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      Proskauer on International Litigation and Arbitration:
       Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes
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  1. More lawyers practice internationally. As more and more U.S. lawyers and law firms find themselves practicing abroad and dealing with non-U.S. legal forums to resolve disputes, new ethical questions are presented. As non-U.S. jurisdictions have developed their own set of ethical codes to regulate the conduct and practice of lawyers, the question becomes: who’s ethical rules apply and when? This presents a significant challenge to today’s mega firms that have expanded to become multi-national law firms.
  2. Role of Mobility and Technology. With the increase in the mobility of lawyers and the significant increases in technology a lawyer can find himself or herself exposed to the regulations of a number of different ethical jurisdictions.
  3. Unclear landscape with little guidance
    1. Conflict of Interest Rules: See generally Mary C. Daly, The Dichotomy Between Standards and Rules: A New Way of Understanding the Differences in Perceptions of Lawyer Codes of Conduct by U.S. and Foreign Lawyers, 32 Vand. J. Transnat’l L. 1117 (1999); Detlev F. Vagts, The International Legal Profession: A Need for More Governance?, 90 Am. J. Int’l L. 250 (1996).
    2. Confidentiality Rules: See Mark I. Harrison & Mary Gary Davidson, The Ethical Implications of Partnerships and Other Associations Involving American and Foreign Lawyers, 22 Penn St. Int’l L. Rev. 639, 651 (2004).
    3. Solicitation and Advertising Rules: See Daniel Becker, Note, Choice of Law in Online Legal Ethics: Changing a Vague Standard for Attorney Advertising on the Internet, 70 Fordham L. Rev. 2409 (2002); Kristine M. Moriarty, Comment, Law Practice and the Internet: The Ethical Implications That Arise from Multijurisdictional Online Legal Service, 39 Idaho L. Rev. 431 (2003).
  4. Simply following the Model Rules will not work.
    1. Traditionally, ethical regulations had clear boundaries. Today, however, these boundaries blur and lawyers become more mobile and are exposed the regulations of a number of different jurisdictions.

      Practice Tip: One of the main goals of a cross-border attorney should be not only to understand the law, but also to help the client understand the different cultural, social, political, and economic standards that will impact the transaction.

      Practice Tip: In many non-U.S. countries, the legal profession “is not a single profession, but several - including professions which may bisect, overlap, or entirely end-run our own.” France, for example, historically permitted avocats and avoues to handle litigation, while notaires created corporate charters, wills, and other public documents. Conseils juridiques, who were not even required to undergo legal training, gave business planning, structuring, and tax advice. The United Kingdom has a similar division of work and authority: barristers and solicitors belong to “entirely separate professions... [Solicitors] have traditionally viewed their professional function rather narrowly, with the result that they do not handle many elements of an international business practice on the U.S. model.” See Murphy, Jr., A Guide to Foreign Law Source Materials and Foreign Counsel, 19 Int’l Law. 39, 45 (1985) In general, most civil law countries do not recognize a legal distinction between lawyers and notaries, but differences, in fact, exist. See id.

  5. Differing Ethical Codes
    1. Voluntary v. Mandatory: The United States makes its ethical rules binding on lawyers by making the ethical rules the basis for attorney discipline. This is in contrast to other countries where ethics rules may serve as advisory guidelines only or rules to which members of voluntary bar associations agree to adhere.
    2. ABA Model Rules of Professional Conduct. See http://www.abanet.org/cpr/mrpc/mrpc_toc.html
    3. European Community Code of Conduct (“CCBE Code”). See http://www.ccbe.org/
      1. The CCBE has no binding legislative authority per se, but its recommendations are accorded much deference.
      2. Contrary to the ABA approach, which specifically disclaims application to cross-border ethics, European bar associations have specifically addressed the issue of cross-border ethics.
      3. The CCBE’s approach when the specific rules do not address a specific issue is as follows: A lawyer engaged in cross-border practice is “bound to observe the rules of the Bar or Law Society to which he belongs.” See CCBE Rule 1.3.2
    4. Link to Websites for all CCBE members.
    5. International Bar Association’s International Code of Ethics. See http://www.ibanet.org/images/downloads/International_Ethics.pdf
    6. The Union Internationale des Avocats (“UIA”). See http://www.uianet.org/index.jsp

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