When an attorney files a labor-certification permanent-resident visa application for an undocumented worker, requiring representation of both the worker and the employer, what consent and confidentiality duties apply when the later visa petition must disclose the unlawful employment?

Plain-English summary

An attorney was retained by an undocumented worker to obtain a permanent-resident visa under the sixth (labor-certification) preference. The first step required filing an application in the employer's name, on which the attorney appeared as the employer's counsel and which did not require affirmative disclosure of unlawful employment. A later step required the attorney to file a petition with the Immigration and Naturalization Service disclosing where the alien was currently employed, which would reveal that the employer had hired the undocumented worker in violation of 8 U.S.C. section 1324a, exposing the employer to civil and potentially criminal penalties.

The committee identified that an attorney-client relationship arose with the employer, at least for filing the labor-certification application, because the employer's agreement to assist the alien through the alien's attorney constituted retaining the attorney for legal service within the meaning of Evidence Code section 951, whether or not the employer paid fees. It identified Business and Professions Code section 6068(e)'s duty to preserve client secrets, which continues after the representation ends, and adopted the ABA Model Code DR 4-101(A) definition of "secret" (information whose disclosure would be embarrassing or detrimental to the client), as it had in its Opinions 386 and 436.

The committee concluded that the employment information the attorney must disclose on the alien's petition falls within that definition of secret and is material to the alien's representation under Rule 3-310(D), while also relating to the attorney's former representation of the employer under Rule 3-310(A). It therefore concluded that mutual informed written consent of both the alien and the employer is required before undertaking the representation, even if the relationship with the employer terminates after the labor certificate issues but before the petition is filed. If the employer refuses informed written consent and a professional relationship with the employer has arisen, the attorney may not proceed to file the petition, because doing so would require disclosing the former-client employer's secret. The committee identified that the attorney must, at minimum, inform both parties of the conflict and of the potential penalties to the employer, and obtain each one's written consent.

Currency note

This opinion was issued in 1991, before California's November 1, 2018 adoption of the renumbered Rules of Professional Conduct. It interprets former Rule 3-310 (subsections (A), (B), and (D)) and Business and Professions Code section 6068(e); these correspond to current Rules 1.7, 1.9, and the confidentiality duty (Rule 1.6 / section 6068(e)). It also predates later amendments to federal immigration law and practice. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

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Common questions

Q: Is the employer a client when an attorney files a labor-certification application for an undocumented worker?

A: Per the opinion, yes, at least for that filing. The committee concluded an attorney-client relationship arose with the employer under Evidence Code section 951 because the employer agreed to be represented through the alien's attorney, regardless of who paid the fees.

Q: Why does the attorney need the employer's consent?

A: Because a later petition must disclose the unlawful employment, which is the employer's secret under section 6068(e) and material under Rule 3-310(D). The committee concluded both the worker's and the employer's mutual informed written consent are required before undertaking the representation.

Q: What happens if the employer refuses consent?

A: Per the opinion, if a professional relationship with the employer has arisen and the employer refuses informed written consent, the attorney may not file the alien's petition, because doing so would require disclosing the former-client employer's secret.

Background and rules framework

The opinion interprets former California Rule 3-310 (subsections (A), (B), and (D), governing conflicting interests and material confidential information) and Business and Professions Code section 6068(e). Rule 3-310 corresponds to ABA Model Rules 1.7 and 1.9, and section 6068(e) parallels Model Rule 1.6. The committee relied on Evidence Code section 951's definition of "client" and on the ABA Model Code DR 4-101(A) definition of "secret" it had adopted in earlier opinions.

Citations and references

Rules of Professional Conduct (former):

• California Rule 3-310(A), (B), and (D) (conflicting interests and material confidential information)

Statutes:

• California Business and Professions Code section 6068(e) (duty to preserve client secrets)
• California Evidence Code section 951 (definition of "client")
• 8 U.S.C. sections 1153(a)(6), 1324a (labor-certification preference; employer sanctions)

Cases and authorities:

• People v. Singh, 123 Cal.App. 365 (1932), prior crime as protected confidence
• ABA Model Code of Professional Responsibility, DR 4-101(A); ABA Model Rules, Rule 1.6

Other opinions cited:

• LACBA Formal Opinions 386, 389, 396, 436

See also

• LACBA Ethics Op. 463: Disclosing a Former Client's Securities Fraud to a Current Client
• LACBA Ethics Op. 461: Recouping Office Costs Versus Fee Splitting
• LACBA Ethics Op. 524: Hiring Non-Lawyer Employees and Screening for Confidential Information

Source

• Landing page: https://lacba.org/?pg=ethics-opinions
• Original PDF: https://lacba.org/docDownload/2010978