As most readers know, the DOL Substitution Rule issued on May 16, 2007, prohibits attorney fees in certain situations. DOL has ruled that attorneys may not be paid to represent the employer and the alien, unless the employer pays the fees. Alternatively, the attorney may represent the alien and be paid by the alien, but in that case the attorney may not represent the employer. The rule is directed to those situations where attorneys provide dual representation, itself a controversial topic, for the employer and the alien. The rule itself presents many legal issues and places all the parties in jeopardy for possible violation of ethics and law.
If we are going to discuss attorney fees, we should start by defining the services that attorneys provide in the attorney-client relationship. In an article written in 2004 by Hamel Vyas for AILA, “Ethical Issues for Immigration Lawyers,” in 2004, Ms. Vyas defines legal services by stating that a lawyer may be called upon to act as advisor, advocate, counselor, negotiator, intermediary, and evaluator, and that a lawyer’s ultimate goals are to seek improvement of the law, the administration of justice and the quality of service rendered by the legal professional.
The term “Attorney-in-Fact” should not be confused with the term “attorney” or “lawyer”. An attorney-in-fact is a fiduciary for the principal. The law requires an attorney-in-fact to be completely honest with and loyal to the principal in their dealings with each other. There are three broad classes of Agents: (1) Universal agents who hold broad authority to act on behalf of the Principal, e.g. they may hold a power of attorney; (2) General Agents hold a more limited authority to conduct a series of transactions over a continuous period of time; and (3) Special Agents who are authorized to conduct either only a single transaction or a specified series of transactions over a limited period of time.
An attorney-at-law in the United States is a lawyer —someone licensed to practice law in a particular jurisdiction. In most other common-law jurisdictions lawyers are not called attorneys, and the term "attorney" generally refers to either attorneys-in-fact or lawyers from the United States.
The PERM regulations state that the Agent or Attorney, whose name appears in Part C, will be the person to whom written communications will be sent after the original filing. It is clear from these definitions that the person described on the PERM Form 9089 in Part C (Agent or Attorney) is not a lawyer, i.e., not a person acting as an Advocate, but a Special Agent.
The PERM form also has a section (M) “Declaration of Preparer” which provides for the person completing the form or the person who prepared the form. The question is whether this person is providing legal services or merely acting as an agent. The Department of Labor has estimated that it takes approximately one hour to fill out a PERM form. Since the hour would be spent checking addresses, dates, phone numbers, corporate data, and other ministerial/secretarial services, there would be no time left wthin this hour to provide legal services. Electronic sub-accounts are also provided for Agents or Attorneys, who are permitted to fill out the forms electronically. However, as in the written preparation of the forms, if they are filled out by an attorney, the attorney is not acting as a lawyer but rather as an Agent.
Interestingly, the PERM form does not inquire if the parties have a lawyer or have requested legal services of a lawyer with relationship to the PERM application. There is no G-28 for lawyers to make an appearance before the agency, nor does the DOL acknowledge that the parties may be represented by an attorney (as they did in the pre-PERM regulations). One might conclude that the role of lawyer is completely elminated from the application. Indeed, the new rule states that attorneys are not required.
In the same article cited above, Ms. Vyas discusses attorney fees. Factors to be considered are set forth. Most lawyers are familiar with these criteria – novelty and difficulty of the case, amount of time and results obtained, experience of the attorney – but in each instance it must be assumed that these criteria are used to judge the value of attorney fees, and not fees for acting as agent, trustee or attorney in fact.
DOL has stated in the well-inown “Substitution Rule” that the services of an attorney are not required in the PERM process. Let us assume, for example, that the alien’s attorney decides to act as Agent for the Employer by appearing in Part C. And let us also assume that the Attorney or the Attorney’s employee performs the secretarial task of filling out the form
Bearing in mind that a licensed attorney is not required to act as Agent per Part C and only a speedy typist is needed to complete Form 9089 per part M, it appears that these services do not amount to the practice of law. Furthermore, if the participation as agent or secretary is not the practice of law, then this limited participation would not come under the prohibition to pay the services of the attorney.
The next step is to ponder when and if an attorney, in the context of PERM proceedings, may transcent the role of agent and provide legal services and to whom. I will address this issue on another day, but meanwhile invite your comments!