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. Conflicts of interest
    1. The conflicts of interest provisions in the CCBE state that, “a lawyer may not advise, represent or act on behalf of two or more clients in the same matter if there is a conflict , or a significant risk of conflict, between the interests of those clients.” See CCBE Code Rule 3.2.1
    2. Representation is also forbidden if a lawyer’s representation of a former client could somehow give an “undue advantage to the new client.” See CCBE 3.2.3
    3. There is no waiver option. The client cannot waive his or her right to a conflict-free representation. This is in stark contrast to the common practice in the United States of allowing waivers. See Lauren R. Frank, Note, Ethical Responsibilities and the International Lawyer: Mind the Gaps, 2000 U. Ill. L. Rev. 957, 975.
  2. Competence
    1. ABA Model Rule 1.1 provides that, “competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” See ABA Model Rule 1.1 The comments to Rule 1.1 suggest that, in assessing competence, lawyers should evaluate their experience, ability to study and learn, and feasibility of referring to or consulting with other lawyers. ABA Model Rule 1.1, comment 1.
    2. There is an affirmative duty to know the foreign law if working in a foreign jurisdiction. “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.” Degen v. Steinbrink, 202 A.D. 477 (1st Dep’t 1922), aff'd, 236 N.Y. 669 (1923).
    3. In re Roel, 3 N.Y.2d 224 (1957), app. dismissed, 355 U.S. 604 (1958). (The New York Court of Appeals held that a Mexican lawyer living in New York and advising New York residents and bar members on Mexican law was practicing law in New York.)
    4. In re Roel cited Degen, supra, to buttress the following dictum: “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.” Roel, 3 N.Y.2d at 224; see Frank, Note: Ethical Responsibilities and the International Lawyer: Mind the Gaps, 2000 U. Ill. L. Rev. 957 (2000)
    5. International lawyers will be held to a higher standard in determining competence. They are not dealing with merely a different area of the law, but in many cases, they are working with completely foreign laws and legal systems. Frank, Note: Ethical Responsibilities and the International Lawyer: Mind the Gaps, 2000 U. Ill. L. Rev. 957 (2000)
    6. Standards from United States Case Law: See Wilderman v. Wachtel, 149 Misc. 623 (N.Y. Cty. 1933) (“A lawyer should not be held to a stricter rule in foreign matters than the exercise of due care in recommending a foreign attorney. To do so would subject him to hazards which he is not qualified either to anticipate or to prevent.”) But see Bluestein v. State Bar, 529 P.2d 599 (Cal. 1974) (suspending an attorney from the practice of law for six months for permitting a lawyer not licensed in California to give a client legal advice); Tormo v. Yormark, 398 F. Supp. 1159, 1170 (D.N.J. 1985) (holding that lawyers are under a continuing duty to “exercise care in retaining [other attorneys] to ensure that [they are] competent and trustworthy”).
  3. Unauthorized practice of law: Employing a foreign lawyer may be considered the same as hiring a layperson, so one must be careful that the employment not amount to an unauthorized practice of law. However,
    1. In Jean Reyners v. Belgium, the European Court of Justice held that Treaty of Rome Article 52, which provides for the right of professional establishment, was subject to direct effect, meaning that no additional legislation was necessary to implement it. Implementing a directive regarding the mutual recognition of diplomas was not a prerequisite to the direct effect of Article 52; the “rule on equal treatment” was found effective even in the absence of a directive. The Dutch national who held a Belgian legal diploma and the requisite credentials to become an avocat in Brussels could not be prevented from practicing law in Belgium because he was not a Belgian citizen. Case 2/74, Jean Reyners v. Belgian State, 1974 E.C.R. 631, [1974] 2 C.M.L.R. 305 (1974); Frank, Note: Ethical Responsibilities and the International Lawyer: Mind the Gaps, 2000 U. Ill. L. Rev. 957 (2000).
    2. Similarly holding that the right of professional services had direct effect: The court found that a Dutch legal representative authorized to handle administrative matters in the Netherlands could not be banned from practicing there solely because he moved to Belgium. Case 33/74, Johannes Maria van Binsbergen v. Bestuur van de Bedrijfsvereniging voor de Metaalnijverheid, 1974 E.C.R. 1299, 1306.

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