ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK
COMMITTEE ON PROFESSIONAL AND JUDICIAL ETHICS
Year 1986 Ethics Opinions
THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK
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February 26, 1986
The inquirer represents clients
applying to the Immigration and Naturalization Service (INS) for
permanent visas to the United States. He states that, in some
cases, INS approval is "not a matter of discretion,"
but must be granted "if certain conditions are met." He
asks whether in such cases it is ethically proper to provide his
clients with a form guaranteeing a permanent visa and whether he
may advertise that guarantee publicly.
The proposed form, entitled
"Guarantee," states that the attorney "guarantees
that he will obtain a permanent visa to the United States"
for his client based on the latter's representation that (1)
"he/she has not lied to the American Consul or other U.S.
Government official," (2) "he/she has told [the
attorney] the truth," and (3) "conditions as they exist
today will remain the same." The form concludes by stating
that all legal fees will be refunded if the attorney fails to
obtain a permanent visa.
Whether evaluated in terms of
ethical considerations governing advertising and solicitation or
those governing contingent fee arrangements, the proposed
guarantee raises serious ethical issues. The Committee concludes
that the proposed conduct is inconsistent with the Code of
We first consult ethical standards
governing advertising and solicitation. Such considerations are
relevant whether or not the lawyer disseminates the guarantee to
the public, for it is obviously intended to induce potential
clients to retain him. We note, however, that in pursuing this
line of inquiry, it is beyond our jurisdiction to consider the
legality of the proposed conduct under statute, court rules, or
the First Amendment. Cf. Zauderer v. Office of Disciplinary
Counsel, 105 S.Ct. 2265 (1985).
Disciplinary Rule 2-101(A)
prohibits a lawyer from disseminating false, deceptive or
misleading information. This prohibition includes "claims
regarding the quality of the lawyers' legal services" and
"claims that cannot be measured or verified." DR
2-101(B). Read in conjunction with Ethical Considerations 2-19
and 2-20, DR 2-101(A) also counsels complete and clear disclosure
of contingent fee arrangements.
The Committee believes that the
proposed form is inconsistent with DR 2- 101(A). It invites
misunderstanding in three different, but equally important, ways.
First, the "guarantee"
may mislead clients as to the attorney's qualifications or
experience. The term "guarantee" implies expertise.
Hence, it may give the appearance that the lawyer is preeminent
in the field of immigration law. Such a claim cannot be measured
or verified. It is therefore improper under DR 2- 101(A). See
N.Y.State 539 (advertisement setting forth results previously
obtained by the lawyer is misleading).
The term "guarantee" not
only implies expertise, but when coupled with an offer to refund
legal fees suggests that the lawyer's expertise renders virtually
certain a favorable result. The result of any particular case,
however, depends not only upon the lawyer's expertise but also
the merits of the case. Any suggestion that a lawyer's expertise,
rather than the merits of the case, will conclusively determine
the result is inconsistent with the Code's admonition that
special care be taken to avoid misleading statements "[i]n
disclosing information, by advertisements or otherwise, relating
to a lawyer's education, experience or professional
qualifications". EC 2-10. Caution is of particular
importance where, as here, the persons to whom the statements are
addressed are likely to be unsophisticated in legal matters and,
hence, susceptible to misleading interpretations. See N.Y.State
Second, the guarantee may be
misleading because it purports to provide a "money back
guarantee" without disclosing that the client is liable for
costs even if the lawyer is unsuccessful. Disciplinary Rule
5-103(B) prohibits a lawyer from accepting "ultimate legal
responsibility for the cost and expenses occasioned by a
litigation in which he or she represents a client on a
contingency (or any other) basis." N.Y. City 81-56; see
N.Y.State 464, DR 2- 101(C)(4). Here, however, the inquirer's
offer to refund all legal fees if he is unsuccessful suggests a
no-lose proposition: a permanent visa or "your money
That such a "money back
guarantee" poses "the possibility of deception is ...
self-evident." Zauderer v. Office of Disciplinary Counsel,
105 S.Ct. 2265, 2283 (1985). It fails to disclose the client's
potential liability for litigation expenses. We understand that,
to a lawyer, the word "fee" does not encompass costs or
disbursements. The average lay person, however, is unlikely to
understand the word "fee" as a legal term of art. Id.;
N.Y. City 81-56. For precisely these reasons, the Committee found
in N.Y. City 81-56 that the statement, "no fee unless we're
successful," may be misleading in violation of DR 2-101(A).
