O P I N I O N
Inherent Conflicts
of Interest
The Pitfalls of
Multi-Party
Representation in
the EB-5 Context
by Bethany Mito Lee and Nelson Lee
At present, there are no explicit prohibitions –
in state or federal legislation or case law, or in
codified Rules of Professional Conduct (such as
those enacted by the American Bar Association)
– against attorneys representing multiple parties
to an EB-5 transaction. A single immigration firm
can – and frequently does – represent the legal
interests of EB-5 investors, regional centers and/
or developers under the aegis of shepherding the
legal strategy for an entire project. The appeal of
this vertical integration of services is clear: if one
firm is managing every aspect of the legal process
of developing, securing funding for, and completing
the project, there are great administrative
efficiencies associated with this (not the least of
which is that USCIS communicates with one entity
at every phase of project management), as well
as lucrative dividends for the firm itself (keeping
all the work within one firm means no splitting of
fees with outside professionals).
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While this is all well and good for the immigration firms, it is
the opinion of the authors of this article that dual representation
is not in the best interests of the clients that the attorneys are
serving. There are any number of potential conflicts between the
interests of a regional center/project developer and individual
EB-5 investors – many (if not most) of which are impossible for
the clients to effectively and knowingly waive.
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.1
When an EB-5 project is in its “infancy,” it is easy for
attorneys and their clients to have a rosy view of the conflict
issue: when everything is progressing to plan, and there are few
investors, the possibility of a conflict of interest is minimal. It
may seem attractive at that point in time for one legal team
American Bar Association Model Rules of Professional Conduct, Rule 1.7
(Conflict of Interest: Current Clients) (“Model Rules”).
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