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not only the individual attorney at issue in this case, but also her
firm and their local counsel, should be disqualified – again, on the
assumption that the confidences shared by one client/set of clients
were no doubt shared with other members of the firm or firms:
“Considering the irrebuttable presumption that [the attorney]
shared [the regional center’s] confidences during her prior representation with her fellow[firm’s] attorneys, and the plain language
of Louisiana Rule 1.10, which automatically disqualifies all lawyers in a law firm when one attorney in the firm is disqualified,
the Court has no choice but to disqualify the entire… firm.”4
a prospective investor without disclosing confidential information
regarding a project. Lastly, and most importantly, the individual
interests of the attorney(s) (e.g., in maximizing his or her financial
stake in the success of the project, as well as in maximizing the fees
associated with working with an ever-larger group of investors) will
always lurk as a potential material limitation on the attorney’s ability
to provide fair and impartial representation to both the regional
center/developer and the individual investor(s).
★
Under these circumstances, no amount of attempting to artificially
“wall off” one member or members of a firm from communicating
with other members could defeat the presumption that confidences
have been (or would be) shared, in violation of the attorney’s fiduciary
duties to one or both sets of clients.
III. Should One Legal Team be Representing
Multiple Parties with Potential Conflicts in the
EB-5 Investment Context?
All of this this begs the question: is it really advisable for one
legal team to attempt to represent regional centers/developers and
investors? That is, can a single firm do so with the confidence that
a knowing waiver has been secured from all of the clients involved?
The conservative answer to these questions, in the opinion of these
authors, is “no.” Why? First, validity of a waiver can always be
challenged at a later date, most likely on the grounds that it was not
“knowing.” Second, these challenges may be difficult to defeat, given
that it is presumptively not feasible to secure informed consent from
Bethany Mito Lee
Nelson Kuo Hua Lee is an EB-5 immigration attorney and president and founding partner of Lee &
Lee, PS, a law firm experienced in assisting clients
with the experiential and language challenges that
the U.S. legal system may present to non-native
individuals. Lee & Lee, PS also works in customs
and international law and adjustment of status,
as well as government contracts, antitrust cases,
employment claims, insurance
coverage, real estate and
commercial disputes, criminal
defense, and personal injury.
Nelson Kou Hua Lee
Id. at 22-23.
4
100
Bethany Mito Lee is a partner in Lee & Lee, PS.
Prior to founding the firm