 (RBK/KMW), 2014 U.S. Dist. LEXIS 4596 (D.N.J. Jan. 14, 2014) (all holding that nuptial agreements failed to waive I-864 enforcement); with Blain v. Herrell, No. 10-00072 ACK-KSC, 2010 U.S. Dist. LEXIS 76257 (D. Haw. July 21, 2010) (stating in dicta that nuptial agreements may waive I-864 support).

[81] Toure-Davis, 2014 U.S. Dist. LEXIS 42522, at *23. See also Erler, 2013 U.S. Dist. LEXIS 165814, at *7(reasoning that the defendant-sponsor could not “unilaterally absolve himself of his contractual obligation with the government by contracting with a third party”).

[82] Toure-Davis, 2014 U.S. Dist. LEXIS 42522, at *15; Erler, 2013 U.S. Dist. LEXIS 165814, at *7, n.1.

[83] Shah, 2014 U.S. Dist. LEXIS 4596, at *9.

[84] Id. at *11.

[85] Affidavits of Support on Behalf of Immigrants, 71 Fed. Reg. 35732, 35740 (June 21, 2006) (but clarifying that a sponsor’s duties to reimburse government agencies would remain unchanged).

[86] Luke Larsen and Nathan Walters, United States Census Bureau, Married-Couple Households by Nativity Status: 2011 (Sep. 2013), available at http://www.census.gov/population/foreign/ (last visited Jan. 22, 2014).

The Ethical Implications of Drafting A Form I-864, Affidavit of Support for a Joint Sponsor

In this piece we explore the ethics of whether attorneys should draft the Form I-864 for a co-sponsor, where the attorney represents the petitioner and/or beneficiary in the family immigration case. Because the new I-864 requires an attorney-client relationship with the co-sponsor, and because that relationship compromises the attorney's duties to his other immigration clients, we conclude attorneys should stop drafting I-864s for co-sponsors. This piece was originally published as: The Rules Have Changed: Stop Drafting I-864s for Joint Sponsors, Greg McLawsen and Gustavo Cueva, 20 Bender’s Immigr. Bull. 1287 (Nov. 15, 2015).

This paper may be downloaded free of charge here

Download our free Guide to completing the I-864 here


It is a pickle that every family immigration attorney has had to resolve. The young college couple with lots of love and zero income. The struggling first-generation American, petitioning for mom and dad. They are going to need I-864 Joint Sponsors,[1] and they have paid you to be their attorney. Do you help with the Joint Sponsor’s I-864?

The pickle, of course, arises from the serious legal implications of signing the Form I-864. Your intending immigrant client will have a right to sue the Joint Sponsor for support if the need arises.[2] What, if any duties do you owe to the Joint Sponsor? Are you presented with a conflict of interest? Following recent amendments to the 864-series forms, the answers to these questions have become at once simpler and more frustrating. Starting October 6, 2015 attorneys are required to certify under penalty of perjury that they have an attorney-client relationship with any Joint Sponsor for whom the attorney drafts a Form I-864. In this article we suggest that either fully embrace their fiduciary duties to Joint Sponsors – a role that we believe is extremely problematic and best avoided – or else as a strict policy avoid drafting Joint Sponsor I-864s.

Who is a Sponsor?

When it comes to your relationship to the Joint Sponsor, there are only two possibilities: she is either your client, or she is not. Period. Until this summer some attorneys believed that they could draft a Joint Sponsor’s I-864 while simultaneously disclaiming an attorney-client relationship with that individual. For reasons explained below that is no longer possible.

If a Joint Sponsor is an attorney’s client, the attorney must, among other duties, assess conflicts of interest.[3] But that duty is triggered only if there is an attorney-client relationship with the Joint Sponsor.[4] Many attorneys appear to take the approach advocated for by Lisa York in an AILA practice advisory.[5] Ms. York recommends providing the joint sponsor with a packet containing the Form I-864 and official instructions, along with a disclaimer “that explicitly states that I do not represent the Joint Sponsor.”[6] While she would not draft the Form for the Joint Sponsor, she would check the Form for sufficiency and provide feedback if necessary via an intermediary.[7]

In reality, this completely hands-off approach often proves extremely difficult. Especially for firms serving populations with little formal education, successful completion of the technical I-864 can prove a true obstacle without assistance of an attorney. Hence, many practitioners feel the need to assist Joint Sponsors in order to keep their clients’ cases moving forward. Anecdotally, it appears common for attorneys to offer some degree of direct assistance to Joint Sponsors in completing the Form I-864.[8]

Prior to the form revisions discussed below, it may have been possible to draft a Joint Sponsor I-864 while simultaneously disclaiming an attorney-client relationship with that individual.[9] A lawyer does not automatically become an individual’s attorney merely by virtue of drafting a document for her signature. In litigation, for example, an attorney does not represent each witness for whom she drafts a declaration. We could term this the Have-Your-Cake-And-Eat-It-Too solution to Joint Sponsor I-864s: directly assist with drafting the I-864 while carefully disclaiming an attorney-client relationship. Certainly this is higher risk than the Hands-Off approach.[10] But the Have-Your-Cake approach offered attorneys a compromise solution that kept cases moving toward completion, while offering a feasible resolution of their relationship with Joint Sponsors. Unfortunately, this solution is no longer available because an attorney can no longer disclaim an attorney-client relationship if she drafts a Form I-864 for a Joint Sponsor.

The revisions and their import.

The Form I-864 now requires the preparer to complete the following provision:

□ I have requested the services of and consented to ___________________________ who □ is □ is not an attorney or accredited representative, preparing this affidavit for me.[11]

The Form further requires the preparer, if an attorney or BIA-accredited representative, to complete the following:

□ I am an attorney or accredited representative and my representation of the sponsor in this case □ extends □ does not extend beyond the preparation of this affidavit.

NOTE: If you are an attorney or accredited representative whose representation extends beyond preparation of this affidavit, you must submit a completed Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, with this affidavit. [12]

The preparer further certifies under penalty of perjury that she “prepared this affidavit on behalf of, at the request of, and with the express consent of the sponsor.”[13]

The Form I-864EZ contains both of the above provisions.[14] On the Form I-864A, both the Sponsor and the Household Member are required to certify whether she has consented to an attorney preparer, as quoted above.[15] Likewise, on the Form I-864A the preparer must certify the nature of her representation of the Sponsor and Household Member, as quoted above.[16]

The new certification by the Sponsor merely consents to the attorney “preparing this affidavit for me.” Yet a new challenge is created by the certification of the preparer: that she has a “representation of the sponsor.” Representation, of course, implies that an attorney preparer certifies, under penalty of perjury, that she has an attorney-client relationship with the Sponsor. This is the critical development: an attorney preparer must certify that she represents the sponsor, at least for purpose of preparing the form.

But – one may counter – the Forms allow an attorney to specify that the representation does not extend “beyond the preparation of [the] affidavit.” While true, this misses the point. Prior to the current iterations of the I-864 forms, it may have been possible for an attorney to disclaim representation of a Joint Sponsor altogether. That is now no longer the case. Whether attorneys may effectively limit their representation of the Joint Sponsor is discussed below. But once the Sponsor becomes a client this triggers the duty to assess conflicts of interest, even for a limited representation. Regardless of the scope of representation, a client is a client.

Conflicts of interest between current clients are governed by ABA Model Rule 1.7(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:

(1) the representation of one client will be directly adverse to another client; or

(2) 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.

A Joint Sponsor’s interests are unlikely to be “directly adverse” to the attorney's’ primary client since the two ought to share the goal of securing resident status for the primary client.[17] Generally an attorney may not rely on a boilerplate written disclaimer to verify that clients have non-adverse interests.[18] Rather, an attorney should actually consult with his second client – the Joint Sponsor. But most Joint Sponsors will be analogous to scenarios sanctioned by ethics boards. A South Carolina opinion, for example, advises that an attorney may represent the purchaser and seller in a real estate transaction:

If the attorney is employed simply for the purpose of performing the ministerial acts associated with "closing the deal," and he is neither expected nor required to render legal advice to either party in connection with the transaction, no conflict of interest appears and Rule 1.7 does not appear to be implicated.[19]

As in the real estate transaction, a lawyer may seek to limit his involvement to the ministerial act of completing a rule-compliant I-864 for the Joint Sponsor, and in doing so may avoid “directly adverse” interests.[20]

A trickier query is whether there is a “significant risk” that representation of the Joint Sponsor will “be materially limited by the lawyer’s responsibilities” to her intending immigrant client.[21] As summarized by the Tennessee ethics board, this inquiry turns on the likelihood that a future conflict will arise:

The critical questions are: what is the likelihood that a difference in interests will eventuate and, if it does, will it materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.[22]

I-864 beneficiaries can, and most certainly do, sue their sponsors for the support promised under the Affidavit.[23] Yet it appears to be exceedingly rare for I-864 beneficiaries to enforce their support rights against a Joint Sponsor or Household Member. We are aware of only two reported decisions in which a Household Member was sued for I-864 support,[24] and of no case involving a judgment against a Joint Sponsor.[25] Likewise, should the intending immigrant receive means-tested public benefits during the sponsorship period, a government agency could theoretically sue a Joint Sponsor or Household Member for the cost of those benefits. But we are aware of no jurisdiction in the United States where agencies are actively pursuing I-864 Sponsors of any designation. Albeit that it is unlikely the intending immigrant will take legal action to recover support from a Joint Sponsor, the magnitude of those claims is substantial. The Joint Sponsor, of course, stands to be on the hook for years of support at 125% of the Federal Poverty Guidelines, currently $14,712 annually for a household size of one.[26]

The following thought experiment may be helpful. In Scenario (1) a close friend of yours seeks your advice about whether he should execute, as Joint Sponsor, an I-864. The I-130 petitioner is a student of his who married a Canadian woman last week following a bachelor’s party in Las Vegas. In Scenario (2) the facts are the same, but you represent the young lovebirds and the Joint Sponsor isn’t a friend. We suspect that an attorney’s interactions with the Joint Sponsor in these two scenarios would be revealingly different. In Scenario 1, the attorney would stress the serious financial liabilities of the I-864, and would probably present them in a way that would tend to discourage the individual from agreeing to be a sponsor. In Scenario 2, the attorney is duty-bound to advance the lovebirds’ immigration case. The attorney will recite the legal implications of the I-864 when communicating with the would-be Joint Sponsor, but we suspect the tenor of this interaction is markedly different than Scenario 1. While a cold statistical calculation under Model Rule 1.7(a)(2) may indicate the absence of a current conflict, we believe the opposite conclusion is revealed if practitioners reflect on how they actually interact with Joint Sponsors.

