Proskauer Rose International Practice Guide Proskauer Rose LLP |
      Proskauer on International Litigation and Arbitration:
       Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes
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  1. Different approaches and risks of each approach
    1. One view is to comply with the ethical standards of the lawyer’s “home” jurisdiction. See, e.g., Laurel S. Terry, An Introduction to the Paris Forum on Transnational Practice for the Legal Profession, 18 Dick. J. Int'l L. 1, 17 (1999).
    2. Least Common Denominator approach. See, e.g., Louise L. Hill, Lawyer Communications on the Internet: Beginning the Millennium with Disparate Standards, 75 Wash. L. Rev. 785, 847-48 (2000) (attorney advertising; “Some lawyers attempt to follow the course of least resistance and comply with the most stringent regulations among the applicable states.”); Francis G.X. Pileggi, Ethics Rules and the Internet, The Metropolitan Corporate Counsel, Oct. 1999, at 17 (same; “a lawyer can probably best minimize his exposure by following the "lowest common denominator' approach of complying with the most restrictive rules of a state wherein he is licensed.”).
  2. International Arbitrations
    1. Whose rules apply? The host v. home jurisdiction dilemma.
    2. “As a matter of New York law and professional ethics, parties to international or interstate arbitration proceedings conducted in New York may be represented in such arbitration proceedings by persons of their own choosing, including lawyers not admitted to practice in New York.” Committee on Professional Responsibility of the Association of the Bar of the City of New York, Recommendation and Report on the Right of Non-New York Lawyers to Represent Parties in International and Interstate Arbitrations Conducted in New York, 49 Record of the Association of the Bar of the City of New York 47 (1991).
    3. See also Va. UPL Op. 92 (1986) (Va. Comm. Legal Ethics and the Unauth. Prac. of Law) (“It is not the unauthorized practice of law for a non-Virginia-licensed attorney to present evidence and argue matters of law before an arbitration panel of the American Arbitration Association in Virginia.”).
  3. Cross-Border Transactions
    1. The escalation in cross-border transactions has intensified client demand for transnational professional services. See Martin Henssler & Laurel S. Terry, Lawyers Without Frontiers - A View from Germany, 19 Dick. J. Int’l L. 269, 272 (2001).
    2. The first question to ask in a cross-border transaction is what are the applicable ethical rules. However, it is not very easy to determine which ethical rules apply because there are no clear rules in determining the applicable ethical standards.
  4. Advising on Foreign Law: Lack of knowledge of foreign state law will not be accepted as a defense to claims of liability on the part of the lawyer for conduct causing injury to a client as a result of that lack of knowledge.
    1. “When counsel who are admitted to the Bar of this State are retained in a matter involving foreign law, they are responsible to the client for the proper conduct of the matter, and may not claim that they are not required to know the law of the foreign State.” In re Roel, 3 N.Y.2d 224 (1957), app. dismissed, 355 U.S. 604 (1958).
    2. “When a lawyer undertakes to prepare papers to be filed in a state foreign to his place of practice, it is his duty, if he has not knowledge of the statutes, to inform himself, for, like any artisan, by undertaking the work, he represents that he is capable of performing it in a skillful manner. Not to do so, and to prepare documents that have no legal potency, by reason of their lack of compliance with simple statutory requirements, is such a negligent discharge of his duty to his client as should render him liable for loss sustained by reason of such negligence.” Degen v. Steinbrink, 202 A.D. 477 (1st Dep’t 1922), aff'd, 236 N.Y. 669 (1923).
    3. The rule of Degen was later adopted by a federal district court in Indiana in Rekeweg v. Federal Mutual Insurance Co., 27 F.R.D. 431, 436 (N.D. Ind. 1961), aff'd, 324 F.2d 150 (7th Cir. 1963), cert. denied, 376 U.S. 943 (1964).
    4. If an attorney is not competent to perform work properly he should not undertake the service. In re Estate of Lohm, 440 Pa. 268 (1970).
    5. “There is nothing uncommon about an attorney licensed in and located in Pennsylvania dealing with cases that arise under the statutes of various other states.” Phila. Ethics Op. 91-36 (1991), 1991 WL 325881.
  5. Responsibility for the Conduct of Foreign Lawyers
    1. Liability for Referral to a Foreign Lawyer: Where referral is to a lawyer not licensed to practice law, Bluestein v. State Bar of California, 529 P.2d 599 (Cal. 1974) held that a California lawyer who referred a client to an unlicensed “of counsel” to advise on Spanish law, aided and abetted in the unlicensed practiced of law.
    2. Where referral is to a lawyer licensed to practice, but not in the jurisdiction. Tormo v. Yormark, 398 F. Supp. 1159 (D.N.J. 1975) held that the referring lawyer’s obligation to investigate the foreign lawyer was met by consulting publications indicating that the foreign lawyer was admitted to practice in the appropriate foreign jurisdiction.

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