Monthly Archives: January 2020

Key Ethics Rules to Consider When Your Older Adult Client (or Potential Client) Has Diminished Capacity

Working with clients in various stages of Alzheimer’s or dementia, and with their families and caregivers, poses unique ethical issues for the attorney. Alzheimer’s is the most common cause of dementia, which involves memory loss and other cognitive impairment that affects daily life. When clients suffer from a mental impairment, this generally reduces their capacity to communicate with their lawyer, understand critical issues related to representation, and make informed decisions.

Here are key ethics rules to consider when your older adult client (or potential client) has diminished capacity:

Rule 1.1, Competence

A lawyer shall provide competent representation, i.e. legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

Rule 1.1, Comment 2 states, “Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge.”(emphasis added).

When working with a client with diminished capacity, lawyers not only need to know the nuts and bolt of their practice area. They also have to apply the legal standards of diminished capacity, which include ethical guidelines for assessing client capacity, as outlined in Rule 1.14, and standards of capacity for specific legal transactions.

A finding of incapacity could nullify or present obstacles in transactions such as wills, contracts and estate plans.

For example, at the time of making a will, the testator must understand the nature and extent of his property and the claims of others on his bounty, and be able to connect them sufficiently to form a rational plan for disposition of property. This is known as Testamentary Capacity.

When entering a contract, the person needs to understand the nature and effect of the act and the business being transacted. If the act of business being transacted is highly complicated, a higher level of understanding is usually needed. This is called Contractual Capacity.

Rule 1.2, Scope of Representation and Allocation of Authority Between Client and Lawyer

A lawyer has a duty to abide by the client’s decisions concerning the objectives or goals of representation and reasonably consult with the client about the means to accomplish such objectives. When a client lacks capacity to fully participate in the representation, this creates multiple ethical issues.

Rule 1.2, Comment 1 states the client has ultimate authority to determine the purpose and objectives of the representation. The means by which to accomplish objectives is generally left to counsel, after consultation with the client. Comment 2 adds that when there is a disagreement, counsel must attempt a mutually agreeable resolution. “If such efforts are unavailing and the lawyer has a fundamental disagreement with the client, the lawyer may withdraw from the representation. See Rule 1.16(b)(4).”

Rule 1.4, Communication

Rule 1.14(a)(1) states the lawyer shall promptly inform client of any decision or circumstance with respect to which client’s informed consent is required.

Rule 1.4(a)(2) requires the lawyer to reasonably consult with client about the means by which the client’s objectives are to be accomplished.

Rule 1.4(b) notes the lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding representation.

Comment 6 states, “Ordinarily, the information to be provided is that appropriate for a client who is a comprehending and responsible adult.” But “this standard may be impracticable” when the client suffers from diminished capacity.

In any event, the lawyer should confirm the client understands key elements of legal action and available options, and the client has made a choice and understands the consequences.

Rule 1.7, Conflict of Interest: Current Clients

The lawyer needs to watch out for conflicts of interest, particular in joint representation of married couples in wills and trusts formation, estate planning, contracts and other similar matters.

The lawyer shall not represent a client if representation involves a concurrent conflict of interest.

Concurrent conflict of interest exists if representation will be:

(1) directly adverse to another client, or

(2) materially limited by responsibilities to another client, former client, or a third person, or from lawyer’s own interests.

Comment 1 states that loyalty and independent judgment are essential in attorney-client relationship. Comment 2 explains that to resolve a conflict of interest problem, the attorney must clearly identify the client(s) and decide whether representation may continue and, if so, consult with affected client(s) and obtain informed consent in writing.

Rule 1.16, Declining or Terminating Representation

Rule 1.16(b)(1) states the attorney may withdraw from representing a client if it can be “accomplished without material adverse effect on the interests of the client.”

Rule 1.16(c) states the lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating representation. A tribunal may order the lawyer to continue representation despite good cause for termination.

Comment 1 explains the lawyer should not accept representation in a matter unless it can be performed competently, promptly, without improper conflict of interest and to completion. In effect, if the lawyer reasonably believes the person lacks capacity to make informed decisions, he may decline representation without necessarily seeking reasonable protective action.

Comment 6 adds that before representation is withdrawn, the lawyer should make special effort to help the client — with severely diminished capacity — consider the consequences of a discharge and may take reasonably necessary protective action as provided in Rule 1.14.