Is a G-28 required?

As an aside, there will likely be confusion going forward as to whether an attorney must file a G-28 if she prepares a Form I-864 for a Joint Sponsor. The Form I-864 itself provides that an attorney must file a Form G-28 if her “representation [of the sponsor] extends beyond preparation of this affidavit.”[27] Yet puzzlingly, the official instructions to the Form I-864 state that a preparer must always submit a Form G-28 for the sponsor, that is, regardless of how the preparer has answered the above item.[28] The operative paragraph of the instructions does not differentiate between primary and joint sponsors.[29] The official instructions to the Form G-28 instruct that it must be filed whenever a person” acts in a representative capacity.”[30] Since the Form I-864 requires the attorney to certify that she represents the sponsor, at least in some scope, the safest reading appears to be that a Form G-28 must be filed for any joint sponsor for whom the attorney prepares a Form I-864. Note that repeated failure to file a required Form G-28 may, by itself, subject a practitioner to DHS discipline.[31]

Solutions.

With the new forms, there are at least three ways that lawyers can approach preparation of Joint Sponsor I-864s. Each has its own benefits and risks.

(1) Hands Off.

As has always been the case, the safest approach is to steadfastly refuse contact with the Joint Sponsor. As proposed by Ms. York, the intending immigrant client or I-130 petitioner can be provided with the required forms and official instructions, along with guidelines for who would qualify as a Joint Sponsor and what information is needed for the I-864. If the Joint Sponsor requires assistance to complete the Form, she can seek that assistance from another attorney. Practitioners may find it helpful to arrange reciprocal referral arrangements with a colleague, where each agrees to offer I-864 services to each other’s Joint Sponsors at a predetermined rate. Alternatively, or additionally, the firm can provide DIY instructions to the Joint Sponsor, via the clients. To avoid inadvertently giving legal advice through those instructions it would be preferable to have them drafted by a third party. [32] For this reason we have made available on our website a downloadable step-by-step guide to completing the Form I-864 which is freely available.[33]

Undoubtedly the Hands Off approach will sometimes be vexing. Clients will vent that they are not getting the service ‘that they paid for’ and case progress will be slowed.[34] The terse answer to this is that nobody said lawyering was easy, and sometimes ethical obligations lead to inconvenience.[35] But it is also unclear that the Hands Off approach will take any longer, or cost the client any more, than if the attorney drafts the Joint Sponsor’s Form. Most attorneys likely know a colleague of equal ability and comparable cost. Why should it be more expensive, or take longer, for the second attorney to prepare the Joint Sponsor I-864 than for the first? This seems especially true if the first attorney has the referral arranged on a standby basis to smooth logistics. Indeed, if this economic supposition is accurate, we might wonder if attorneys want to keep Joint Sponsor drafting, at least in part, simply to avoid losing the business.

(2) Limited Representation.

Alternatively, an attorney may choose to embrace representation of the Joint Sponsor, but seek to limit as narrowly as possible the scope of that representation.[36] (Recall it is not possible to disclaim representation altogether). On this approach, the scope of representation would be designed to include preparation of the Form and not one iota more.

Under Model Rule 1.2(c) “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.”[37] A common use of a limited scope representation, of course, is to deliver “unbundled” legal services, such as where an attorney represents a family law client in only a portion of a divorce case.[38] To take the Limited Representation approach, the attorney must cleave very finely the scope of representation, telling the Joint Sponsor: “I am preparing this contract for you, as your attorney, but am not going to advise you about the wisdom of signing it.”

Note that some may believe that completing an I-864 is merely “filling out a form” rather than drafting a contract. We believe that view is profoundly misguided. Once completed and executed, the Form I-864 is a contract, and an attorney preparing the form is therefore drafting a contract.[39] Under 8 C.F.R. § 1.2 legal representation includes engaging in practice, which means: “preparation or filing of any brief or other document, paper, application, or petition on behalf of another person or client before or with DHS.” Moreover, at least in Washington State it is per se the practice of law to commercially “draft” or “complete” an immigration form for another.[40] We note the extreme irony of attorneys minimizing their role in drafting I-864s as merely “filling out forms.” As a profession we have aggressively pursued unauthorized immigration practitioners on the view that they are engaged in the unauthorized practice of law.[41] The notarios, however, insist that they merely help clients “fill out forms.”[42] We cannot have it both ways. If notaries engage in the unauthorized practice of law by drafting immigration law instruments, attorneys need to own up to their duties when they draft the same.

At the very least, an attorney taking the Limited Representation approach would need to advise the Sponsor that she would not be advising the Joint Sponsor about the consequences of signing the Form that she was preparing as that Joint Sponsor’s attorney. Moreover, limited scope representation must be “reasonable under the circumstances.”[43] Under this vague imperative, is it reasonable to prepare a contract with potentially life-long financial obligations for a client, without offering advice about what those consequences are? Perhaps that is reasonable, but we do not plan to be in the situation of defending the position.

(3) Non-Limited Representation + Waiver.

A third and final approach to working with Joint Sponsors is to presume that the scope of representation – whether by design or imputation – will exceed mere preparation of the Form. In other words, the attorney accepts that her duties include more than merely completing the Form in a rule-compliant manner. On this approach, the attorney accepts that her scope of representations includes a holistic duty to advise the Joint Sponsor about the consequences of executing the I-864.

As described above, we believe the attorney must assume that a representation of this nature involves a current conflict of interest. That being the case, the attorney may represent the Joint Sponsor on this analysis only if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) 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

(4) each affected client gives informed consent, confirmed in writing.[44]

Prong (4) presents a minor headache for the attorney, but is probably accomplishable. The attorney would have to articulate in writing to both primary client and Joint Sponsor the nature of the conflict as she understands it.[45] In essence, the attorney would need to explain to the Joint Sponsor that she is incentivized to downplay the consequences of signing the form.[46] To the primary client, the attorney would need to explain that her advice to the Joint Sponsor could lead the individual to refuse signing the Form I-864.

Under Prong (1) the attorney would need to hold the belief that she can advance the case of her intending immigrant client while simultaneously protecting the interests of the Joint Sponsor. We believe this is suspect for precisely the same reason that there is a current conflict of interest under Model Rule 1.7(a): the attorney will be incentivized to downplay the risks of signing the Form I-864 in order to advance the case of her intending immigrant client.

Furthermore, we do not believe an attorney may avoid the above prohibition by securing a “waiver” of the conflict by the Joint Sponsor. Bruce Hake has long argued – in the context of employment-based immigration – that advance conflict waivers are per se unethical.[47] An attorney’s ethical duties cannot be avoided or diminished by contract, except as provided for within the ethical rules themselves. The sole means of continuing a joint representation with a current conflict of interest is through meeting the four prongs of Model Rule 1.7(b).

Conclusion.

Joint Sponsor I-864s present immigration attorneys with an inconvenient tension between expediency and ethical adherence. Attorneys have long waivered on whether to draft such documents, but we respectfully submit that the recent form revisions tip the balance in favor of a single conclusion: we should all get out of the business of drafting Joint Sponsor I-864s.


 

[1] This article assumes familiarity with financial sponsorship under the Form I-864. A joint sponsor, of course, is a sponsor who is not the immigration petitioner. 8 C.F.R. § 213a.2(b)(1). Joint Sponsor and Co-Sponsor have the same meaning, though we use Joint Sponsor exclusively in this article. Cf. 9 FAM 40.41 N6.2(c).

[2] The right of the Form I-864 beneficiary to recover support from her Sponsor has been covered extensively by the first author of this article. Cf. Greg McLawsen, The I-864 Affidavit of Support: An Intro to the Immigration Form You Must Learn to Love/Hate, Vo 48. No. 4 ABA Fam. L. Quarterly 1 (Winter 2015) (“McLawsen 2015”); Greg McLawsen, Suing on the I-864 Affidavit of Support; March 2014 Update, 19 Bender’s Immigr. Bull. 343 (Apr. 1, 2014); and Greg McLawsen, Suing on the I-864 Affidavit of Support, 17 Bender’s Immigr. Bull. 1943 (Dec. 15, 2012) (“McLawsen 2012”) (discussing enforcement of the Form I-864 as a contract).

