Academic journal article The George Washington International Law Review

Assessing the Recent Revisions to Model Rule 8.5: How Do the Changes Affect U.S. Attorneys Practicing Abroad, Specifically Those Practicing in Japan?

Academic journal article The George Washington International Law Review

Assessing the Recent Revisions to Model Rule 8.5: How Do the Changes Affect U.S. Attorneys Practicing Abroad, Specifically Those Practicing in Japan?

Article excerpt


The legitimacy of the practice of law in the United States is based in large part on professional responsibility and ethics.1 This point is illustrated by a number of facts. An attorney's conduct is expected to adhere to a minimum set of standards irrespective of the context in which the attorney is working.2 To ensure that such standards are met, the vast majority of law students in the United States must take a course in professional responsibility and ethics based on the American Bar Association's (ABA) Model Rules of Professional Conduct (MRPC) before they are eligible to graduate.3 In most states, bar applicants are not eligible for admission unless they receive a certain score on the Multistate Professional Responsibility Examination (MPRE).4 A large majority of states require their attorneys to take Mandatory Continuing Legal Education (MCLE) courses in professional responsibility and ethics throughout the duration of their careers.5

At the same time, for U.S.-licensed attorneys and U.S.-based law firms, international practice has become an increasingly popular option. Professional responsibility training has lagged behind the growth in international practice. In particular, the choice of law provision of the MRPC, Model Rule 8.5, provides guidance for U.S. attorneys as to when they should follow the rules of their home state versus those of another jurisdiction.6 If a U.S. attorney does not receive training in the ethical standards of a foreign jurisdiction in which that attorney intends to practice, how would that U.S. attorney be prepared to apply one set of ethics rules over another? Moreover, if U.S. attorneys are required to receive training in the MRPC before they can practice in the United States, why are there virtually no similar training mechanisms in place for those attorneys who intend to practice abroad?

Prior to August 2002 the MRPC dealt with issues concerning choices of international ethics rules in international contexts in a very elusive manner. In situations involving the choice of professional responsibility rules, the commentary to Model Rule 8.5 specifically noted that the MRPC were not intended to apply to international practice.7 In August 2002 the ABA clarified which ethics rules American attorneys should follow when practicing abroad.8 It is not clear, though, whether the amended version of Model Rule 8.5 properly considers the needs of international practice.

There is often not much time to make an ethical decision. A primary question that a U.S.-licensed attorney may confront is simply put: how and when do I decide to adhere to differing professional responsibility rules? As they stand, the MRPC do not provide the most helpful guidelines for answering such a question. Training in issues relating to international professional responsibility is important for U.S. attorneys who intend to practice internationally.9 A comparison of the Japanese and U.S. approaches to professional responsibility helps to illustrate the importance of the idea of international professional responsibility training.

Japan is a country that has experienced a large influx of U.S. attorneys and firms.10 The way in which the Japanese approach the law and legal training varies greatly from the U.S. approach.11 There are also rigid rules that apply to foreign lawyers who practice in Japan.12 Americans who practice in Japan are thus faced with the complex task of adjusting to practice in a country with a different legal system. More importantly, U.S. attorneys must adjust to the Japanese ethical norms to which they are expected to adhere when practicing in Japan. As such, professional responsibility training is important for U.S. attorneys intending to practice in Japan.

This Note highlights the need for international professional responsibility and ethics training/education for U.S. attorneys who engage in international practice. Section II surveys the differences between the 1993 and later amended versions of MRPC 8. …

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