Foreign Legal Consultant Rule Can't Support Discipline.

The New Jersey Supreme Court has found its foreign legal consultant rule poses so many unanswered questions that it can't support professional discipline against a New Jersey lawyer who formed what appeared to be a partnership with an Italian lawyer who was not certified under the rule. Matter of Dalena, 723 A.2d 970 (1999).

Albert F. Dalena practiced in Madison, New Jersey, with the firm name of Dalena, Dalena & DeStefano, but also used a Madison address letterhead of Dalena & Maccallini. Carlo Maccallini was an Italian lawyer who was neither admitted in New Jersey nor had applied for certification under the New Jersey foreign legal consultant, a certification that would have afforded him the right to give advice on Italian while in New Jersey. Nevertheless, Maccallini spent about seven days each year in the Madison office, during which he gave advice on Italian law to clients. A complaint by an American client that she was overcharged by a billing from Dalena & Maccallini at the Madison address ultimately became a disciplinary matter against Dalena.

The New Jersey Disciplinary Review Board found Dalena guilty of assisting Maccalini to engage in the unauthorized practice of law and of using a misleading firm name and letterhead. Fair enough, the New Jersey Supreme Court, said, but it dismissed the charges on the ground that it had not decided what conduct by a New Jersey lawyer while assisting an uncertified, or even a certified, foreign legal consultant violated the rule of professional conduct condemning assisting the unauthorized practice of law.

"The novelty of issues raised in this case is important," stated Justice Coleman, "because at the close of this century, unlike at its beginning, lawyers frequently are called on to participate in or give advice concerning transactions or events in other countries. For that reason, we must rethink what is meant by the practice of law in New Jersey by a foreign legal consultant and the ethical issues arising from the association of a New Jersey attorney with foreign legal consultants."

The court referred these questions to a...