[3] ABA Model Rule 1.7(a)(1) & (2).

[4] ABA Model Rule 1.7(a) (“. . .a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. . .”).

[5] Doug Penn & Lisa York, How to Ethically Handle an I-864 Joint Sponsor (posted Nov. 7, 2012), AILA Doc No. 12080162. 

[6] Id. at 2.

[7] Id. (“To avoid the appearance of representation, I never communicate with the joint sponsor directly”).

[8] During conference presentations on the Form I-864, audience members have expressed this view to the first author of this article.

[9] But see infra, text accompanying notes 43 et seq. (discussing definition of representation under 8 C.F.R. § 1.2).

[10] Risks included the possibility that the attorney would ineffectively disclaim an attorney-client relationship with the Joint Sponsor. That risk was far from trivial, as it appears many attorneys used no written disclaimer, and relied solely on an oral explanation to the Joint Sponsor of the nature of their relationship.

[11] Form I-864, Affidavit of Support Under Section 213A of the Act (rev’d July 2, 2015), pg. 9, Part 8, Item 2, available at http://www.uscis.gov/i-864.

[12] Form I-864, page 11, Part 10, Item 7.b (emphasis added).

[13] Form I-864, page 11.

[14] Form I-864EZ, Affidavit of Support Under Section 213A of the INA (rev’d July 2, 2015), Page 4, Part 6, Item 2, and Page 6, Part 7, Item 7.b, available at http://www.uscis.gov/i-864ez.

[15] Form I-864A, Contract Between Sponsor and Household Member (rev’d July 2, 2015), Page 4, Part 5, Item 27 (sponsor’s certification), and Page 5, Part 6, Item 2 (household member’s certification), available at http://www.uscis.gov/i-864a.

[16] Id. Page 7, Part 8, Item 7.b. Note that the preparer must answer the conjunctive question of whether her representations “of the household member and sponsor” extend beyond preparation of the I-864A. It’s unclear how a preparer should answer this query if her scope of representation for one, but not the other, extends beyond preparation of the I-864A. The best approach would appear to be an explanation in Part 9 Additional Information.

[17] ABA Model Rule 1.7(a)(1). By referring to the “primary client” we do not suggest that such individual is ‘more’ of a client to whom greater duties are owed. Cf . Bruce Hake, Advance Conflict Waivers are Unethical in Immigration Practice — Debunking Mehta's ``Golden Mean',' 12-11 Bender's Immigr. Bull. 01 (2007), text accompanying note 23 (attacking the proposition that a lawyer may subordinate duties owed to one client to a “primary” client).

[18] Washington State Ethics Op. 2064 (2004), available at http://bit.ly/1VKdak7 (“. . . under [Washington State] RPC 1.7, the lawyer must make a judgment that the representation being undertaken ‘will not be adversely affected.’ This responsibility on the lawyer cannot be waived in advance and the lawyer must continuously assess his representation of clients with potentially conflicted interests.”).

[19] South Carolina Ethics Op. 91-30 (1991), available at http://bit.ly/1LEqyBC..

[20] For a discussion of limitations on the scope of representation please see below.

[21] ABA Model Rule 1.7(a)(2). Cf. ABA Model Rule 1.7, cmt. 8 ( “The critical questions are the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.”).

[22] Tennessee Ethics Op. 2013-F-157 (2013) (emphasis added), available at http://bit.ly/1LEqFNn.

[23] McLawsen 2015, supra note 2; McLawsen 2014, supra note 2; McLawsen 2012, supra note 2 (all discussing cases involving enforcement of I-864 support against sponsors). These enforcement actions commonly, though not always, arise in conjunction with divorce proceedings. The I-864 beneficiary also has standing to prosecute her claims in a state or federal civil action.

[24] Panchal v. Panchal, 2013 IL App (4th) 120532-U, No. 4-12-0532, 2013 Ill. App. LEXIS 1864, at *11 (Ill. App. Ct. 4th Dist. 2013); Liepe v. Liepe, Civil No. 12–00040 (RBK/JS), 2012 U.S. Dist. LEXIS 174246 (D.N.J. Dec. 10, 2012).

[25] But see County of San Bernardino Child Support Division v. Gross, E054457, 2013 Cal. App. LEXIS 5156 (Cal. App. 4th Dist. July 23, 2013) (noting prior trial court order “confirming that, despite the divorce proceedings, the [joint sponsor’s I-864] was enforceable”).

[26] See Annual Update of the HHS Poverty Guidelines, 80 Fed. Reg. 3236 (Jan. 22, 2015) (setting forth 2015 Poverty Guidelines).

[27] Form I-864, page 11, Part 10, Item 7.b (emphasis added). See Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative (rev’d Mar. 4, 2015), available at http://www.uscis.gov/g-28.

[28] Instructions for Form I-864, page 10 (“If the person who helped you prepare your affidavit is an attorney or accredited representative, he or she must also submit a completed Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, along with your affidavit.”). See also Instructions for Form I-864A, Page 6 (same), Instructions for Form I-864EZ, Page 7 (same).

[29] Id. (“This section must contain the signature of the person who completed your affidavit, if other than you, the sponsor. . .”).

[30] Instructions for Notice of Entry of Appearance as Attorney of Accredited Representative (rev’d Mar. 4, 2015), Pg. 1. Cf. 8 C.F.R. § 292.4(1).(a)

[31] USCIS, Statement of Intent Regarding Filing Requirement for Attorneys and Accredited Representatives Participating in Group Assistance Events (rev’d Feb. 28, 2011) (“. . .a practitioner who consistently violates the requirement to file a Form G-28 may be subject to disciplinary sanctions under DHS professional conduct regulations. . .”) available at http://1.usa.gov/1NAwhXD.

[32] We owe this point to our respected AILA-Washington colleague, Robert Gibbs of Gibbs Houston Pauw.

[33] Navigate to www.pugetsoundlegal.net à News, then select “I-864” from the topics menu.

[34] This particular issue could be at least partially alleviated by: (1) ensuring clients are screened at intake and advised as to whether they will need a Joint Sponsor; and (2) ensuring that the letter of engagement clearly states that work for Joint Sponsors is not included in the legal fee.

[35] This observation has been made by the exceedingly helpful and not remotely terse Jeanne Marie Clavere, ethics advisory counsel at the Washington State Bar Association.

[36] This approach had been advocated to the authors by our respected AILA-Washington colleague, Jay Gairson.

[37] Cf. Washington State Ethics Op. 1987 (2002), available at http://bit.ly/1WSu3pT (limited scope representation should be commenced only “after consultation and a full disclosure of the material facts”) (last visited October 8, 2015).

[38] Cf. ABA Standing Committee on the Delivery of Legal Services, Ethics Opinions, www.bit.ly/1K48cDZ (last visited Sep. 12, 2015) (collecting opinions on unbundled of legal services).

[39] Note the analogs in other practice areas that rely in part on “forms” to practice law. Many family law pleadings, for example, start with mandatory forms promulgated by a state authority. Likewise, many estate planning lawyers may begin drafting a will by using a commercial form. But in both cases the attorney is responsible for the resulting legal instrument as though she had drafted it from whole cloth.

[40] Under Washington State law, it is a violation of the Consumer Protection Act (CPA) for a nonlawyer to engage, inter alia, in “[s]electing, drafting, or completing legal documents affecting the legal rights of another in an immigration matter. RCW 19.154.20(2)(g) (emphasis added).

[41] American Immigration Lawyers Association (AILA), Section on Anti-Notario Fraud, http://www.stopnotariofraud.org/ (last visited 09/16/2015). Our colleagues, Deborah Niedermeyer and Manny Rios recently received the top award from Washington State Bar Association for their pioneering civil lawsuit against a notario. 2015 WSBA Annual Awards Banquet, Sept. 17, http://www.wsba.org/News-and-Events/Awards (last visited Sep. 18, 2005).

[42] The authors of this article are currently litigating a Consumer Protection Act case against a notario who prepared a family-based adjustment application for a customer who was ineligible for the benefit. The act of completing the forms was per se a violation of Washington law. Why should we feel it is any less momentous for a lawyer to engage in such drafting?

[43] ABA Model Rule 1.2, cmt. [7].

[44] ABA Model Rule 1.7(b).

[45] Cf. ABA Model Rule 1(e) (defining informed consent).

[46] “Informed consent,” in this context, requires the attorney to explain that “the material advantages and disadvantages” of the proposed joint representation. ABA Model Rule 1, cmt. [6].

[47] Cf., Hake, supra note 21, Bruce A. Hake, Dual Representation in Immigration Practice: The Simple Solution Is the Wrong Solution, 5 Geo. Immigr. L.J. 581–639 (Fall 1991). But see, Cyrus Mehta, Finding The “Golden Mean'' In Dual Representation — Updated, 06-8 Immigr. Briefings (Aug. 2006) (arguing contra).

Social media ethics: 5 things to worry about and 6 red herrings

Social media ethics: 5 things to worry about and 6 red herrings

Social media marketing presents genuine ethical challenges for attorneys. But there are also plenty of non-issues. This is an attempt to separate some of the former from the latter. These materials were prepared for Business Development 101 Tools and Techniques to Build a Successful Law Practice (Seattle University School of Law, 2014)

Ethical challenges of using flat fees

Ethical challenges of using flat fees

We argue that attorneys need to better safeguard clients when using flat fee billing. Even in jurisdictions, like Washington, where flat fees become property of the attorney when they are paid, lawyers need to have systems in place to ensure clients can receive partial refunds if needed. The system we propose can be called "trust accounting lite."

