Innocents abroad: opportunities and challenges for the international legal adviser.

• Author: Caroll, Wayne J.

ABSTRACT

This Article argues that some regulatory authorities have not successfully adapted to the internationalization of the practice of law. First, the Author attempts to define the terms "international legal adviser" and "international legal advice." Next, the Author compares the existing barriers to practice in the United States and the European Union. The Author goes on to outline recent challenges and changes to these barriers to practice, including international efforts such as the WTO and the IBA and local rules in the United States and the European Union. The Author then analyzes the adequacy of existing regulatory regimes with regard to ensuring the competency of professionals, protecting the public from poor or unauthorized representation, and maintaining control over the development of the profession. The Author concludes that, although there has been some progress in opening up legal services, the restrictive approach of a few regimes could undermine the success achieved in this and other service sectors.

1. INTRODUCTION

   The legal profession in most countries developed with a traditional focus on the needs of the average citizen. Only in rare instances did lawyers need much more than knowledge of the local law, as legal norms were applied in a "jurisdictionally mutually exclusive" manner. The concept of overlapping legal systems conflicted with the concepts of the nation-state and sovereignty. Times have changed. Along with the globalization of trade and expanded communication has come the need for advisers to combine local legal paradigms with those from multiple, often international, sources. Lawyers and legal practices have recognized these trends and an internationalization of the practice is already underway. Similarly, educational institutions realize that they need to modify traditional curricula to prepare future lawyers for global practice. But are the regulatory authorities sufficiently adapting to these changes? This Article argues that some are not and looks at one factor in the equation, namely admission requirements and restrictions.

   Part I begins with an attempt to define what is meant by the term "international legal adviser" and "international legal advice." Part II presents a snapshot of the rules and requirements applicable to international legal advising in its various forms, comparing the approach in the United States with that of the European Union. The section focuses on the ability of lawyers to establish more than a transitory practice in another jurisdiction. Part III looks at these same points in their dynamic context, outlining changes and challenges to the barriers to practice. Part IV follows with an analysis of the main approaches regarding admission to the practice of law and their adequacy. Finally, Part V concludes that, despite the progress made in liberalizing cross-border legal services, the lack of progress in some jurisdictions may undermine the basic principles of international trade agreements by creating a precedent for discriminatory treatment of non-nationals, which could spread to other service sectors.

2. SETTING THE STAGE: INTERNATIONAL AND TRANSNATIONAL LEGAL ADVISING

   The demand for international legal advice takes up an increasingly larger part of legal services as a whole. (1) Many, if not most, of the practitioners of international and transnational legal services are in large commercial firms. Over the past few years, many large commercial firms have merged with firms in other countries in an attempt to offer seamless global legal services. Smaller firms have also banded together--more frequently through informal alliances--to extend international legal services to their clients.

   The latest edition of the Martindale-Hubbell directory contains listings of over ten thousand American lawyers who list themselves as practitioners of "international law." (2) The listings of lawyers from the 15 EU Member States contain 4039 practitioners of international law. (3) Given that the terms "international law" and "international lawyer" are often used to describe a number of quite different things, just what is it that these practitioners do? (4) The following categories help to distinguish the roles a lawyer may have to assume in international practice.

   1. Advising Foreign Clients on Domestic Law in the "Domestic Tongue"

      Clients having business in or personal connections to a jurisdiction other than their home jurisdiction(s) often consult lawyers in the other jurisdiction for advice on local law. The only real "international" element in this picture is that the client happens to come from a jurisdiction outside the one in which the advising lawyer generally practices. The actual work of the lawyer changes little. They resort to the usual sources for addressing the particular legal issues, rely on similar situations encountered before with domestic or foreign clients, and advise accordingly in the usual tongue of the local jurisdiction.

      In dealing with foreign clients, the main difference from the standard advising scenario often entails dealing with cultural nuances or dispelling misperceptions foreign clients might have regarding the domestic legal system. (5) Aside from the cultural sensitivity aspect, this type of legal practice is, for the most part, indistinguishable from practice in the normal domestic context. Generally for this type of legal practice, the only prerequisites are those mandated by the jurisdiction for the provision of legal advice, namely admission to the local legal profession. For most jurisdictions, this involves a combination of legal study and passing of a professional examination.

   2. Advising Clients on Domestic Law in a "Foreign Tongue"

      Communication, spoken or written, is the delivery vehicle of all advising services. Language provides the tools for this communication. Each language has an inherent reference to a country or number of countries, which have their own legal systems and specific legal jargon. In providing advice in a foreign language, the adviser by necessity must often equate both factual and legal concepts from two or more legal systems. The adviser might do this directly, based upon his or her own understanding of and familiarity with the foreign legal system and language, or indirectly, by means of supervising and reviewing the work done by legal translators.

      From the client's perspective, the fact that the advice is given in its native or primary tongue reduces the "comprehension risk," from both a linguistic and a legal/conceptual point of view. The legal concepts, albeit from a "foreign,"--those existing or arising under a legal system other than the one of the adviser's normal jurisdiction--legal system, are being analyzed, discussed, and presented outside of their natural conceptual environment but within their and their client's natural linguistic environment. At the end of the day, the client relies upon the information communicated to him in his native or requested language, and the lawyer is potentially liable for the accuracy of this advice.

      Certain practice areas are more likely to be affected by globalization than others. Immigration law has always had an inherent international component to it. Other practice areas, such as divorce and estate planning, take on an added international dimension for those clients with family in other countries. For the multilingual lawyer, practicing in these areas enables him to better serve the needs of the client and sometimes to act as a liaison between cultures, both legal and general. The significance of this type of practice is growing as the size of the local immigrant population in many countries increases. (6) In addition to the normal admission requirements, language ability is an added practical requirement for this type of practice.

   3. Advising Clients on Foreign or International Law in the "Domestic Tongue"

      As barriers to travel, trade, and communication have fallen, clients are now increasingly confronted with foreign legal systems. (7) Here it is useful to make a distinction between "international law"--supranational law--and "foreign law"--the domestic law of a foreign jurisdiction. The former is often subdivided into "public international law," the law of nations, and "private international law," a layer of supranational law applicable to domestic parties resting above domestic law. Both are generally considered part of the respective domestic legal system, (8) "Foreign law," on the other hand, generally refers to the national legislation, case law, and regulations of a foreign jurisdiction. Non-locally admitted lawyers are not permitted to give advice regarding it. Although this law also includes supranational law, including that jurisdiction's interpretation of international law, (9) the term mainly refers to the strictly "homegrown" law. In practice, the line can often become blurred. (10)

   4. Advising Clients on Foreign or International Law in a "Foreign Tongue"

      Although less common in the United States than in Europe and other regions, some legal practitioners also offer advice on legal issues outside of their original jurisdiction of admission and in a language that may not be their native or primary one. Although this is perhaps the narrowest group of legal practitioners, their numbers are growing. (11) These practitioners and their firms emphasize the global nature of their legal practice, implicitly de-emphasizing the importance of geographic boundaries or, for that matter, the related legal systems. (12)

      As in section B above, the relevant regulatory requirement is admission to local practice in the jurisdictions in which the individual or firm advises, and the practical requirement is language ability. Aside from the attendant right to advise on public international law through local admission, the question arises under what authority a locally-admitted lawyer may opine on foreign law. Even if the lawyer is fluent in the language...