The Complex Web of Conflicting Disciplinary Standards in International Litigation

Article excerpt

SUMMARY

I. INTRODUCTION-THE GLOBALIZATION OF LEGAL SERVICES AND THE NEED FORREGULATION .................... 815

II. CULTURE AND THE LEGAL PROFESSION .................... 817

III. REGIONAL APPROACHES TO ETHICAL STANDARDS .................... 818

A. ABA Model Rules of Professional Conduct .................... 819

B. The CCBE Code of Conduct for Lawyers in the European Community ........... 821

IV. POSSIBLE GUIDES FOR THE TRANSNATIONAL LAWYER .................... 823

A. General Agreement on Trade in Services .................... 824

B. Agreement Between the American Bar Association and the Brussels Bars .................... 825

C. Paris Forum on Transnational Practice for the Legal Profession .................... 826

D. Conflict-of-Laws and Other Approaches .................... 826

V. POTENTIAL PITFALLS AND ALTERNATIVE APPROACHES .................... 828

A. Potential Pitfalls .................... 828

B. Venue .................... 829

C. Use of Foreign Lawyers .................... 829

VI. CONCLUSION .................... 830

I. INTRODUCTION-THE GLOBALIZATION OF LEGAL SERVICES AND THE NEED FOR REGULATION

The term "globalization" is frequently applied to numerous activities, and the legal profession is no exception. There has been substantial growth in the number of lawyers working with foreign clients, with foreign lawyers, in foreign legal systems, or in foreign countries.1 Between 1986 and 1993, for instance, the export of U.S. legal services increased from $97 million to $1.453 billion,2 and by 1996, this level reached $1.9 billion.3 Over the same ten-year period, U.S. imports of legal services rose from $40 million to $516 million.4

The escalation in cross-border transactions has intensified client demand for transnational professional services.5 Regulating domestic legal services has become more difficult "because [globalization] increases the complexity of the interactions between lawyers, the legal system, and the authorities responsible for regulating the legal profession."6 This complexity necessitates the international regulation of transnational legal practice.7

Globalization of the legal profession has led to increased scholarship on this issue.8 However, most works on the subject fail to include any substantive discussion of the ethical dilemmas inherent in transnational practice.9 This reality is unfortunate, since corporate globalization will inevitably require the assistance of legal counsel experienced in transnational practice.10 Numerous ethical questions are likely to arise for that lawyer: What steps must a lawyer take in order to practice law in a foreign country? If a lawyer is permitted to practice in a foreign country, which country's disciplinary or ethical rules apply? If a lawyer is not permitted to practice in the foreign country, what alternative steps can the lawyer take to meet the needs of the client?

These are a few of the questions that this paper will address. Part II will address culture and its influence on the legal profession. When confronted with differing sets of disciplinary or ethical rules, there is a need for a system of regulations that deals with such differences. Two such sets of regulations-the ABA's Model Rules of Professional Conduct and the CCBE Code of Conduct for Lawyers in the European Community-are discussed in Part III.A and Part III.B, respectively.11 Part IV discusses the various approaches that could assist a U.S. lawyer practicing abroad.12 Part IV.A discusses the General Agreement on Trades in Services (GATS). Part IV.B examines the Agreement between the American Bar Association and the Brussels Bars. Part IV.C analyzes the Paris Forum on Transnational Practice for the Legal Profession. Finally, Part IV.D is an amalgamation of different approaches, focusing on a conflict-of-laws approach. Part V is a sampling of other issues a U. …