Solo attorneys: Who's got your back? (You need a backup)

This article was initially published as: Solo Attorneys: Who's Got Your Back? You Need Backup Counsel to Protect Your Clients and Yourself, Greg McLawsen and Russell Mikow, The Bar News (Journal of the Tacoma-Pierce County Bar Association) (August 1, 2013)


[Greg's note: This article was written in the first-person at a time that I was still a solo attorney.]

A question for all solo attorneys: what would happen to your clients if something happened to you? The issue is not just for practitioners entering their golden years; accidents can befall even "young" attorneys. Imagine the impact to your client if your firm failed to meet a litigation deadline. What might your liability be if this could have been avoided?

Working as a law clerk for Kitsap Superior Court, Greg saw what happened when a solo practitioner passed away unexpectedly. His staff worked hard to protect client interests, but as non-attorneys they could not move for continuances in matters with fast-approaching deadlines. What would happen to your clients if you were bedridden with pneumonia or stranded by an airport closure?

As solo practitioners, we decided early in our practices that it was important to protect our clients in the event something happened to us. We struck up two different coverage agreements, one for succession planning in the event of death, the other for coverage if we become temporarily unavailable.

This article outlines factors to consider in identifying a backup attorney. Our backup attorney contract is available here. The WSBA also has a useful handbook available free of charge. See WSBA, Planning Ahead: A Guide to Protecting Your Client’ Interests in the Event of Your Disability or Death (undated).

Why bother?

Professional responsibility. The ABA's Standing Committee on Ethics and Professional Responsibility has advised that a sole practitioner has a duty to plan for protecting client interests in the event of the attorney's death. ABA Op. 92-369 (Dec. 7, 1992). This mandate arises from the duties of competence and diligence. RPCs 1.1 and 1.3. The ABA Committee opined that even though an attorney/client relationship might terminate upon the death of the attorney, the attorney's fiduciary duty carries on, making prospective planning vital.

Your insurance requires it.   Most malpractice policies, including the WSBA-endorsed policy administered by Kibble & Prentice, require the insured attorney to have a designated backup. According to John Chandler of Kibble & Prentice, "it is universally expected in the insurance world that solos make arrangements for a backup attorney." An informal poll of solo practitioners we know suggest that many solos have at most an informal arrangement with another attorney to provide backup. Yet a vague arrangement that another attorney “has your back” is skating on thin ice.

Liability. It takes little imagination to envision how the unexpected absence of an attorney could greatly prejudice a client. In our line of work there are plenty of instances where a missed immigration deadline could destroy an individual’s ability to remain in the U.S. In transactional work, what if your unexpected absence caused an offer to expire unanswered. If damages could have been avoided by providing a backup attorney , this liability could land on your doorstep or fall to your estate.

Factors to consider in choosing a backup attorney.

Selecting a backup may be the most challenging aspect of this process. Who could competently walk into your law practice and run with the ball to protect your client’s interests? Who knows the area of law that you practice? Currently WSBA has no formal tools to help attorneys identify backups. Consider turning to WSBA’s Solo and Small Practice listserv, or reaching out through the TPCBA.

In our case, Greg’s practice is limited to immigration law, but Russ also does bankruptcy and consumer debt work, so our coverage agreement is limited to immigration cases only. If your primary practice area is family law, you don’t want your backup surprised to find herself defending a securities derivative action. You may also want to limit the backup’s responsibilities to time-sensitive matters (we did) to make clear the backup doesn’t need to draft your Ninth Circuit brief just because you’re stuck in Maui for a couple of days.

What triggers the backup?

Establishing unavailability. On a practical level, how does a back-up determine the other affected attorney is “unavailable” so that he knows when to act? In an ideal world, the affected attorney would call, email or text the backup to provide advanced notice. But a key goal of our arrangement was to provide coverage for unexpected absences, such as a medical emergency.

Our coverage agreement allows the backup attorney to use all evidence and information that can be deemed reasonably reliable, including communications with the affected attorney, his family members, representative, or opinion of health care professionals. We included a hold-harmless provision in the event a backup attorney makes a reasonable and good faith, but incorrect determination of unavailability.

How does the backup attorney get paid by the affected attorney?

We chose to compensate each other for backup work at an amount that was substantially reduced from our normal hourly fees. The main value to each of us is the reciprocal coverage arrangement itself. We also agreed that in no event would the total amount charged by the backup attorney exceed any flat fee originally charged to a client. In the event the fees incurred by the backup approached 25% of the total flat fee originally charged by the affected attorney, the affected attorney could chose to transfer the file to the assisting attorney after the client’s approval has been obtained.

Independent contractor.

A vital aspect of coverage agreements is to clearly spell out nature of the business relationship between the affected attorney and his backup. The agreement should clearly establish that the backup attorney is an independent contractor for the affected attorney, and the agreement should expressly disclaim an employment relationship. This minimizes the affected attorney’s liability for the backup attorney’s actions, and the requirement to pay payroll taxes, and other employer obligations.

Client representation agreements.

Our standard legal services agreements contain express consent to our backup attorney arrangement.   First, consent is required to give rise to the attorney-client relationship that would allow the backup attorney to provide legal coverage for the client. But moreover, we want our clients to understand that arrangements are in place to safeguard their interests. The fact we formally arrange for backup coverage is an additional value offered to our clients (at no cost to them). To keep it simple we each use identical language in our standard legal service agreements. We also give the client the option to decline to proceed with the backup, and may retain a different attorney, in which case she may be entitled to a partial reimbursement.

Representations to clients.

We were very concerned about avoiding any representation that could accidentally give rise to an attorney-client relationship, other than in the limited backup context. Were a client to fall into a dispute with her attorney, we wanted carefully to safeguard against inadvertent liability to the attorney’s backup.   We include an express disclaimer in our representation agreements, explaining that the backup attorney has no involvement in a client matter save for the limited backup function. We were also concerned about client perceptions since we are in a shared office suite. As a partial solution we agreed to create signage on our respective office doors clearly stating "This firm is associated with no other business or attorney in this building."

Operational information.

As a practical matter, how can an assisting attorney step into the affected attorney's shoes if required under the coverage agreement? To perform essential functions, a backup attorney will need access to client files and an understanding of the affected attorney’s office procedures. At a minimum, each attorney will need to provide the other with computer login codes, general business and IOLTA account information, and any other information that would be required to competently step into a client matter. Greg drafted a 30-page office procedure manual, which turned out to be a helpful exercise in identifying more efficient office protocols. WSBA advises that a third attorney should be assigned the role of signatory for the affected attorney’s IOLTA account to provide for “checks and balances.” Planning Ahead, supra, at 1-2.

Liability Insurance.

The affected attorney and his backup must each have his own liability insurance. An affected attorney's failure to confirm such coverage on the part of the backup attorney could potentially lead to a malpractice claim by a disaffected client if the assisting attorney's legal representation is deficient.

Conclusion.

A solo practitioner may have a long, successful career without ever needing another attorney to help out in an emergency. But the stakes are too high, and in our view the diligent practitioner should not ignore this important client safeguard.

A primer on the ethics of legal process outsourcing (LPO)

Solo and small firm practitioners are faced with tough choices as their practices grow. As demands increase, the traditional answer is to add a part time general assistant. The part time assistant becomes a fulltime employee, and more staff follow. With employees come huge responsibilities for the firm, including training, supervision, tax and regulatory compliance, and liability. So before turning reflexively to in-office staff, the contemporary practitioner should be sure to consider all her options.

This paper may be downloaded free of charge here


 

Introduction

Solo and small firm practitioners are faced with tough choices as their practices grow. As demands increase, the traditional answer is to add a part time general assistant. The part time assistant becomes a fulltime employee, and more staff follow. With employees come huge responsibilities for the firm, including training, supervision, tax and regulatory compliance, and liability. So before turning reflexively to in-office staff, the contemporary practitioner should be sure to consider all her options.

There are now a myriad of opportunities to take tasks traditionally performed within the walls of a law firm, and delegate these to independent service providers elsewhere. Outsourcing generally refers to “the practice of taking a specific task or function previously performed within a firm or entity and, for reasons including cost and efficiency, having it performed by an outside service provider.”[1] By 2010, India had in the neighborhood of 110 “legal process outsourcing” (LPO) providers, with the field growing at approximately 40 percent annually[2] or perhaps even faster.[3] This article discusses the many ethical considerations – none of them insurmountable – that come with this still-developing territory.

In its September 2001 report, the ABA Commission on Ethics 20/20 concluded that existing ethics rules provide adequate structure for addressing attorneys’ ethical responsibilities when outsourcing.[4] Issues relating to attorney use of LPO have been considered by ethics boards in Colorado, Florida, Los Angeles County, New York City, North Carolina, Ohio, and San Diego, as well as the American Bar Association.[5] Each has concluded that use of LPO is allowed by the rules of professional responsibility, so long as certain safeguards are taken.