Rule 1.14, Client with Diminished Capacity

Rule 1.14(a) states the lawyer must maintain a normal client-lawyer relationship, as far as reasonably possible, even with the client has diminished capacity.

Comment 1 notes, “The normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters.” It adds that when the client “suffers from a diminished mental capacity, however, maintaining the ordinary client-lawyer relationship may not be possible in all respects.”

Rule 1.14(b) allows the lawyer to take reasonable protection action when the lawyer reasonably believes the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken, and cannot adequately act in his/her own interest.

Comment 5 specifies that protective action includes consulting with family members; using a reconsideration period to permit clarification or improved circumstances; using durable powers of attorney; and consulting with support groups, professional services, adult-protective agencies, or other persons and entities available to protect the client.

In certain situations, the lawyer may seek guidance from an appropriate diagnostician. Protective action may involve seeking assistance from third parties in determining whether to seek the appointment of a guardian ad litem, conservator or guardian.

Rule 1.14(c) states the lawyer may reveal confidential information (protected by Rule 1.6) to the extent reasonably necessary to protect the client’s interest, when taking reasonably necessary protective action.

Comment 6 states, “In determining the extent of the client’s diminished capacity, the lawyer should consider and balance such factors as: 1) the client’s ability to articulate reasoning leading to a decision; 2) variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and 3) the consistency of a decision with the known long-term commitments and values of the client.

Undue influence from a family member, caregiver or other third party should not be confused with diminished capacity, although the two are sometimes intertwined. Through manipulation or isolation, a stronger person might convince the weaker person to do something he would not otherwise do without the undue influence. This is a major factor for financial exploitation that the lawyer needs to consider when working with elderly clients with diminished capacity.

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Most lawyers – especially without special training — will find it very difficult to determine whether a client with diminished capacity can still make “adequately considered decisions.” Rule 1.14(b) subjects the lawyer to the standard of reasonableness and requires only that the lawyer “reasonably believes” the client has diminished capacity, which may be inferred from the circumstances.

As part of the normal attorney-client relationship, lawyers may not substitute their opinion or judgment for that of their clients, even when the client has diminished capacity due to mental impairment (e.g. Alzheimer’s or dementia). In appropriate situations, lawyers may consult with a medical or mental health diagnostician or other professional for help in evaluating a client’s capacity to act in his or her own interest. They may disclose only enough information reasonably necessary to take contemplated protective action in cases where the client is at risk of substantial harm.

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NOTE: On Monday, February 3, 2020, I will co-present the ethics session at Minnesota CLE’s live in-person seminar, A Lawyer’s Guide to Alzheimer’s and Dementia. Wills & Estate Planning attorney, Stuart Bear of Chestnut Cambronne P.A., and I will discuss Ethical Issues for Attorneys: How to Avoid the Pitfalls of Competency, Conflicts, and More.

To register or learn more, click HERE.  

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This article provides general information only. Do not consider it as legal advice for any individual case or situation.  

The author, Dyan Williams, is admitted to the Minnesota state bar and focuses on the Minnesota Rules of Professional Conduct, which are subject to change. Check your individual state rules of professional conduct, regulations, ethics opinions and case precedents, instead of relying on this article for specific guidance. 

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U.S. Consulate Rescinds INA 212(a)(6)(C)(i) Charge and Grants B1/B2 Visa: A True Success Story

Within 3 months of receiving our Motion to Reconsider and Rescind Inadmissibility Finding Under INA 212(a)(6)(C)(i) with Request for B1/B2 Visitor Visa, the U.S. Consulate granted the visa to our client without requiring a 212(d)(3) waiver of inadmissibility. After he had been denied the visitor visa on three separate occasions over a 12-year period, the applicant sought our counsel to overcome the 212(a)(6)(C)(i) bar and get the visa.

The applicant’s visa problems began after he was denied re-entry by U.S. Customs as a visitor. At the time, he had been attending high school in the United States on a B1/B2 visitor visa. Unique circumstances led him to believe he did not need a student visa as long as he did not overstay his authorized visits.

In his last request for entry, he was specifically asked about the purpose of his visit. He admitted he had been attending high school in the United States and was seeking to complete his studies. The U.S. Customs informed him he needed a student visa and could not attend school during a B1/B2 visit. Although he was allowed to withdraw his application for admission, his visa was cancelled.

