Professor McGuinness à Spring 2015
International Business Transactions
Part I. The Transnational Legal Framework
International Legal Environments
Class 1 Transnational Lawyering
Assignment: VDKB 1-20
The Rules on Transnational Practice
NOTE: Lawyers are member of a bar that holds the monopoly to practice law in that particular jurisdiction.
The jurisdiction can be:
– national (France, UK, Bangladesh)
– political subunit such as a region or a state (United States (50 states each with its own bar)
The monopoly for each jurisdiction differs, and applies to different things for example:
– appearing in court to represent client (e.g. barristers in UK)
– giving legal advice
– preparing documents
If you are the member of the bar in one jurisdiction does not mean that you are entitled to practice law in another jurisdiction
See In re Roel, 3 N.Y.2d 224
Appellant foreign lawyer sought review of the judgment of the Appellate Division of the Supreme Court (New York), which affirmed an order in the trial court that adjudged him to be in contempt of court and enjoined him from practicing law within the state, in favor of appellee lawyers association.
The foreign lawyer was a Mexican citizen and lawyer admitted to practice in the courts of that country. Although he was never a citizen of the United States nor a member of the state bar, he maintained offices in the city for a considerable period of time. At his offices, the foreign lawyer advised members of the public on Mexican law, including Mexican divorce law, and he acted as a consultant to members of the bar on Mexican legal matters. He also prepared legal papers and documents, which were required for the institution of divorce actions in Mexico. On the other hand, the foreign lawyer never gave advice as to state law, and he advised his clients to consult a state lawyer. The court affirmed the judgment by holding that the foreign lawyer was in contempt of court because he was not a member of the state bar and he did, indeed, engage in activities that constituted the practice of law pursuant to N.Y. Penal Law § 270. The court found that the foreign lawyer was guilty of practicing law in the state without being licensed to do so, even though he practiced exclusively foreign law.
The court affirmed the judgment, which affirmed an order in the trial court that adjudged the foreign lawyer to be in contempt of court and enjoined him from practicing law within the state, in favor of the lawyers association because he was not a member of the state bar, and he engaged in activities that constituted the practice of law, even though he practiced exclusively foreign law.
Legal Ethics > Unauthorized Practice of Law
HN1 Whether a person gives advice as to state law, federal law, the law of a sister state, or the law of a foreign country, he is giving legal advice. Likewise, when legal documents are prepared for a layman by a person in the business of preparing such documents, that person is practicing law whether the documents be prepared in conformity with the law of the state or any other law. Shepardize – Narrow by this Headnote
HN2 See N.Y. Penal Law § 270. Shepardize – Narrow by this Headnote
Legal Ethics > Client Relations > Attorney Duties to Client > Effective Representation
Legal Ethics > Practice Qualifications
HN3 When counsel who are admitted to the state bar 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. Shepardize – Narrow by this Headnote
Governments > Legislation > Types of Statutes
Legal Ethics > Practice Qualifications
HN4 A state can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, so long as such qualification has a rational connection with the applicant’s fitness or competency to practice law. Shepardize – Narrow by this Headnote
ABA model rules for transnational practice.
Each state bar governed by highest courts of state govern practice of law in each state, who can be admitted, qualifications for admissions, can disbar or discipline lawyers.
Model rules and regulations of lawyers is to ensure regulation of the competence of lawyers to provide legal advice to the public.
Model Rules Regulates
1. Competence (protecting the public)
2. Unauthorized practice of law (protecting the public)
In re Roel (unauthorized practice of law)
1) Advise on foreign law (giving advice to New Yorkers about Mexican divorce law)
2) Doing it in N.Y.C. without N.Y. bar admission
No way to regulate their competence and ensure that the public is protected. But also good for the public to have the Mexican trained lawyer advise them on divorces in Mexico since there is such a great demand for this advice in the 1950s (NY was an At Fault Divorce state until very recently)
How to implement disciplinary authority and reconcile with the rule on competence
Foreign trained lawyers
1. Home jurisdiction oversight “extra territorial”
Mexican regs apply in N.Y.
2. Pro Hac Vice
a. Requires that he works through a N.Y. lawyer on a temporary basis.
3. Permit foreign trained lawyers to si
ce of law
2. foreign law (comparative law) [local counsel]
3. international law à treaties – also CIL
Skills/procedural issues different with transnational deals/transactions:
Cultural issues à language etc.
Documentation of deals à what is required
Legal systems “judicial” à administrative
International adjudicative bodies (WTO, European court of justice, NATO etc)
1. Do any of the reasons given for the attorney-client privilege cease to apply if the attorney is a member of a system other than that asked to give the privilege?
a. Not necessarily, although there are some differences between the extent of the A/C privilege in different jurisdictions, it doesn’t mean that the privilege ceases to apply. Attorneys just need to be mindful of the limits that may exist in other jurisdictions. If no privilege in the home country then the result may be different.
b. Are there other arguments relating to the transnational legal process that could be invoked for or against such a grant?
c. Given the AM&S Ruling, how would an American multinational’s general counsel restructure the means through which the firm obtains legal services?
i. The GC should probably retain local outside counsel in order to preserve the independence of counsel and the full extent of a/c privilege available.
2. What type of relationship would be possible between a lawyer qualified under the laws of Germany only and law firm in a state of the United States?
a. The German lawyer can serve as outside counsel to assist with transnational deal with the US attorney. Also can provide legal services in Germany as part of multi jurisdictional firm
b. Could such a person be a partner?
i. Perhaps in a multi jurisdictional practice,
c. Would it be necessary or appropriate to indicate those facts in some special way?
3. What seems to be the inherent advantages of the international law firm in providing legal services with respect to transnational problems? Could they be achieved inother ways, as by a network of separate firms? In these choices, what is the role of partnership liability issues?