The core principle at the heart of ethics issues concerning outsourcing is this: the attorney choosing to outsource work has ultimate responsibility for her work and this cannot be delegated. The remaining discussion amounts to details about how to ensure that the attorney remains at the helm in a representation. Outsourcing also raises the specter of tort liability for a firm delegating work, but that topic is beyond the scope of this article.[6]

This article offers practical advice for how an attorney may ethically utilize legal process outsourcing. Section II briefly explains some of the possible benefits of using LPO. Section III presents the many ethical issues that arise from LPO generally, and suggests steps to address each possible issue. Section IV identifies the additional ethical issues that arise from use of foreign LPO providers.

Potential Benefits

It is helpful to distinguish between domestic and foreign LPO. Domestically, firms may source work to “contract lawyers”[7] or to other professionals such as independent paralegals. Contract lawyers may perform legal research, review discovery material, or make court appearances.[8] Practitioners may be surprised to learn that even technological service providers – such as cloud storage businesses – may be governed by the same rules that apply to LPOs.[9] Foreign LPO firms provide both “objective” services, such as document management and review, transcription and legal research, as well as “subjective” services, such as brief writing and developing case strategies.[10] One LPO provider in India has crafted briefs for the U.S. Supreme Court and federal appeals courts.[11]

The leading reason law firms turn to legal process outsourcing is cost savings. Especially with foreign LPO providers, firms may be able to capture substantial benefit from labor arbitrage. Providers in India can perform legal services at a 20-60% cost savings compared to U.S. firms.[12] Document review services, for example, may be priced around $20 per hour,[13] and legal research around $60-80 per hour.[14]

Labor cost is only one possible benefit. Outsourcing can also allow a small law firm to take on work that would normally be outside its capacity or expertise:

A small firm might not regularly employ the lawyers and legal assistants required to handle a large, discovery-intensive litigation effectively. Outsourcing, however, can enable that firm to represent a client in such a matter effectively and efficiently, by engaging additional lawyers to conduct depositions or to review and analyze documents, together with a temporary staff of legal assistants to provide infrastructural support.[15]

Similarly, a small firm’s work quantity may be subject to higher short-term variations than a larger firm, where fluctuations in volume are more readily absorbed. Outsourcing can allow a small firm to quickly scale-up its capacity in response to increased demand.

Because of the time differences between the U.S. and Asian nations, law firms may capture “time efficiencies” by having work performed outside U.S. business hours.[16] A U.S. attorney could identify a legal issue late in the work day, pass it along to a colleague in India, and have the work product waiting on his desk in the morning.

Ethics issues – LPO generally

This section discusses each ethics rule that comes into play when a law firm seeks to use LPO. Citations are provided to the American Bar Association’s Model Rules of Professional Conduct (“Model Rules”), which serve as the model for most state bar associations’ ethics codes. [17]

Competence

Model Rule 1.1 requires that an attorney provide competent representation, which requires “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”[18] Work performed on a client matter by an LPO provider must ultimately contribute to a “competent” representation. One ethics body has opined that “a lawyer must take reasonable steps to determine that the non-lawyer assistant is competent.”[19] But this statement is potentially misleading. No ethics violation obtains if a non-lawyer performs work that would be incompetent by standards to which an attorney would be held, or even if it falls short of the standards in the non-lawyer’s profession. A lawyer, for example, has not committed an ethical breach if he receives (and rejects with criticism) a poor legal memo from a law clerk. Rather, the representation ultimately provided to the client must be competent, as must be the legal fee.

Practically speaking, the measures required of an attorney arise from the responsibilities to supervise attorney and non-lawyer staff.[20] Precisely what this requires is discussed below with regard to an attorney’s supervisory duty.[21]

Disclosure to Client

Model Rule 1.4 requires an attorney to “reasonably consult with the client about the means by which the client's objectives are to be accomplished.”[22] Ethics bodies have generally concluded that this rule requires an attorney to inform the client when part of a representation will be outsourced.[23]

The Ohio ethics board reasons: “For some clients, a lawyer’s or law firm’s decision to outsource legal or non-legal support services may be a deciding factor in whether or not to engage the services of the lawyer or the law firm.”[24] Although a client need not be informed of how legal work is delegated within a firm, the ABA has reasoned that a client must be informed if work is sourced outside the firm to service providers over whom the attorney has no direct control.[25]

An ethics opinion by the San Diego Bar Association considered this issue where a two-attorney litigation firm agreed to defend a complex intellectual property dispute.[26] Because the matter was outside their area of legal expertise, the attorneys – without informing their client – paid an India-based firm to perform most of the legal research and writing for the matter. The services were billed to the clients at cost under broad categories such as “legal research” and “preparation of pleadings.” The client discovered the outsourcing only after asking why the representation had been so inexpensive. The Bar Association concluded that the client reasonably could have expected the work to have been performed within the firm, and the attorney therefore should have secured advance approval for the outsourcing.[27]

The New York City bar takes the minority view that disclosure is not per se required.[28] Instead, disclosure is required, for example, if one of these factors is present:

(a) non-lawyers will play a significant role in the matter, e.g., several non-lawyers are being hired to do an important document review; (b) client confidences and secrets must be shared with the non-lawyer, in which case informed advance consent should be secured from the client; (c) the client expects that only personnel employed by the law firm will handle the matter; or (d) non-lawyers are to be billed to the client on a basis other than cost, in which case the client’s informed advance consent is needed.

Likewise, the Los Angeles County Bar – applying a California ethics rule that differs from its Model Rule counterpart – opines that a client must be informed only if use of an LPO constitutes a “significant development” in the representation.[29]

The safest view is most certainly to disclose use of LPO providers. As discussed below, the rules governing release of confidential client information probably also require a client to give informed consent to use of an LPO.

Confidentiality

Model Rule 1.6 prohibits an attorney from revealing information “relating to the representation of a client” absent informed consent or implied authorization from the client.[30] There are at least two distinct confidentiality concerns.

First, the attorney must have authorization to disclose information to the LPO. Virtually any use of an LPO will involve sharing information falling under Model Rule 1.6,[31] so its disclosure must be either impliedly or expressly authorized by the client. The prevailing view is that an attorney must secure informed consent to release confidential information to an LPO provider.[32] The Ohio ethics board rejects the notion that an attorney has implied authorization to share client information with an outsourcing provider, since “confidentiality is a hallmark of the attorney client relationship,” and the client is therefore justified in believing her information will remain within the law firm.[33] Likewise, the ABA has opined that a client impliedly consents to disclosure of information with contract attorneys working within a firm, but concludes that the more attenuated supervision and control makes LPO providers qualitatively different.[34] As the Colorado Bar Association has put it, there is no “convenience” exception to Model Rule 1.6.[35]

Second, the attorney must take steps to ensure client information is not disclosed by the LPO provider.[36] At the minimum an LPO provider should be required to sign a confidentiality agreement.[37] This agreement should require that the staff understand and adhere to U.S. confidentiality rules and outline the procedures the LPO provider will use to safeguard client information.[38] Further measures an attorney may take include:[39]

  • Release no more client information than necessary.
  • Periodically remind the LPO of confidentiality rules.

For foreign service providers the situation is far more complex as discussed below.

Conflicts of interest

Under Model Rule 1.8, attorney conflicts of interest are imputed to members of the same law firm.[40] “Firm” is defined by reference to traditional organizational models of law practices, such as a partnership.[41] Considering that an LPO provider operates beyond the organizational structure of the outsourcing firm, it is somewhat unclear what legal rule governs conflicts from the standpoint of the LPO provider.[42] The Model Rules define what constitutes a conflict of interest for an attorney, but not for a third-party non-lawyer. Further, a non-lawyer’s conduct must only be compatible with – not adherent to – the Model rules.[43] Ethics boards have generally failed to articulate a standard for assessing conflicts of interest among LPO providers.[44]

The New York Bar appears to take the view that an impermissible conflict exists if the LPO is currently – or has in the past – performed work for any adverse party.[45] Such a rule would be far narrower than conflict standards governing lawyers and law firms.[46] The ABA advises that the LPO provider must not work for adversaries of clients “on the same or substantially related matters.”[47] This language invokes the legal standard applicable to duties owed to former clients: an attorney cannot represent a new client in “the same or a substantially related matter” to the former client’s representation.[48] Other ethics bodies are far vaguer. One commentator takes the view that it may be possible for an LPO provider to work for both sides in a contested matter, so long as screens were established to segment each side’s information.[49]

Leaving aside the frustrating vagueness in what constitutes a conflict with respect to the LPO provider, commentators and ethics bodies agree that attorneys have a duty to take steps to avoid such conflicts.[50] Doing so may be as straightforward as simply asking the LPO provider if it has represented the other parties in a matter.[51] At least one commentator takes the dim view that it is “nearly impossible to screen for conflicts” with foreign LPOs,[52] by which he appears to mean impossible by the standards applicable to a firm itself. Yet it appears something less is required when screening conflicts for the LPO provider.

