TIP FOR CHOOSING A LAWYER
Choosing a lawyer is a huge decision. In the immigration field, the migrant is thousands of miles away, may never meet the lawyer face to face, and is asked to spend thousands of dollars funding one of the most important processes of his/her life. A huge amount of faith and trust is required.
Here are some secrets about how things really work, even at the risk of helping my own future clients to take advantage of me! My comments here will be directed towards potential EB-5 investors, although the concepts apply to any visa class, and any legal engagement.
How do I know whether the person who offers to represent me is qualified?
One of the easiest things to do is look the lawyer up! A lawyer should have some web presence aside from self-generated plaudits on his/her own website. In the US, lawyers are regulated by the state(s) in which they are admitted or practice. Most states have a mechanism to look up an attorney’s bar membership.
For example, am I a member of the bar in good standing? Find out in New Jersey by going to New Jersey Courts On-Line Attorney Search -
Be wary of on-line client reviews. Positive reviews are sometimes placed by attorneys themselves. Negative reviews are equally suspect. References from people you know are the best reviews.
In EB-5 or investment immigration cases, should I trust the recommendation of a business stake-holder?
For the most part developers, employers, sponsors, Regional Centers and people with a stake in the EB-5 industry want you to hire qualified and capable lawyers with whom they will be able to work, too. So they typically recommend people who are good partners for them. Usually, those people are just fine, and they can get things done. However, on occasion, you may encounter a situation where the interests of the sponsor, developer, or the General Partner of a RC diverge from yours. When that happens, can you trust the lawyer to work for YOU?
When choosing a lawyer, remember, that you are probably a one-time engagement. The lawyer hopes to have referrals of lots of other clients just like you. So if it’s a choice between two equally qualified lawyers, you may want to know which of them has more to gain from the relationship with the project, or the general partner. To whom will the lawyer owe his/her loyalty? To you, or to the other parties with whom they have a repetitive business relationship?
In some cases, a lawyer may actually have a conflict of interest, but it may be up to the attorney to tell you that:
New Jersey RPC 1.7. Conflict of Interest: General Rule
(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.
There are ethical conflicts, and there are “marketing conflicts.”
How can I protect myself from unscrupulous lawyers?
Lawyers are regulated by State Bar Associations. Almost every state has adopted some version of the Model Rules of Professional Responsibility. There is a general sense among lawyers that some states do more to protect the client than others. I have not canvassed the RPC of all the states, but the three states in which I am admitted to practice - New York, New Jersey, and Pennsylvania - are all considered client friendly, with New Jersey leading the pack.
New Jersey’s Rules of Professional Conduct can be found here:
Clients will be happy to know that, if a lawyer and a client contract for something that is not permitted under the a state’s Rules of Professional Conduct, the lawyer will not be able to enforce the provision against the client. In fact, New Jersey has very specific and mandatory arbitration rules that may apply when a lawyer wants to sue a client for non-payment of fees. See New Jersey Court Rule 1:20A.
It’s hard to generalize which states provide more protection, I’ve had at least one bad experience trying to enforce a client’s rights against a lawyer in Florida in an EB-5 case that would not have been permitted in New Jersey. But most states have a procedure where you can report an ethical breach by an attorney.
Is a bigger law firm better?
Lots of lawyers get business by impressing with the size and reputation of their firms. In my opinion, bigger does not always get better results. In addition, because of the nature of the American law firm business model, and it may actually cost more to hire bigger firms, or you may get poorer service and less accountability.
Like in many businesses, the best way to be the highest paid person in a law firm is to bring in business and have the cheapest or lowest paid employee in the firm do the work. Sales rule! So imagine that you hire a lead partner in a 500-lawyer firm on a flat or set fee. You have no control over who actually does the work. A paralegal or even a clerk may put together your EB-5 source of funds report, or other important parts of your presentation. The attorney you thought you hired is not involved on a day-to-day basis, and may not know the details of your case.
On the other hand, if you hire a small firm, or a solo lawyer, you are very important to that lawyer, and it may be the lawyer herself that does even the most mundane tasks associated with your case. But beware! In the EB-5 and investment immigration setting, there may be tax or bankruptcy issues. The lawyer may not have the necessary depth in those issues.
Finally, law firms make money through leverage. High volume family-based immigration firms are very good at what they do - which is process high volumes of standard cases for low prices. They make money by training many non-lawyers to do the repetitious work. These firms typically have a lot of support staff per attorney. If your case is in any way unusual, this may not be a good choice for you. These kinds of firms are not the best choice for super-sophisticated matters.
Hourly vs Flat Fees: Which are better?
Immigration is a field where flat fees are very common. Clients like to cap costs. And who can possibly be worth $700 dollars per hour? That’s ridiculous, right? Not necessarily.
First, if a firm charges $700 per hour for a partner, the partner is not putting that is his/her pocket. Again, consider the law firm model. Traditionally, the model splits law firm revenue into thirds: ⅓ profit, ⅓ overhead, and ⅓ salary. So the associate attorney (non-equity) doing your work for whom a big firm charges $400 per hour may be lucky enough to bring home a salary of about ⅓ of her total billed and collected fees - 2000 hours per year x $400 per hour = $800,000/3 = $266,666. $266,666 is a good living, but it’s the high end, because lawyers often struggle to collect more than 80% of what they bill, and most have a very hard time finding 2000 hours of quality work. Small firm or solo practitioner have a hard time billing more than 1200 hours per year because they have administrative responsibilities.
Meanwhile, the big firm equity partner who controls enough business such that she can fully engage that associate is required to split the ⅓ profit with all the other equity owners of the firm. Firms split equity based upon origination credits and equity proportions. So yes, some lawyers in big firms are making big money, if they can sell well, and find a lot of people to work for them. But most lawyers can’t find enough good business, they don’t get paid by many of their clients, and they share what they bring in with too many people.
Second, attorneys generally set flat fees based upon the hourly cost of their time, regardless. In repetitious cases where the amount of work is easily quantifiable, like immigration cases, attorneys are willing to take a chance of loss on one case with the expectation of a good yield on the next. The individual client gets certainty, and gives the attorney the same revenue in the long run that hourly engagements would. This is one of the things about flat fee work that encourages attorneys to “dumb the work down” to the cheapest producer in their office. Attorneys don’t increase margins by working more; they do it by working cheaper.
For litigation, such as mandamus cases, attorneys are less likely to agree to flat fees, and for good reason. Even mandamus cases aren’t always predictable. Litigation can take on a life of its own. The attorney can not always predict the duration and burden associated with a case. There is an opposing lawyer, and a judge, that may have very different ideas about how the case should go. These are uncontrollable factors: motions, court conferences, depositions, or even more costly, trials. If a US District Court Judge - appointed for life - tells an attorney to do something, it must be done, and somebody must pay for it. That will be you!
Do I have any practical suggestions?
Of course!
Make sure you feel good about the working relationship with the lawyer. You need to get along.
Don’t hire an attorney that brags too much. An attorney that projects modest confidence is more likely the real deal. Avoid any attorney who guarantees an outcome.
Look him/her up!
The initial consultation should be free.
Ask questions taken from the above points. For example, ask how much of the work the attorney you hire will actually do.
Most importantly, never choose an attorney based on price alone!
The point is that you get what you pay for. Sometimes a person will complain to me about their attorney. I often ask, have you paid him/her? The only thing worse than not working is working for free!