May a Connecticut lawyer accept a client and prepare work based on a proposed federal regulation that may never take effect?
Apply this to your situation
This page answers the general question as of 2012. Ask about yours and see what the current Connecticut Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
An immigration lawyer proposed preparing provisional waiver applications before a contemplated federal regulation was finalized. Early preparation might place clients near the front of the filing queue and reduce time abroad if the proposal took effect, but the regulatory process could take months and the change might never be enacted.
The Committee concluded that advance representation is ethically permissible. Rules 1.4 and 1.0(f) require enough information and explanation for each client or prospective client to make an informed decision about the representation.
The required discussion includes the current state of the law, the beneficial effects of the proposed regulation if enacted, the burdens and costs of proceeding before enactment, and the likely impact if the proposal is not enacted. The details may vary with each prospective client's circumstances.
After explaining the material risks, potential benefits, and reasonably available alternatives, the lawyer must obtain the client's informed consent before proceeding.
In practice
Under this opinion, uncertainty about a proposed regulation does not itself bar the engagement. The ethics question turns on whether the client receives enough specific information to decide whether the cost and risk of advance work are acceptable.
Common questions
Q: Must the lawyer wait until the proposed regulation becomes final?
A: No. The Committee permits work before enactment when the client fully understands the uncertainty, costs, risks, and potential benefits.
Q: What information must the lawyer explain?
A: The opinion identifies the current law, possible benefits if the change takes effect, burdens and costs of early preparation, and likely effects if it does not.
Q: Is a general warning that the rule may change enough?
A: The opinion calls for sufficient information about the material risks and reasonably available alternatives, tailored as needed to the prospective client's circumstances.
Q: Is client agreement required before the advance work begins?
A: Yes. The Committee says the lawyer must obtain informed consent after fully explaining the matter.
Background and rules framework
Rule 1.4 requires prompt communication, reasonable consultation about the means of representation, and explanation sufficient for informed decisions. Rule 1.0(f) defines informed consent as agreement after adequate information about material risks and reasonably available alternatives.
Citations and references
Connecticut Rules of Professional Conduct:
- Rules 1.0(f), 1.4(a)(1), 1.4(a)(2), and 1.4(b)
See also
- VSB LEO 1791: Client communication without face-to-face meetings
- MN LPRB Op. 21: Duty to consult about a lawyer's own malpractice
- Arizona Ethics Op. 86-05: Scope of representation and client communication
Source
- Landing page: Connecticut Bar Association Informal Ethics Opinions
- Original PDF: Informal Opinion 12-04
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