Apart from the need to screen for conflicts of interest as such, it may jeopardize the security of client information if an LPO provider has a motive to share the information with another party, creating an issue under Model Rule 1.6.[53]

Supervisory responsibility

Under Model Rules 5.1 and 5.3, an attorney has the responsibility to require ethical conduct of lawyers and non-lawyers under the attorney’s supervision. For lawyers, the attorney must take reasonable efforts to ensure their conduct “conforms” to the Model Rules;[54] for non-lawyers, the attorney must take reasonable efforts to ensure their conduct is “compatible with” the Model Rules.[55] With both lawyers and non-lawyers, a supervising attorney has committed an ethics violation if she orders or ratifies conduct that constitutes a rule violation.[56]

The supervisory responsibilities of an attorney
Who is being supervised? Supervision required: Supervisor responsible for ethics violation:
Lawyer “shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct” “the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved”
Non-Lawyer “shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer”

 

Model Rule 5.3 deploys a very slippery legal rule. What does it mean to require a non-lawyer to act “compatibly,” though not “conform to,” the Model Rules? The Model Rules of Judicial Conduct contain a similar requirement for supervision of non-judicial staff,[57] but ethics bodies do not require court staff to adhere to the full rigors of judicial ethics as though staff were themselves judges.[58] The Los Angeles Bar Association opines, “the attorney must review the brief or other work provided by [an LPO provider] and independently verify that it is accurate, relevant, and complete, and the attorney must revise the brief, if necessary, before submitting it ...”[59] Though this seems agreeable enough, on close scrutiny it is difficult to identify precisely what this supervision would require.

Consider the following analogous situation. Commentators have long raised concerns that law clerks to U.S. Supreme Court justices may co-opt the decisional power of the justice.[60] This might occur overtly, as would be the case if a justice simply delegated an opinion to a clerk without any review, but may also occur covertly, as would be the case if the clerk turned in a slanted review of existing case law. The former is obviously problematic, and likewise an attorney may not simply sign-off on a brief drafted by an LPO provider.

Short of independently reviewing all law incorporated into a brief – largely obviating the point of delegating that work[61] – how does a Supreme Court justice or outsourcing attorney assure herself of the accuracy of legal work? Ethics bodies have not examined this question, and have been satisfied to opine only that some review and supervision is required. The practitioner should be adequately protected by adhering to the safeguards described below.

The supervisory duties highlight the core ethics concern with outsourcing: the attorney’s ultimate responsibility for a representation. Ethics bodies have agreed on certain measures that must be taken by the outsourcing attorney to provide adequate supervision.[62] The outsourcing lawyer should:

  • Review background information about the firm (such as industry reputation);
  • Review a sample of the firm’s work product that is comparable to the project at hand;
  • Review the resumé of the non-lawyer, assessing educational backgrounds.
  • Conduct reference checks and investigate the background of the non-lawyer.
  • Interview the lawyers involved;
  • Obtain background information about any intermediary engaging the non-lawyer.
  • Interview supervisors to be involved on the project.
  • Review ethical standards with individuals who will perform work and incorporate the ethical standards into the terms of the contract with the firm.
  • Ensure the non-lawyer understands the assignment at hand.
  • Set clear expectations about how the project will be discharged.

An ABA advisory opinion – after endorsing many of the factors set forth above – suggests more strenuous safeguards that may be taken by a firm. The ABA recommends:

  • Investigate the security measures in effect in the provider's premises, including its

computer network and refuse disposal systems; and

  • Depending on the circumstances, it may be prudent to conduct an on-site visit in order to get an impression of the professionalism of the lawyers and non-lawyers involved.[63]

The Ohio ethics board correctly opined that adherence to all of the ABA safeguards would be “onerous,” especially for a small firm outsourcing little work.[64] The legal standard in Model Rules 5.1 and 5.3 requires reasonable efforts, and it is difficult to see why reasonable diligence requires a solo practitioner to fly to Mumbai before asking for help on an appellate brief.

The LPO’s inevitable reliance on technology systems – to store and share files and to communicate, for example – adds substantial complexity. An attorney owes a duty of due diligence when selecting third-party technology providers.[65] In application this is quite complex, requiring analysis of technical specifications.[66] The ABA has opined that, “[d]epending on the sensitivity of the information being provided to the service provider, the lawyer should consider investigating the security of the provider’s premises, computer network, and perhaps even its recycling and refuse disposal procedures.”[67] This suggests an attorney would need to examine the provider’s technology systems as though the attorney herself were using them. Such a measure is almost certainly beyond the means of a small law firm with limited reliance on a LPO provider, so it is difficult to see how the measure could be “reasonably” required.

Firms may feel pressure from clients to limit their investment in supervision to trim the bottom line cost of representation.[68] But this sort of pressure is not unique to outsourcing: for any legal task an attorney must balance the need to do a complete and competent job against the desire to accomplish it as efficiently as possible.

Ultimately the practitioner should be protected by following the general safeguards suggested below. The elaborateness of the safeguards also depends on the scale of work at issue. The New York City Bar Association has advised what one commentator refers to as a “sliding scale of supervision… the ambit of tasks that an attorney may delegate to non-lawyers should be commensurate with the degree of supervision that the attorney provides over the work of the non-lawyers[69]

Reasonableness of Fees

Model Rule 1.5 requires that any legal fee billed to a client be reasonable. LPO providers typically bill attorneys a set amount for a specified service and indeed, other fee structures could violate the prohibition on fee-splitting with non-attorneys.[70] The cost of LPO services may be passed on to clients in at least two ways, and the method makes a difference.

First, the LPO service may be billed to the attorney’s client as an expense item.[71] If structured this way, ethics bodies generally agree that the client may be billed only for the actual cost of the service plus a share of the firm’s overhead expenses.[72] Yet the ABA seems to suggest the client may be billed only for overhead costs associated with providing the LPO services, which “may be minimal or nonexistent.”[73] The Los Angeles County bar association holds that a firm may add a markup when passing the cost of an LPO service, but must disclose this markup to the client.[74]

Second, it may be permissible for an attorney to wrap the cost of outsourcing into a sum billed as a legal fee, subject only to the ultimate reasonableness requirement. This approach is appealing to a firm which may take the benefit of the labor arbitrage, or elect to pass some or all of the cost savings to the client. The New York City Bar rejects this approach on the view that work by a non-lawyer is per se not a legal service.[75] The Ohio ethics board opines that billing LPO costs as a legal fee may be permissible, but that best practices call for billing separately as an expense plus a reasonable share of overhead.[76]

Marketing

Model Rule 7.1 forbids an attorney from making false or misleading statements regarding her services.[77] Could a firm’s marketing materials be misleading by failing to disclose that a firm outsources some of its work? Because of the varied training and qualifications of legal professionals in other countries, a firm will want to be careful about how it represents those qualifications to clients.[78] No known ethics opinions have addressed this issue.[79]

Further, Model Rule 7.5, governing representations about a law firm’s name, requires that such representations not be false or misleading.[80] Does a firm misrepresent itself if outsourcing attorneys do some or all of the firm’s legal work? The ABA has opined that Model Rule 7.5 implies that clients are entitled to know who is responsible for their representation.[81] But the best view is that the firm’s name need not reflect its choice to outsource, since it is the firm’s attorneys who shoulder responsibility for the representation.[82]

Special Considerations for Foreign Service Providers

It is inaccurate to say simply that “the location of the non-lawyer assistant is irrelevant.”[83] As discussed in this Section, use of foreign LPO providers adds additional ethical complexity.

Supervision

Jurisdictions to consider the issue have disagreed about whether to treat a foreign attorney as a lawyer 5.1 or non-lawyer for purpose of determining the duties of a supervisor.[84] It appears that the prevailing view[85] – and the more conservative approach for practitioners – is to treat the foreign attorney as a non-lawyer.

The San Diego Bar Association has recommended that the following factors be used to assess the level of supervision required for a foreign lawyer:[86]

  • Whether the non-attorney may be disciplined or terminated for improper conduct;
  • Whether the non-attorney's compensation can be adjusted for poor performance by the non-attorney;
  • Whether the non-attorney has been educated and/or trained in any way by the attorney;
  • Whether the attorney has the ability to review the non-attorney's work ethics and practices;
  • Whether the attorney regularly provides input to the non-attorney on his/her performance; and
  • Whether the attorney has the ability or discretion to restrict or confine the non-attorney’s areas of work or scope of responsibility.

Confidentiality

Of the two confidentiality concerns raised above, the second – release of information by the LPO provider – is especially complex with a foreign service provider. Most ethics decisions and commentators agree that an attorney has the responsibility to ascertain the foreign legal rules bearing on confidentiality concerns. For example:

Do those laws protect privacy? Do laws of the local jurisdiction require the outsource supplier to keep confidential information private? Do the laws provide an adequate remedy to the law firm and its client should the outsource supplier breach its obligations of confidentiality? Are contractual obligations of confidentiality recognized and sufficiently enforced in the outsourcing country? Are adequate and real remedies available in the event of a breach?[87]

While these inquiries would require extremely onerous research by a U.S. attorney, there is no reason the outsourcing firm should shoulder such responsibility. Rather, the queries should be posed to the prospective LPO provider, who should respond with appropriate legal citations in support of its answers.

Unauthorized practice of law

Under Model Rule 5.5, an attorney may not assist another individual in the unauthorized practice of law (UPL).[88] Again, the key point is that the attorney’s ultimate responsibility for the legal work cannot be delegated to a non-lawyer.[89] So long as adequate safeguards are taken to ensure this responsibility, most ethics bodies conclude that an attorney avoids aiding UPL.[90] In fact, most outsourcing firms specifically disclaim that they provide legal services, and disavow the creation of an attorney client relationship.[91]

In order to avoid assisting in UPL an attorney must be competent to – and must actually – supervise the work of a foreign lawyer.[92] If these safeguards are taken, ethics bodies have agreed that the supervising attorney can safely avoid facilitating the unauthorized practice of law.[93]

One commentator advises that “[a] law firm hiring an outside company needs to be sure that none of the assigned tasks could be considered the unauthorized practice of law.”[94] But the focus should be on the level of supervision and independent judgment exercised by the outsourcing attorney, rather than on the task itself. For example, a lawyer may delegate to a student law clerk a task that would constitute the unauthorized practice of law if performed without supervision.[95] As with a law clerk, the question is whether a licensed attorney has taken effective responsibility for the task.

