Professional Conduct and Minimizing Risks in EB-5 5 Investor Visa Practice

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1 Professional Conduct and Minimizing Risks in EB-5 5 Investor Visa Practice Robert G. Heiserman (DL), Denver, CO Robert E. Juceam, AILA Past President, New York, NY Peter S. Erly, Burlington, VT Overview of the Panel Conduct of immigration lawyers directly impacts not only the outcomes in individual client immigration cases, but also the rights, benefits, obligations and responsibilities of parties to investment transactions. Missteps can lead to malpractice claims, disciplinary actions, and other civil and criminal violations, and could jeopardize the EB-5 investor visa program. Practice Pointers Best use of engagement letters Risks of ancillary services Insurance Coverage Common Scenarios: opportunities and challenges When Things Go Wrong: Risks, Exposure, and Consequences Malpractice Claims State bar disciplinary process Agency disciplinary process Securities law allegations Civil and criminal law prosecution 1

2 Actual Knowledge 1. Direct and clear awareness (as of a fact or condition) 2. Awareness of such information as would cause a reasonable person to inquire further Black s Law Dictionary (9th ed. 2009) Constructive Knowledge Knowledge that one using reasonable care or diligence should have, and therefore that is attributed by law to a given person Black s Law Dictionary (9th ed. 2009) Indifference Deliberate Indifference The careful preservation of one s ignorance despite awareness of circumstances that would put a reasonable person on notice of a fact essential to a crime Awareness of and disregard for the risk of harm to another person s life, body, or property. Also termed: reckless indifference; conscious avoidance; conscious indifference Black s Law Dictionary (9th ed. 2009) 2

3 Willful Blindness Deliberate avoidance of knowledge of a crime, especially by failing to make a reasonable inquiry about suspected wrongdoing despite being aware that it is highly probable. Black s Law Dictionary (9th ed. 2009) Willful Blindness & Civil Litigation 1. The defendant must subjectively believe that there is a high probability that a fact exists. 2. The defendant must take deliberate actions to avoid learning of that fact. These requirements will give willful blindness an appropriately limited scope that surpasses recklessness and negligence. Under this formulation, a willfully blind defendant is one who takes deliberate actions to avoid confirming a high probability of wrongdoing and who can almost be said to have actually known the critical facts. Global-Tech Appliances, Inc., v. SEB S.A., 131 S. Ct (2011) Justice Anthony Kennedy s s Dissent Willful blindness is not knowledge; and judges should not broaden a legislative proscription by analogy. Global-Tech Appliances v. SEB S.A., 131 S. Ct. 2060, 2072 (2011) (Kennedy, J., dissenting). 3

4 Questions & Answers Ancillary Services: Accepting or Minimizing Risks Creating legal entities Drafting offering documents Drafting business plan Assisting with foreign remittances Client trust account for investment funds Promotion of investment opportunity Advising on suitability of investment Advising on termination of investment Common Scenarios: Preparing and Filing Petitions, and the Pressure to Win Filing petitions and their supporting documents Model Rule 3.3 Candor and integrity of adjudicative process INA 274C(a)(5) document fraud, penalties 18 USC 1001 criminal consequences 18 USC 1341 mail fraud 4

5 Common Scenarios: Referrals to Regional Centers Referral fee from Regional Centers Model Rule 1.7(a)(2) Concurrent conflict of interest if representation would be materially limited by personal interest of the lawyer (as in referral for gain). Informed consent rules may apply. Model Rule 1.5(e) Financial arrangements among attorneys may implicate rules for division of fees with co-counsel Securities laws Recommending Regional Centers (without fees) Common Scenarios: Multiple Clients Hazards of dual representation Representing multiple investors Model Rule 1.7(a) shall not represent a client if the representation involves a concurrent conflict of interest (i.e., representation will be adverse to another client, OR significant risk that representation will be materially limited due to representation of the other) Common Scenarios: Multiple Clients Representing multiple investors (cont.) Model Rule 1.7(b) may represent the client if: Reasonable belief in ability to provide representation to each client Representation is not prohibited by law Representation does not involve claim of one client against the other, and Each affected client gives informed consent, confirmed in writing Model Rule 1.6 confidentiality Representing regional center and investors 5

6 Common Scenarios; Payment of Referral Fees Potential regulatory action for failure to register (federal and state). Potential liabilities for the issuers of securities (and problems for the client). Rescission right Potential material change affecting removal of visa conditions Potential liability of the attorney in connection with the offering. Common Scenarios; Payment of Referral Fees Broker/Dealer Issues Consequences of failure to register as a Broker/Dealer Definition of a Broker/Dealer. Engaged in the business of buying or selling securities for the account of others Common Scenarios; Payment of Referral Fees No specific carveout from broker/dealer definition for services incidental to practice of law. Payment of referral fees. Brumberg Mackey SEC no action letter Means of determining the amount of the referral fee is important 6

7 Advice as to EB-5 5 Investments (whether or not referral fees are paid) Ethical Issues: Competency. Model Rule 1.1 Excessive fees. Model Rule 1.5 Disclosure of indirect interests. Model Rule 1.8 Malpractice Insurance Issues Advice as to EB-5 5 Investments (whether or not referral fees are paid) Investment Advisers are subject to registration and regulatory regimes under federal and state law. Investment Adviser definition: engaged in the business of providing advice as to securities for compensation Since EB-5 interests are securities, advice for compensation about them could constitute provision of investment advice. Advice as to EB-5 5 Investments (whether or not referral fees are paid) Investment advice solely incidental to the practice of law does not require registration. Factors as to whether advice is solely incidental holding oneself out as providing non-legal services is advice in connection with and reasonably related to legal services is compensation to be determined in the same way for non-legal services 7

8 Advice as to EB-5 5 Investments (whether or not referral fees are paid) General advice (not related to specific investments) is OK. Some states have indicated that a fee based on a percentage of assets under management might indicate activity beyond the solely incidental carveout. Advice as to EB-5 5 Investments Sarbanes-Oxley Issues; Rule 205 Applies to practice before the SEC; broader definition than one might think. Supplements state ethics rules but potentially conflicts with state ethics rules, e.g., as to confidentiality. Requires an appropriate response to address evidence of a material violation. Reporting of the material violation required, with a duty to follow up. Insurance Coverage: What Is and What Is Not Covered Review policy for covered professional services See the AILA Specimen Policy 8

9 Common Scenarios: Coping with Volatility and New Developments Volatility in EB-5 Practice Ever-evolving standards for job creation Lawyering in a framework of shifting USCIS standards Complications presented by material change Advising about petitions for removal of conditions Disclosures appropriate to stage/circumstances of representation Resources for the diligent lawyer Best Use of Engagement Letters Specifying scope of legal services Full service quarterback or limited service role player Model Rule 1.1 Competence: legal knowledge, skill, thoroughness and preparation reasonably necessary (CA law: Discipline if intentionally, recklessly, or repeatedly failing to perform legal services with competence) Multiple hazards of unsettled, fast-changing EB-5 law Model Rule 1.2(c) Scope of representation may be limited if reasonable in circumstances, and with informed consent Specifying means of communication Model Rule 1.4 Keeping client informed (with barriers of language and distance, and use of intermediaries) Questions & Answers 9

10 Disclaimer This presentation is for general education purposes only and is not intended as legal advice. Questions about specific immigration matters should be presented in confidence to a qualified immigration lawyer. Special Thanks to the AILA EB-5 5 Conference WiFi Sponsor 10

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