Cross-border legal practice and ethics rule 4-8.5: why greater guidance is needed.

• Author: Jarvis, Robert M.
• Position: Florida

International law often requires its practitioners to deal with laws and policies that are alien in design and seemingly insensible in application.

The Florida Rules of Professional Conduct provide little in the way of guidance for lawyers who engage in transnational work. Although the comment to Rule 4-8.5 acknowledges that "[i]n modern practice lawyers frequently act outside the territorial limits of the jurisdiction in which they are licensed to practice, either in another state or outside the United States," the comment does no more than caution that "[i]n doing so, [such lawyers] remain subject to the governing authority of the jurisdiction in which they are licensed to practice" and that "principles of conflict of laws may apply."(1) Because this standard is both vague and confusing, this article suggests amending Rule 4-8.5 to make the ethical obligations of the cross-border practitioner clearer.

The Need for Guidance

Although the practice of international law has grown substantially since the end of World War II, no global entity currently regulates transnational lawyers.(2) Instead, each nation (and, in countries like the United States, each state) is expected to discipline its own international lawyers.

Given the nature of international law, the decision to have local authorities regulate international lawyers is troubling.(3) Unlike other fields of law, international law often requires its practitioners to deal with laws and policies that are alien in their design and seemingly insensible in their application. At the same time, the international lawyer rarely has--even with his or her own client--the comfort of shared assumptions, background, and language.

The authors of a law review article published several years ago made the foregoing points succinctly by noting that when an American attorney deals with another American attorney, the first attorney

at least has some basis to believe that the [second] attorney is bound by, and acting in accordance with, the basic ethical principles enunciated in the Code and the Rules. However, the same presumptions do not necessarily apply when dealing with a foreign lawyer. The American lawyer is then instantly taken outside the scope of American ethical rules.(4)

The authors went on to identify seven areas in which the lack of a common ethical framework presents heightened difficulties for American lawyers: taking a case, setting a fee, forum shopping, multiple representation of clients, client communications, competent client representation, and settlement.(5) After examining each of these areas, they concluded, somewhat dismally, that "there is nothing `clear' or `easily applied' about the basic principles of an attorney's duties and responsibilities. This is particularly so in a transnational case. An attorney must often make original decisions on ethical matters ...."(6)

These authors are not the only ones to have reached the conclusion that the current rules of ethics hold out little in the way of useful guidance for an international lawyer. Professor Robert E. Lutz of Southwestern University Law School has pointed out that

[t]he giving of advice on foreign law, as well as the selection and use of foreign counsel, are matters occurring more and more frequently in law practice today. . . [Yet d]espite this growth and the professional responsibility complexity in this area, U.S. bar associations have provided only limited, if any, guidance.(7)

Thirty-two pages later, Professor Lutz finished his examination of the problem by writing:

There are great challenges to the U.S. lawyer engaged in international practice to perform competently. However, the model standards governing the professional conduct of U.S. lawyers were written many years ago, when many of the complexities of practice today did not exist. The standards retain a U.S. law practice orientation and largely address the litigation aspects of such practice. Thus, the standards offer little guidance to lawyers engaged in international practice, which is more transaction-oriented and multijurisdictional. If one of the functions of bar associations is to explain...