What duties do attorneys hired by employers owe employees?

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Attorneys owe absolute duties of loyalty and confidentiality to their clients. Problems arise, however, when there is a conflict of interest. Such conflicts arise when attorneys have separate clients with conflicting interests. This situation very commonly arises when an attorney represents both an employer and employee.

In most situations, having a single attorney represent both the employer and employee is a valid decision. Using a single attorney saves both time and money. It is only when the employer and employee have competing interests that problems arise. In such situations, an attorney may not favor one side over the other. Similarly, an attorney may not continue to represent a party while withholding important information from that party.

Often, an attorney will be hired by an employer to perform services for the company and the employee becomes a third party beneficiary. Whether this creates a duty by the attorney to the foreign national employee depends on the unique facts of the case. Did the attorney receive confidential information from the employee? Did the attorney submit a formal notice of appearance as attorney of record (form G-28) on behalf of the employee? These and other questions are critical to determining the duty an attorney owes an employee.

To the extent that an attorney learns something from an employee, and the employee has an expectation of confidence, the attorney may not disclose that information to an employer or any other third party. If this violates the attorney’s duty to the employer, then the attorney must withdraw from representation of both.

The specific work that an attorney does frequently determines the duty the attorney owes the employee. For example, the filing of a labor certification (PERM) or an immigrant preference petition (I-140) generally do not involve the need to obtain confidential information from the foreign national employee. These filings “belong” to the employer, in the sense that they may only be filed and prosecuted by employers, without any intervention by the employee.

An application for adjustment of status, however, is entirely personal to the employee. The employer may not control when or how such applications are filed, nor may an employer demand that an application for adjustment of status be withdrawn. To the extent that an attorney prepares and files an application for adjustment of status, the attorney represents the foreign national employee only. The attorney may not take any actions adverse to the employee’s interests in this regard. The attorney is also obligated to provide the adjustment of status applicant with a complete copy of the application, as well as copies of any and all communications to and from the USCIS concerning the case.

The law permits an applicant for adjustment of status with a case that has remained unadjudicated for more than 180 days to change jobs, employers, or both without losing eligibility to use the I-140 filed by the sponsoring employer. The only limitation being that the new job must be in “the same or similar occupational classification.”

Some employers, upon learning that an employee has used this provision to change jobs will instruct their attorneys to withdraw the I-140 petition previously filed. Under current law, this is not possible. There is no legal or practical requirement that obligates an employer to attempt to withdraw a previously filed I-140 petition under such circumstances.

An attorney asked to file a withdrawal request for a previously filed I-140 is presented with a clear conflict of interest if that same attorney filed an application for adjustment of status for the employee. By filing an I-140 withdrawal request, the attorney is taking an action that could prejudice the interests of the employee. While employers have no legal right to withdraw I-140 petitions that accompany adjustment of status applications that have been pending more than 180 days, some rogue CIS adjudicators will nonetheless use such action as a basis for improperly denying an application for adjustment of status. These types of denials are easily reversed through the filing of a motion to reconsider, but that does not compensate for the time, expense, and worry that the applicant goes through in the time it takes to process the MTR.

Of greater concern to most applicants who change jobs while still “represented” by the employer’s attorney is the question of what will happen to their pending adjustment of status application? That is, will the employer’s attorney continue to vigorously pursue an approval? What happens if an RFE is issued? How difficult will it be to get information from the former employer’s attorney?
These are all legitimate questions. Any employee who changes jobs, but continues to be represented by the former employer’s attorney needs to clarify certain issues with his or her attorney of record. For example, if directed by the employer to withdraw an I-140 in a case where an adjustment of status application has been pending for more than 180 days, will the attorney do this? Will the attorney notify the employee of all communications between the attorney and the USCIS, including requests for evidence (RFE), notices of intent to deny (NOID), and routine case status inquiries? Will the attorney respond to RFEs and NOIDs on behalf of the employee? Has the attorney provided the employee with a complete copy of the case file to date, including copies of all communications to and from the USCIS involving the employee?

There is nothing wrong with continuing to use the services of a former employer’s attorney, provided the applicant has an understanding with the attorney as to these issues.