The New York City Bar refused to adopt a per se rule by which attorney supervision would necessarily whitewash activity that would otherwise constitute UPL.[96] To safeguard against UPL, the lawyer must “first set the appropriate scope for the non-lawyer’s work and then vet the non-lawyer’s work and ensure its quality.”[97]

Appendix

The following checklist summarizes the steps an attorney should take when appraising a potential legal process outsourcing provider. As discussed above, some steps proposed by ethics regulatory bodies seem overly onerous for firms making only limited use of outsourcing. Steps are marked *if they are onerous, or unnecessary in the view of the author. Steps are marked + where the author suggests the burden should be placed on the LPO provider to supply the needed information.

The Outsourcing Checklist

  • Assessing the provider
    • Credibility of the LPO firm
      • A sample of work product+
      • Length of time in business
      • Existence of written policies and procedures concerning confidential information+
      • Past or pending lawsuits
      • Analyze security structure of computing systems+
      • Site visit*
    • Personnel:
      • Written hiring policies+
      • Job requirements+
      • Current resumes+
      • Background checks+
      • Interview the personnel regarding the project at hand.
    • For foreign providers:
      • Does the country’s law recognize privilege? +
      • Is a bar exam required?+
      • Is a law degree required? +
      • Must attorneys meet good character requirements? +
      • May the attorney be disciplined for unethical conduct? +
      • Will compensation be reduced for poor performance? +
      • Have the staff received training in U.S. ethics rules? +
    • Secure written service agreement with LPO provider
      • Provider agrees to adhere to Model Rules confidentiality obligations
      • Provider agrees to screen for conflicts based on attorney providing identity of adverse parties
      • Provider agrees to represent in writing whether conflicts exist
      • Venue and choice of law reflect attorney’s jurisdiction of practice
    • Create office policies for interfacing with the LPO provider
      • Client information will be disclosed to provider only if necessary for the LPO provider’s task.
      • Procedure is established for periodic discussions with LPO provider re: client confidence rules.
      • Procedure is established for supervision of LPO staff:
        • Tasks are clearly defined for LPO staff
        • Attorney discusses assignment with LPO staff to determine qualifications for task, drafts memo to client file
        • No work product is used without independent attorney review
      • Disclosure and informed consent from client:
        • Client is told in writing that outsourcing will be used. Describe the particular tasks to be outsourced.
        • Client consents in writing (this may be included in the representation agreement) to use of, and disclosure of confidential information to, the LPO provider.
        • Client is told how the outsourcing agreement is structured (i.e., is provider hired directly or through third-party).
      • Bill the client for the LPO service
        • Explain the fee
        • Establish office protocol for billing the cost of the LPO service plus a percent of office overhead

[1] ABA Commission on Ethics 20/20, Revised Proposal – Outsourcing (Sep. 19, 2001), at 2, available at http://tinyurl.com/mskpbca (last visited June 10, 2013). In the business world, “outsourcing” refers to delegating a particular process to a third party; “offshoring” refers to relocating work processes to capture efficiencies, usually of lower-cost labor. Mary C. Daly and Carole Silver, Flattening the World of Legal Services? The Ethical and Liability Minefields of Off-Shorting Legal and Law-Related Services, 38 Geo. J. Int'l L. 401, 402-03 (Spring 2007).

[2] Debbie Legall, Client Demand for Reduced Bills Is Forcing Law Firms to Think Carefully about the Business Benefits and Ethical Pitfalls of Outsourcing, 64 No. 5 Int’l B. News 57 (Oct. 2010).

[3] Joshua A. Bachrach, Note, Offshore Legal Outsourcing And Risk Management: Proposing Prospective Limitation of Liability Agreements Under Model Rule 1.8(h), 21 Geo. J. Legal Ethics 631, 631 (Summer 2008) (citing Vesna Jaksic, Guidelines for Outsourcing Grow: Three Bar Associations Advise on Fees and Disclosure to Clients, NAT'L L.J., Apr. 30, 2007, at 5, 5).

[4] See ABA Commission on Ethics 20/20, supra note 1. The Commission proposed comments to the Model Rules of Professional Conduct to address their application to outsourcing. The only proposed rule revision was to 5.3, clarifying that rules governing supervision of non-attorney assistants applies to service providers such as cloud-computing.

[5] Colo. Bar Ass’n Ethics Comm. , Formal Op. 121 (June 16,2009), available at http://tinyurl.com/kx4kpcf (last visited June 14, 2013); ABA Formal Op. 08-451 (Aug. 5, 2008); Prof. Ethics of the Fla. Bar, Op. 07-2 (Jan. 18, 2008), available at http://tinyurl.com/kruc232 (last visited June 14, 2013); N. Car. State Bar, Formal Ethics Op. 2007-12 (Apr. 25, 2008, available at http://tinyurl.com/lnm2auk (last visited June 14, 2013); Los Angeles Co. Bar Ass’n Prof. Resp. and Ethics Comm., Op. 518 (2006), available at http://tinyurl.com/kaq2pnm (last visited June 14, 2013); Ohio Sup. Crt. Bd. of Comm'rs on Grievance and Discipline, Advisory Op.2009-6 (Aug. 14, 2009), available at http://tinyurl.com/lgdecaa (last visited June 10, 2013); San Diego Bar Assn. Op. 2007-1 (2007), available at http://tinyurl.com/nxklxlb (last visited June 10, 2013); N.Y. City Bar Ass’n Comm. on Prof. and Jud. Ethics, Formal Op. 2006-3 (Aug. 2006), available at http://www2.nycbar.org/Ethics/eth2006.htm (last visited June 14, 2013).

[6] For a discussion of tort liability see Daly and Silver, supra note 1, at 440-44.

[7] See Pete Roberts, Practice Success 101: Contract Lawyering, available at http://tinyurl.com/n83l3x6 (last visited June 14, 2013) (“A contract lawyer enters into an agreement with another lawyer or law firm to do a certain scope of work, work generally for a certain period of time, or both.”).

[8] Brandon James Fischer, Note, Outsourcing Legal Services, In-Sourcing Ethical Issues: An Examination of the Ethical Considerations Arising From The Practice Of Outsourcing Legal Services Abroad, 16 Sw. J. Int'l L. 451, 456 (2010).

[9] San Diego Bar Assn. Op. 2007-1, supra note 5.

[10] Fischer, supra note 8, at 457.

[11] NPR On-Air Interview with Puneet Mohey, President of Lexadigm (May 1, 2005), available at http://tinyurl.com/kgd8xzl (last visited Apr. 30, 2007).

[12] Fischer, supra note 8, at 459.

[13] Martha A. Mazzone, Ethics Rules Require Close Supervision of Offshore Legal Process Outsourcing, 55 Boston Bar J. 25, 26 (Winter 2011).

[14] Daly and Silver, supra note 1, at 410-11.

[15] ABA Formal Op. 08-451, supra note 5, at 2.

[16] Fischer, supra note 8, at 460.

[17] The Model Rules are accessible free of cost at http://tinyurl.com/4omg5ch (last visited June 14, 2013).

[18] Model Rule 1.1.

[19] See N. Car. State Bar, Formal Ethics Op. 2007-12, supra note 5.

[20] See, e.g., N. Y. City Bar Formal Op. 2006-3, supra note 5 (“Proper supervision is also critical to ensuring that the lawyer represents his or her client competently… obviously, the better the non-lawyer’s work, the better the lawyer’s work-product”).

[21] See Section III(e), infra.

[22] Model RPC 1.4(a)(2). See also Model RPC 1.2(a) (“a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued”).

[23] See, e.g., Ohio Op.2009-6, supra note 5.

[24] Id., at 4.

[25] ABA Formal Opinion 08-451; ABA Commission on Ethics 20/20, supra note 5, at 4.

[26] San Diego Bar Assn. Op. 2007-1, supra note 5.

[27] Id. at 3.

[28] See N. Y. City Bar Formal Op. 2006-3, supra note 5.

[29] L.A. Co. Bar Op. 518, supra note 5.

[30] Model Rule 1.6(a). See also Model Rule 1.6(b) (setting forth further grounds for disclosure).

[31] For the view that an attorney is highly limited in what information may be disclosed see Jamila Johnson, Pillow Talk; The Obligations of RPC 1.6, 66 No. 11 Wash. St. B. News 11 (Nov. 2012), available at http://tinyurl.com/lqrmp52 (last visited June 12, 2013).

[32] See Ohio Advisory Op.2009-6, supra note 5; N. Y. City Bar Formal Op. 2006-3, supra note 5.

[33] Ohio Advisory Op.2009-6, supra note 5, at 4.

[34] ABA Formal Op. 08-451, supra note 5, at 5 (concluding implied authorization “does not extend to outside entities or to individuals over whom the firm lacks effective supervision and control”). Oddly, the Opinion suggests elsewhere that an attorney has a higher standard of care when supervising LPO providers. Id. at 3, n. 2. If a higher standard of supervision is required for overseeing LPO providers, why would implied consent not obtain as it does for the use of contract attorneys working within a firm?