Three years later, the applicant sought a visitor visa for temporary recreational stays in the United States. The U.S. Embassy denied his first two requests under INA 214(b), i.e. failure to overcome the presumption of immigrant intent to be eligible for a visitor visa.

Ten years later, the applicant sought the visitor visa again. After placing the case in administrative processing, the U.S. Embassy issued a visa refusal notice under INA 212(a)(6)(C)(i)(fraud or willful misrepresentation of material fact to obtain a U.S. immigration benefit).

The factual basis for the section 212(a)(6)(C)(i) charge was not specified. But it was reasonable to assume it stemmed from his attending high school in the U.S. while in B1/B2 visitor status.

When a person engages in conduct that is inconsistent with the terms and conditions of his visa (especially within 90 days of his admission), the U.S. consular officer may presume he willfully misrepresented the true purpose of the visit. The applicant then has to rebut the presumption of misrepresentation.

In this case, the applicant violated the terms of his visitor visa by attending school. But, at the time, he was a minor (under age 18) and relied heavily on his parents to make decisions on his behalf.

The family had been in the United States on another type of visa that allowed school attendance and a longer stay. Based on discussions with the school district, the parents mistakenly assumed their son could continue his studies on a visitor visa, as long as he departed the United States every six months, before the expiration date of each authorized visit.

To deal with the INA 212(a)(6)(C)(i) finding, the applicant contacted me for a Skype consultation. I confirmed his ultimate objective was to receive a B1/B2 visa for business trips and recreational visits, including spending time with his U.S. citizen brother.

Prior to entering a representation agreement, we discussed whether to (a) request the U.S. Embassy vacate the INA 212(a)(6)(C)(i) finding or (b) apply for a 212(d)(3) waiver of inadmissibility. Given his young age at the time he attended school on the B1/B2 visa and the Record of Sworn Statement reflecting he declared this fact to U.S. Customs in his last request for entry, both options were viable. Ultimately, he chose option (a).

I advised the client on the information and documents to present to show he did not commit fraud or willfully misrepresent the purpose of his visit each time he was admitted to the United States on the B1/B2 visa, and then attended school. Furthermore, I counseled him on how to demonstrate strong ties to his residence abroad to overcome the presumption of immigrant intent under INA 214(b), which is necessary to qualify for the visitor visa itself.

In addition, I wrote a legal memorandum explaining the factual grounds and legal basis for the Motion to Reconsider and Rescind Inadmissibility Finding Under INA 212(a)(6)(C)(i) with Request for B1/B2 Visitor Visa. I also prepared the client for what to expect at the visa interview and how to best present his case.

At the B1/B2 visa interview, the U.S. Consulate accepted the legal memorandum and the written testimonies of the applicant and his U.S. citizen brother in support of the Motion to Reconsider. The U.S. consular officer noted the case was complicated and had to be placed in administrative processing.

Three months later, the U.S. Consulate issued the B1/B2 visitor visa and made it valid for 10 years. The section 212(a)(6)(C)(i) bar was lifted, so there was no need for a 212(d)(3) waiver. A “clearance received” annotation was placed on the visa to further indicate his case was resolved.

After three prior failed attempts in which he did not have counsel, the applicant finally received the B1/B2 visa with our representation.

This is a true success story.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
info@dyanwilliamslaw.com

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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U.S. Embassy Vacates INA 212(a)(6)(C)(i) Charge and Issues Immigrant Visa: A True Success Story

After initially refusing our request to vacate the INA 212(a)(6)(C)(i) charge against our client, the U.S. Embassy reconsidered its decision and issued the Immigrant Visa. Persistent follow-ups led to the applicant being cleared of the inadmissibility bar and receiving the visa for admission as a permanent resident. No Form I-601 waiver was needed because the Embassy dislodged the INA 212(a)(6)(C)(i) finding it made in error.

Two years before attending his Immigrant Visa interview, the applicant had sought a K-1 fiance visa at the U.S. Embassy, based on his then-engagement to a U.S. citizen. At the K-1 visa interview, the U.S. consular officer determined his relationship with the K-1 petitioner was not genuine, but entered into solely for U.S. immigration benefits.

