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THREE
3. Map out the division of labor and make
sure the fee arrangement makes sense.
Make sure you have a clear division of labor mapped out and reflected in your engagement agreement with your co-counsel. Think
of a sliding scale or a balance. Try to get the right mix of how much
work you will do and how much the co-counsel will do. For your
first case, I recommend that your co-counsel does more than 50
percent of the work. If the work balance is too heavy on your side,
co-counsel will spend too much time reviewing, revising, or redoing
what you have done. If the balance is too heavy on co-counsel’s side,
then you really are not “learning by doing,” and you may be paying
too much or giving up too much of your legal fee. Remember that
the ABA rules require a division of fees between lawyers that is proportionate to the services performed and the responsibility assumed
by each lawyer, and that the total fee is reasonable.
Model Rule 1.5 (e) states:
A division of a fee between lawyers who are not in the same
firm may be made only if:
1. The division is in proportion to the services performed
by each lawyer or if each lawyer assumes joint
responsibility for the representation;
2. The client agrees to the arrangement, including the
share each lawyer will receive, and the agreement is
confirmed in writing; and
3. The total fee is reasonable.
Finally, remember to calendar all deadlines and keep track of
important dates, even if co-counsel is doing the same.
FOUR
4. Not all EB-5 cases will require
the same amount of work.
The type of EB-5 case matters greatly in how much work is to
be done. The odds are that your first EB-5 case will be a regional
center investment, which is nice because, in almost all cases, the
regional center will provide you with a project template, including the comprehensive business plan, economist’s report and
other project documents. Many regional center investors obtain
third-party source of funds reports. So your job as immigration
counsel is to compile, organize, and explain these components
in your I-526 cover letter or supporting memorandum. Many
regional centers provide an I-526 template cover letter as well.
A direct EB-5 case, unless it comes from an EB-5 developer
who provides the same type of a package/template as a regional
center, will require much more time and energy; hence the need
for co-counsel is greater. The EB-5 investor or developer may be
relying upon you to coordinate all of the petition components,
which include working directly with a business plan writer, an
SEC compliance attorney, and other EB-5 industry professionals.
This type of case will be much more time-consuming than a
regional center EB-5 case.
FIVE
5. Stay up to date in the EB-5
space and use checklists.
EB-5 practitioners must keep up to date with the latest trends
because the goal posts move even on issues that we thought were
settled, sometimes on a week-to-week basis. Much of the EB-5
law cannot be found in the regulations and statutes. USCIS
seems to be content with revealing its policy through the issuance
of RFEs and denials and that means that inexperienced practitioners may not be aware of the latest RFE trends. Therefore, the
sharing of information through conferences, EB-5 books and
articles, and USCIS stakeholder engagements is vital.
A final point to remember is that a good case-processing
checklist that delineates each step of the EB-5 case will be
invaluable. Go over this checklist early and often with your
co-counsel to keep track of progress.
So, that is how you work on an EB-5 case in a co-counsel
relationship.
How do you get your first EB-5 investor client? That part is
up to you.
★
Fredrick Voigtmann is an EB-5 immigration attorney at the Law Office of Fred
Voigtmann, P.C. in Woodland Hills, Calif. For nearly 20 years, Voigtmann has
dedicated his work to immigration law and has
served on the investor committee of the American
Immigration Lawyers Association. He has mentored
and advised fellow immigration attorneys, providing
them with the knowledge and tools that he utilizes
to work effectively in immigration law. Voigtmann’s
practice offers legal services for immigrating clients
and large companies. He has experience working in
the EB-5 arena since 1997. Voigtmann has worked
for individual EB-5 investors,
regional centers, and EB-5
investment pools. He is an active
part of the EB-5 community.
Fredrick Voigtmann
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EB5 INVESTORS MAGAZINE