Immigration –Conflict of Interest

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7^th Circuit Court of Appeals

Case Name: John Doe v. Kirstjen M. Nielsen, et al.

Case No.: 17-2040

Officials: RIPPLE, MANION, and SYKES, Circuit Judges.

Focus: Immigration –Conflict of Interest

Plaintiff John Doe seeks lawful permanent residence in the United States under the Employment-Based Immigration: Fifth Preference category (“EB-5”). This visa program requires applicants to demonstrate that they have invested or are currently investing capital in a “new commercial enterprise” within the United States. 8 U.S.C. § 1153(b)(5)(A). To that end, Doe invested $500,000 in Elgin Assisted Living EB-5 Fund, LLC. That entity then loaned funds to Elgin Memory Care, LLC, so it could build and operate a memory care facility in Elgin, Illinois.

This case presents at least two concurrent conflicts of interest, neither of which can be waived by informed client consent. No lawyer could reasonably continue the representation under these circumstances.

Having identified the relevant conflicts of interest, we have the final issue of whether Kameli’s conflicts can be imputed to his associate and Doe’s counsel of record, John Floss. The Illinois rules provide that no lawyer associated in a firm “shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9.” ILL. R. PROF’L CONDUCT R. 1.10(a). This language on its own would bar Floss from representing Doe. An exception arises, however, when “the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.” Id. Kameli’s conflict is plainly personal to him—he alone is in the SEC’s crosshairs—so we must determine whether Kameli’s civil case presents a significant risk of materially limiting Floss’s continued representation of Doe.

We conclude that it does. As discussed, the Kameli Law Group is a small law firm with just three attorneys. Kameli is the only principal, so Floss reports directly to him. This presents an unacceptably high risk of materially limiting Doe’s representation. There is virtually no chance Floss would do anything to upset Kameli’s case. In fact, Floss’s briefing on the conflict-of-interest issue suggests that he would champion Kameli’s cause. The brief goes out of its way to describe the allegations against Kameli as “salacious.” It also lauds the district judge in the SEC’s civil action for “denying the SEC’s motion for a preliminary injunction” against Kameli. None of this is relevant to Doe’s case, and unfortunately, it suggests that Floss’s priority would be to protect Kameli. It is therefore ORDERED that the Kameli Law Group is disqualified from representing Doe in this case. The appeal will be held in abeyance for 60 days to permit Doe to secure substitute counsel.

Ordered

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.