The Embassy returned the approved Form I-129F petition to USCIS for further review and revocation. Instead of issuing a Notice of Intent to Revoke, USCIS issued a termination notice almost 6 months later stating the 4-month validity period on the Form I-129F approval notice had expired, but the U.S. citizen fiance may file a new petition for the applicant. By that point, they had ended their relationship and called off the engagement. No further evidence was submitted to prove the bona fide nature of the relationship.

Prior to the K-1 visa application, our client’s mother had filed a Form I-130 immigrant petition for him. USCIS approved the petition within five months, but he had to wait several years for the priority date to become current so he could apply for an Immigrant Visa.

At his Immigrant Visa Interview, he received a refusal worksheet charging him with INA 212(a)(6)(C)(i), as an applicant who sought to procure a visa by fraud or willful misrepresentation of a material fact. The Embassy noted that in adjudicating his K-1 fiance visa application, the relationship was found to not be credible.

Following the Immigrant Visa refusal due to fraud/willful misrepresentation, a close relative of the applicant contacted me for a consultation. After confirming the relationship with the K-1 petitioner was genuine but just did not work out, I agreed to represent the applicant and his mother (the Form I-130 petitioner).

I explained the applicant had the option to file a Form I-601 waiver application, as instructed by the U.S. Embassy. To get this waiver, he needed to prove to USCIS that his mother would suffer extreme hardships if he were denied admission to the United States. The long processing time and the high evidentiary standards made this a challenging path to take. The I-601 filing fee of $930 was also a factor to consider.

Because the applicant had proof of a bona fide relationship with the K-1 petitioner that was not previously submitted to USCIS or to the U.S. Consulate — and USCIS never revoked the Form I-129F approval but instead issued a termination notice — I counseled the applicant on another option, i.e. file a Motion to Reconsider and Rescind Inadmissibility Finding Under INA 212(a)(6)(C)(i) with Request for Immigrant Visa directly with the U.S. Embassy. The applicant and his family decided to go with the Motion instead of the I-601 application.

It took several months for the applicant and his family to gather all the written testimonies and documents I had recommended they provide to support the Motion to Reconsider. With this evidence and my legal memorandum arguing how the INA 212(a)(6)(C)(i) charge was made in error, I filed a request with the U.S. Embassy to reconsider the inadmissibility finding and grant the Immigrant Visa.

Upon its first review of our Motion to Reconsider and Rescind Inadmissibility Finding, the Embassy sent a reply within a week, in which it stated the applicant made a material misrepresentation in a prior K-1 visa application and was permanently ineligible to receive a visa. It added it would not accept any further evidence or appeal regarding the visa application and instructed the applicant to file for an I-601 waiver of inadmissibility.

Two weeks later, with the applicant’s consent, I submitted a Request for Supervisory Review to the U.S. Embassy, asking it to confirm whether the Motion to Reconsider was duly reviewed and highlighting the errors in the inadmissibility finding. The Embassy replied it was reviewing my inquiry and there was no guarantee on how long it would take to get a response. It again instructed the applicant to file for an I-601 waiver.

After months of waiting and sending follow-up inquiries, we finally received a response from the U.S. Embassy stating it had completed a supervisory review to reconsider this case and there has been no change to the original officer’s adjudication. It noted the applicant may file for a waiver.

A few weeks later, I filed a Request for Advisory Opinion with the Visa Office (U.S.Department of State’s Office of Legal Affairs in the Directorate of Visa Services). In particular, I asked them to review the legal question regarding whether the U.S. Embassy properly applied INA 212(a)(6)(C)(i) when it denied the Immigrant Visa in this case. I provided them with a copy of the Motion to Reconsider, including the legal memorandum and supporting evidence. The Visa Office responded it had followed up on my inquiry and the case was under review.

Several months later, the Visa Office sent an update that the U.S. Embassy provided instructions to the applicant to proceed with his Immigrant Visa application. The Embassy instructed him to submit an updated Form I-864, Affidavit of Support, and financial support documents. It further requested he complete a DNA test to verify the biological relationship with his mother (the Form I-130 petitioner).

After complying with the U.S. Embassy’s instructions, the applicant finally received his Immigrant Visa. He was admitted to the United States as a lawful permanent resident to join his mother and other close relatives who were eagerly waiting for this reunion.

