DUTY OF EB-5 COMPETENCE
by Mark Ivener
What provisions should be in your separate EB-5 fee agreement to help to avoid liability and malpractice?
A fee agreement should clearly cover what services are and are not provided. Carefully explain your scope of services and list excluded matters. Your EB-5 fee agreement is your best avenue of defense against malpractice concerns. Consider the following factors:
1. There is a duty of competence under all ethics codes which states that in handling a case, a lawyer must have "the appropriate knowledge, time, skills and professional qualifications".
A lawyer’s liability exists where he/she undertakes to give comprehensive or specific advice on a subject on which the lawyer lacks competence to handle the case. Thus, if a lawyer has little or no EB-5 experience, liability will exist for no competence to handle the EB-5 case.
2. The lawyer can reduce liability by drafting a careful fee agreement to define precisely the scope of the representation, including what is not being undertaken. The primary goal of a limitation on the stated scope of representation is to protect against a client having a reason to believe or later claiming the the lawyer promised to do some work that the lawyer did not promise to do.
3. If the engagement is to provide consultation and advice solely, state it. If it is to do that and prepare and file the EB-5 petition, state it. Specifically state that attorney is not providing business, tax or accounting advice and, also state that the attorney is not providing a recommendation regarding choosing an EB-5 investment and its commercial viability.
4. The attorney in the EB-5 fee agreement should recommend that the client should consult with:
a. Securities specialist
b. Financial and tax advisor
c. Business attorney
d. Due diligence regional center advisor
If you are to be the immigration attorney, the EB-5 fee agreement should clarify that limited role and specifically not accept responsibility for the selection or quality of other experts. If recommending an expert, give at least 2 choices, otherwise, you open yourself up to a possible negligent referral with attendant liability.