The language of the proposed guarantee has an equally great
potential to mislead.
Third, the form guarantee may
suggest an appearance of impropriety to the extent it implies
that factors other than the justice of the claim will determine
the result of the client's case. "[E]ven the slightest
ambiguity may tend to mislead the uninformed." N.Y.State
487. To an audience that may lack any familiarity with basic
principles of the American legal system, the proposal may suggest
that the lawyer is able to offer a guarantee because he possesses
some special influence or special expertise in obtaining visas
that is not possessed by other lawyers. Such an implication not
only is misleading, but also may suggest an appearance of
impropriety. Neither the bar nor this particular class of clients
would be served by any intimation that cases are decided other
than on the merits.
Our conclusion that the form
guarantee may be misleading is not altered by the inquirer's
statement that in some cases the INS must approve permanent visa
applications. It is beyond our jurisdiction to assess the legal
validity of that statement. Our analysis assumes approval must be
granted "if certain conditions are met." Contrary to
what the "guarantee" suggests, however, that does not
mean the result in any given case is a foregone conclusion. An
abuse of discretion always remains a possibility, no matter how
clearly defined the standards for awarding a permanent visa.
Contingent Fee Arrangement
The inquirer's form guarantee
raises ethical questions not only because its language may be
misleading, but also because its proposed contingent fee
arrangement may lead to a serious conflict of interest.
As in a typical contingent fee
arrangement, the proposal protects the client from payment if the
lawyer is unsuccessful. Unlike a typical contingent fee case,
however, there is no fund here from which the fee can be paid.
The result of the case is a visa, not a money judgment. Hence,
the fee is to be paid in advance and refunded upon certain
The guarantee expressly provides
for a refund where the lawyer is unsuccessful in obtaining a
permanent visa. It also suggests, however, that even if the
lawyer is unsuccessful, he will not refund the fee if the client
has made false representations. The guarantee states that it is
"based on" the client's representations that he has
told the truth to governmental officials and to the attorney.
Construed in this light, the
guarantee suggests that in a case where the lawyer has not
obtained a visa, he has a financial interest in proving that his
client lied. This conflict strikes at the heart of the
attorney-client relationship, for it weakens the mutual trust and
confidence that the relationship is designed to foster. See Canon
We recognize that every contingent
fee arrangement poses a potential conflict of interest. The Code
expressly permits such arrangements in civil cases despite the
general rule prohibiting a lawyer from acquiring "a
proprietary interest in the cause of action or subject matter of
litigation he is conducting for a client". DR 5-103(A).
Contingent fee agreements in civil cases (or appropriate
administrative agency proceedings) are excepted from this general
rule because they may be the only practical means for some
clients to obtain representation and because "a successful
prosecution of the claim produces a fund out of which the fee can
be paid." EC 2-20. It is significant, however, that the Code
does not permit contingent fees in criminal matters, DR 2-106(C),
"largely on the ground that legal services in criminal cases
do not produce a fund out of which the fee can be paid." EC
Whether or not the lack of a fund
would in itself render a contingent fee agreement unacceptable,
the Committee believes that the conditions attached to the
proposed refund arrangement may raise serious conflict of
interest questions. At the very least, before the lawyer offers
any such arrangement to a client, he must specify the conditions
upon which a refund will or will not be granted. The proposed
arrangement does not clearly specify such conditions. Such a
basic ambiguity in a contingent fee arrangement is inconsistent
with the Code's admonition that a client is to be "fully
informed of all relevant factors" before entering into a
contingent fee contract. EC 2-20.
Independent of the specific points
discussed above, the Committee believes that the proposed
guarantee arrangement taken as a whole cannot but mislead the
particular audience it addresses, many of whom may be new to this
country and untutored in the English language. In such
circumstances, a lawyer owes a special responsibility to avoid
any suggestion of impropriety or any misimpression concerning the
fundamental principles of the American legal system including the
For the reasons stated above, the
Committee answers the inquiries in the negative.