This is a true success story.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
info@dyanwilliamslaw.com

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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U.S. Consulate Lifts INA 212(a)(6)(C)(i) Bar and Grants Immigrant Visa: A True Success Story

Within 21 days of receiving our Request for Supervisory Review of Immigrant Visa Refusal and Renewed Motion to Reconsider and Rescind Inadmissibility Finding under INA 212(a)(6)(C)(i), the U.S. Consulate removed the lifetime bar and instructed our client to continue the immigrant visa process. Ultimately, he received his Immigrant Visa after the new police certificate and updated proof of his U.S. citizen petitioner’s U.S. domicile and financial support were provided. Because the U.S. Consulate agreed to lift the fraud charge, no Form I-601, Application for Waiver of Inadmissibility, was required.

Born stateless, the applicant used to hold a refugee travel document that contained a visitor visa when he was a child. After he acquired citizenship in a country where he was not born, the applicant used the new passport to obtain a second visitor visa and traveled to the United States for a temporary recreational stay.

Despite being married to a U.S. citizen, he complied with the terms of his visitor visa and did not overstay the authorized period or apply for a marriage-based green card within the United States. Based on the approved Form I-130 immigrant petition filed by his U.S. citizen wife, he sought to become a permanent resident through an Immigrant Visa application at the U.S. Consulate overseas.

At the initial Immigrant Visa interview, the applicant presented his passport for visa stamping. About two months later, the U.S. Consulate conducted a re-interview in which it asked about the process he used to acquire the citizenship and obtain the passport. He explained the legal channels he used to get both. Nonetheless, the U.S. Consulate charged him with section 212(a)(6)(C)(i)(fraud/willful misrepresentation of material fact to gain a U.S. immigration benefit), upon noting it was unable to verify his acquired citizenship or the authenticity of the passport when it contacted the government authorities.

The U.S. Consulate instructed him to file a Form I-601, Application for Waiver of Inadmissibility, to be excused from the inadmissibility charge. A section 212(a)(6)(C)(i) finding prohibits applicants from receiving an Immigrant Visa without first getting an I-601 approval from USCIS.

Two months after the visa refusal, the applicant contacted me for the first time to discuss his options. In our Skype (video) consultation, I explained that one solution was to file a Form I-601 application, as the U.S. Consulate instructed. To receive the waiver, he would need to prove the extreme hardships his U.S. citizen wife would suffer if he is denied entry to the United States as a permanent resident. I noted there is never any guarantee the waiver will be granted due to the high standard of proof and the discretion involved in the decision-making.

I further pointed out that if he did not commit fraud or willfully misrepresent material facts to gain the prior B1/B2 visitor visa, the Immigrant Visa, or any other U.S. immigration benefit, he could file a Motion to Reconsider and Rescind Inadmissibility Finding with the U.S. Consulate. If such a motion is granted and the section 212(a)(6)(C)(i) bar is lifted, the I-601 waiver is not required for the visa to be issued.

The client opted to go with the request to reconsider the inadmissibility charge. After we entered into a representation agreement, I counseled him on the information and documents he needed to present to show he did not engage in fraud or willfully misrepresent material facts to receive any U.S. immigration benefit.

To support the Motion to Reconsider, I prepared a legal memorandum describing how the applicant used proper channels to obtain the passport and why the submission of this passport to the U.S. Consulate was actually immaterial to his eligibility for the Immigrant Visa, as well as the prior visitor visas he received.

Five days after receiving the Motion to Reconsider, the U.S. Consulate issued a response stating the section 212(a)(6)(C)(i) bar would remain and the applicant needed to file for an I-601 waiver. The Consulate noted the applicant had no concrete evidence to support his explanation on how he acquired the citizenship. The Consulate added that during its checks with the government authorities, it was determined beyond reasonable doubt the applicant misrepresented his case and deliberately provided false information and documents to receive an immigration benefit. They added he did not rescind his false statements when given the opportunity to do so.

In the Request for Supervisory Review and Renewed Motion to Reconsider and Rescind Inadmissibility Finding, I stressed the important points the U.S. Consulate missed when it issued the response affirming the section 212(a)(6)(C)(i) charge.

In reply to this Request and Renewed Motion, the U.S. Consulate sent a response 21 days later stating the section 212(a)(6)(C)(i) charge had been lifted. Five months later — following the completion of administrative processing — my client received the Immigrant Visa to join his wife in the United States, without needing to file for and obtain an I-601 waiver.

This is a true success story.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
info@dyanwilliamslaw.com

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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