[35] Colo. Bar Ass’n Ethics Comm., Formal Op. 121, supra note 5.

[36] Model Rule 1.7(c) “requires a lawyer to act competently to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision.” Model Rule 1.7, cmt. 18.

[37] ABA Formal Op. 08-451, supra note 5, at 5.

[38] See James I. Ham, Ethical Considerations Relating to Outsourcing of Legal Services By Law Firms to Foreign Service Providers: Perspectives From The United States, 27 Penn St. Int'l L. Rev. 323, 336 (2008).

[39] See N. Y. City Bar Formal Op. 2006-3, supra note 5.

[40] MRPC 1.8(k).

[41] MRPC 1.0(c). But the ABA has interpreted “lawyers in a firm” – as used in Model Rule 5.1 governing supervisory duties – to include attorneys working for an LPO provider. ABA Formal Op. 08-451, at 3 n. 2

[42] See Daly and Silver, supra note 1, at 439 (noting summarily that rules governing conflicts within a firm “is a likely template for identifying the conflicts dilemmas springing from the offshoring of legal services to foreign lawyers”).

[43] See infra, Section III(e) (discussing supervision duties).

[44] See, e.g., N. Y. City Bar Formal Op. 2006-3, supra note 5 (explaining steps to be taken to assess conflicts, but articulating no rule for identifying impermissible conflicts); L.A. Co. Bar Op. 518, supra note 5.(same).

[45] N. Y. City Bar Formal Op. 2006-3, supra note 5.

[46] An impermissible conflict occurs if an attorney will be “materially limited” by his responsibilities to a third party, imposing a scope of potential conflicts far beyond the parties to a matter. Model Rule 1.7(a)(1).

[47] ABA Formal Op. 08-451, at 5.

[48] Model Rule 1.9(a).

[49] Ham, supra note 38 at 339.

[50] N. Y. City Bar Formal Op. 2006-3, supra note 5.

[51] Id.

[52] Fischer, supra note 9, at 466.

[53] See ABA Formal Op. 08-451, supra note 5, at 5 (“…to minimize the risk of potentially wrongful disclosure, the outsourcing lawyer should verify that the outside service provider does not also do work for adversaries of the clients…”).

[54] Model Rule 5.1(b).

[55] Model RPC 5.3(a).

[56] Model Rule 5.1(c) (lawyers); Model Rule 5.3(1) (non-lawyers).

[57] American Bar Association Model Rule of Judicial Conduct (Model CJC) 1.12(A) (“A judge shall require court staff, court officials, and others subject to the judge’s direction and control to act in a manner consistent with the judge’s obligations under this Code”). The Models CJC is accessible free of charge at http://tinyurl.com/k7ggp57 (last visited June 14, 2013).

[58] Ariz. Sup. Ct. Jud. Ethics Advi. Comm., Op. 92-13 (Sep. 1, 1993). See also N.M. Advis. Comm. On CJC., Op. 99-04 (Apr. 12, 1999) (advising that court staff attorney is “not generally subject to all of the same standards applicable to judges under the Code”).

[59] L.A. County Bar Ass'n. Op. 518, supra note 6, at 8-9.

[60] See, e.g., Todd C. Peppers & Christopher Zorn, Law Clerk Influence on Supreme Court Decision Making: An Empirical Assessment, 58 DePaul L. Rev. 51, 53 (2008) (assessing the influence of law clerk ideology on Supreme Court decisions); Carolyn Shapiro, The Law Clerk Proxy Wars: Secrecy, Accountability, and Ideology in the Supreme Court, 37 Fla. St. U. L. Rev. 101 (2009) (arguing that law clerk ideology may have weakened the Supreme Court’s legitimacy). See also Penelope Pether, Sorcerers, not Apprentices: How Judicial Clerks and Staff Attorneys Impoverish U.S. Law, 39 Ariz. St. L.J. 1 (2007) (arguing the pervasive reliance on law clerks has diminished the quality of the federal judiciary).

[61] See Sejal Patel, Is Legal Outsourcing Up To The Bar? A Reevaluation Of Current Legal Out-Sourcing Regulation, 35 J. Legal Prof. 81, 94 (Fall 2010) (noting the “irony” of needing to closely supervise work outsourced for efficiency).

[62] San Diego Bar Assn. Op. 2007-1, supra note 6 at 4; N.Y. City Bar Formal Op. 2006-3, supra note 6.

[63] ABA Formal Opinion 08-451, Lawyer's Obligations When Outsourcing Legal and Nonlegal Support Services (2008).

[64] Ohio Advisory Op.2009-6, supra note 6, at 8.

[65] For an excellent discussion see Greg Boos, Techno-Ethics: Rapid and Vast Technology Advances Drive Modest Changes to Ethics Rules, 18 Bender’s Immgr. Bull. 133 (Feb. 1, 2013). A truncated version of the article is available at http://tinyurl.com/ktqqpfj (last visited June 14, 2013); the complete article may be obtained by contacting Mr. Boos directly

[66] Cf. id.

[67] Id.

[68] See Ham, supra note 38 (“There may come a point where the drive for cost savings may conflict with the attorney's duty of independent judgment”).

[69] Ham, supra note 38, at 329.

[70] L.A. Co. Bar Op. 518, supra note 5.

[71] For the view this approach is required see N. Y. City Bar Formal Op. 2006-3, supra note 5.

[72] ABA Formal Opinion 08-451, supra note 5, at 6.

[73] Id.

[74] L.A. Co. Bar Op. 518, supra note 5.

[75] N.Y. City Bar Formal Op. 2006-3, supra note 5.

[76] Ohio Advisory Op.2009-6, supra note 5, at 11-12.

[77] Model Rule 7.1 (“…A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading”).

[78] See ABA Formal Op. 08-451, supra note 5, at 4 (noting that attorneys may not make affirmative misrepresentations regarding the “status” of lawyers and nonlawyers).

[79] At least once commentator believes not. Fischer, supra note 9, at 471-72.

[80] Model Rule 7.5(a).

[81] ABA Formal Opinion 88-356 (Dec. 16, 1988) (Temporary Lawyers).

[82] Fischer, supra note 8, at 472 (opining there would be no violation of Model Rule 7.5).

[83] N. Car. Formal Ethics Op. 2007-12, supra note 5.

[84] Mark L. Tuft, Supervising Offshore Outsourcing of Legal Services in a Global Environment: Re-Examining Current Ethical Standards, 43 Akron L. Rev. 825, 827 (2010).

[85] Id., at 841.

[86] San Diego Bar Assn. Op. 2007-1, supra note 5, at 5.

[87] Ham, supra note 38, at 336.

[88] Model Rule 5.5(a).

[89] See N.Y. City Bar Formal Op. 2006-3, supra note 5 (“to avoid aiding the unauthorized practice of law, the lawyer must at every step shoulder complete responsibility for the non-lawyer’s work”).

[90] See, e.g., L.A. Co. Bar Op. 518, supra note 5.

[91] Daly and Silver, supra note 1, at 408.

[92] Cf. Tuft, supra note 84, at 832-40 (summarizing and analyzing ethics opinions).

[93] See, e.g., ABA Formal Op. 08-451, supra note 65 New York City Bar Comm. Formal Op. 2006-3, supra note 5; Los Angeles County Bar Assn. Formal Op. 518, supra note 5; San Diego County Bar Assn. Formal Op. 2007-1, supra note 5; Fla. State Bar Assn. Proposed Advisory Op. 07-2, supra note 5; N.C. State Bar Formal Op. 12, supra note 5.

[94] Ham, supra note 38, at 329.

[95] Restatement (Third) of The Law Governing Lawyers (2012), § 4 (cmt. g) (“In the course of [work for a firm], a nonlawyer may conduct activities that, if conducted by that person alone in representing a client, would constitute unauthorized practice”).

[96] N. Y. City Bar Formal Op. 2006-3, supra note 5.

[97] Id.

Groupon for Lawyers: Does this marketing strategy make sense — or cents?

Is it ethical for attorneys to advertise on “daily deal” websites like Groupon and LivingSocialMy article in the current Jul-Aug 2013 issue of NWLawyer discusses some serious ethics issues: •  Are daily deal sites a form of paid referral? •  Does an attorney engage in fee splitting with a non-lawyer? •  Are trust accounting rules satisfied?

My personal conclusion is that daily deal advertising is ethical — so long as safeguards are taken.

But is it a good idea?

Attorneys will take home only 25% of the purchase price of a service offered on a daily deal site. Sites require a 50% discount from the “shelf price,” then the site takes half of the discounted price as a marketing fee. For one attorney, this worked out to $13–26/hr for the work performed. This deep discount is far below the value of a service, so the marketing will be a success only if it leads to other work.  This could come either as additional work for the same client or through referrals.

Restaurants sometimes complain of “low-quality” bargain-hunting customers.  A St. Louis attorney who marketed $99 will packages via Groupon found this not to be the case. (View the ad here). In his experience, clients who found him via Groupon returned the respectful treatment they received from his law firm.

Attorneys may believe their dignity will be undermined by a marketing media associated with discounted donuts and beer tastings. But, as I argue in the NWLawyer article, this attitude is at tension with the goal of making services accessible and affordable. In my view, the tastefulness of a Groupon ad should be judged by its content, not the company it keeps.

[This post first appeared on the Washington State Bar Association's Sidebar blog]