Can an immigration firm work with a nonlawyer foreign migration agent who refers clients and handles communication and translation, charge the client for those nonlegal services, and what must be disclosed?
NY State Bar Ethics Opinion 1116: Working with a nonlawyer foreign migration agent
Short answer: A law firm may engage a nonlawyer foreign migration agent who hires the lawyer for the client and assists with communication, document gathering, and translation, provided the relationship is not exclusive, the agent does not interfere with the lawyer-client relationship, the client consents to the conflict created by the referral relationship, and the lawyer pays nothing for referrals. The lawyer must bill legal fees and the agent's nonlegal charges separately and disclose the agent's identity and the amount charged.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
The inquirer is an immigration firm practicing under the EB-5 investor visa program. Foreign investors often work through a foreign migration agent (FMA) in their home country who refers them to U.S. immigration lawyers, helps gather and translate financial documents, serves as the contact point with the client, and may also market Regional Center projects and earn fees from the Regional Center. The firm proposes to engage the FMA to perform the document and communication work that would otherwise be done by an accounting firm or in-house staff, paying it the same fixed fee, plus an added fee to liaise with the client. The firm asks whether it may charge the client for these nonlegal services, whether it may bundle them into a single fee, and whether it must disclose the FMA's identity and compensation.
The committee addresses several issues. On nonlawyer assistants, lawyers may use outside nonlawyers to help deliver legal services (Rule 5.3, Cmt. [3]), and using a communication agent can be required for effective communication (Rule 1.4; N.Y. State 1053), but the lawyer must ensure the agent facilitates rather than controls client communication and must supervise the agent (Rule 5.3). On billing, the lawyer may not fold the nonlegal expense into the legal fee; Rule 1.5(b) requires communicating the basis of fees and expenses, so the FMA's charges must be disclosed in advance and listed separately as expenses, billed at the actual amount absent client consent and not excessive (Rule 1.5(a)). On disclosure, Rule 1.4 governs; here the committee concludes the firm must disclose both the FMA's identity and its compensation, because the FMA has significant client contact, the client must be able to judge whether charges are duplicative, the FMA has potential conflicts the client must assess, and the client must be able to detect any disguised referral payment. Hiding the FMA's role or extra payments could even make the bill fraudulent under Rule 1.5(d)(3).
The committee then summarizes the recurring concerns when lawyers join with nonlawyers. The relationship may not be exclusive (Rule 5.8 bars an exclusive contractual tie with a nonlegal professional; only non-exclusive reciprocal referral arrangements are allowed, and the lawyer must beware a tie that is non-exclusive in name only). The lawyer must preserve independent judgment (Rules 2.1, 5.4(a)), because an FMA paid on closing has an interest in the deal; the resulting Rule 1.7(a)(2) personal conflict is consentable, requiring the lawyer's reasonable belief in competent, diligent representation and the client's informed written consent (the lawyer may not rely on the engagement-letter agency clause or let the FMA obtain consent). The arrangement is not improper fee-sharing under Rule 5.4(a) if the FMA's fee is unrelated to the legal fee and the lawyer has not cut its own fee to cover the FMA; it is not a prohibited referral payment under Rule 7.2 if hiring the FMA is not a condition of the referral and the pay does not exceed the reasonable value of the services. The lawyer must supervise the FMA (Rule 5.3(b)) and ensure the client understands the scope of the representation, including advice on whether the proposed investment meets the EB-5 criteria.
In practice
Under this opinion, a New York immigration firm may build its practice around nonlawyer foreign migration agents only within strict limits. The relationship must be non-exclusive, the agent must not control the lawyer-client relationship, the client must give informed written consent to the personal conflict created by the firm's reliance on the agent for referrals, and the lawyer must pay the agent nothing for the referrals themselves. Billing must separate legal fees from the agent's nonlegal charges, which are passed through as actual-cost expenses, and the firm must disclose the agent's identity and what it is paid so the client can spot duplicative charges, assess the agent's conflicts, and detect any hidden referral payment. The lawyer remains responsible for supervising the agent and for advising the client directly on whether the investment satisfies the visa criteria.
Common questions
Q: Can a law firm charge the client for a nonlawyer's translation and document work?
A: Yes, as a separately listed expense billed at the actual amount (absent consent) and not excessive, but it may not be bundled into the legal fee, and the basis must be communicated to the client under Rule 1.5(b) (Opinion 1116 ¶¶ 18-19).
Q: Must the firm tell the client who the nonlawyer agent is and how much it is paid?
A: Yes. Because the agent has significant client contact and potential conflicts, the lawyer must disclose the agent's identity and compensation so the client can judge whether the charges are reasonable, non-duplicative, and not a hidden referral fee (¶¶ 23-28).
Q: Does relying on a referring migration agent create a conflict?
A: Yes, a Rule 1.7(a)(2) personal-interest conflict, because the agent's stake in closing may pressure the lawyer's judgment. It is consentable: the lawyer must reasonably believe competent, diligent representation is possible and obtain the client's informed written consent (¶¶ 33-37).
Q: Is paying the agent improper fee sharing or a referral fee?
A: Not if the agent's pay is unrelated to the legal fee and the lawyer has not cut its own fee to cover it (no improper fee sharing under Rule 5.4(a)), and not if hiring the agent is not a condition of the referral and the pay matches the reasonable value of the services (no referral fee under Rule 7.2) (¶¶ 39-40).
Background and rules framework
The opinion applies a cluster of Rules: Rule 1.4 (Model Rule 1.4) on client communication, Rule 1.5 (Model Rule 1.5) on fees, expenses, and fraudulent billing, Rule 1.7 (Model Rule 1.7) on personal-interest conflicts, Rule 2.1 (Model Rule 2.1) on independent judgment, Rule 5.3 (Model Rule 5.3) on supervising nonlawyers, Rule 5.4(a) (Model Rule 5.4) on fee sharing, Rule 7.2 (Model Rule 7.2) on payment for referrals, and New York's Rule 5.8 on contractual relationships with nonlegal professionals.
Citations and references
Rules of Professional Conduct:
- New York Rule 1.4 (Model Rule 1.4): communication; disclosure of the agent's role
- New York Rule 1.5(a), (b), (d)(3) (Model Rule 1.5): fees, expenses, fraudulent billing
- New York Rule 1.7(a)(2), (b) (Model Rule 1.7): personal-interest conflict; consent
- New York Rules 2.1, 5.3, 5.4(a), 7.2 (Model Rules 2.1, 5.3, 5.4, 7.2): independence, supervision, fee sharing, referrals
- New York Rule 5.8(a), (c): contractual relationships with nonlegal professionals
Cases:
- Matter of Lefkowitz, 47 A.D.3d 326 (1st Dep't 2007): immigration lawyer dependent on an agent for referrals, conflict undisclosed
Other opinions cited:
- N.Y. State 1068 (2015); 992 (2013); 976 (2013); 885 (2011): lawyer-nonlawyer service arrangements and fee sharing
- N.Y. State 1053 (2015): using a communication agent; N.Y. State 942 (2012): payment for referrals
See also
- NY State Bar Op. 1131: Paying a for-profit lead generation service
- NY State Bar Op. 1135: Solicitation by a lawyer who is also a CPA
- NY State Bar Op. 1155: Dual practice as lawyer and financial planner
Source
- Landing page: https://nysba.org/ethics-opinion-1116/