ABA Approves Ethics 20/20 Proposals on Foreign Lawyers, Choice of Conflict Rules

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DALLAS--The ABA House of Delegates Feb. 11 put the organization's official stamp of approval on the second and final round of proposals from its Commission on Ethics 20/20 to update model ethics and bar admissions rules.

Convening here during the bar group's midyear meeting, the delegates adopted, with a few revisions, all the commission's recommendations for updating ABA policies on foreign-licensed lawyers' practice within the United States.

The measures breezed through the House, with only one minor amendment made on the floor and no one speaking in opposition. The delegates voted to:

•  amend Model Rule of Professional Conduct 5.5, which addresses multijurisdictional practice, to permit foreign lawyers to serve as in-house counsel in the United States, so long as they do not give independent advice to their clients about state or U.S. law;

•  change the Model Rule for Registration of In-House Counsel to implement the new authority in amended Rule 5.5; and

•  update the Model Rule on Pro Hac Vice Admission to provide latitude for foreign lawyers to represent their clients in litigation in the United States, subject to numerous safeguards.

 

Another Ethics 20/20 proposal the delegates accepted highlights the potential utility of lawyer-client agreements specifying where, for conflicts of interest purposes, the predominant effect of a representation is expected to occur. In essence, such agreements would allow the lawyer and client to select which jurisdiction's ethics rules on conflicts they wish to be applied in a representation.

The House also approved a resolution aimed at boosting the availability of limited-scope representation as a means of increasing access to justice. The new policy urges lawyers to consider offering unbundled services and calls on state bar associations and courts to help educate lawyers and the public about this option.

In other votes, the delegates endorsed two new uniform acts of interest to lawyers who handle family law matters, amended several parts of the ABA Principles for Juries and Jury Trials, called on defense lawyers to make sure that juvenile defendants are informed about the collateral consequences of their immigration status, and took other action on policy measures of interest to the legal profession.

In-House Counsel

In introducing the Ethics 20/20 Commission's proposals on foreign-licensed lawyers, Maury B. Poscover of Missouri explained that the measures all focus on allowing use of clients' chosen counsel.

The new amendments to Model Rule 5.5 allow foreign lawyers to serve as in-house counsel in the United States, and allow foreign lawyers to provide legal services in a U.S. jurisdiction when authorized to do so by federal or other law. (See box.) Corresponding changes were made in the commentary to the rule.

The amended rule provides that when the foreign in-house lawyer's services require advice on state law or U.S. law, the advice must be based on the advice of a lawyer who is authorized by the jurisdiction to provide it. This language is intended for the protection of clients, Poscover said.

As originally submitted, that aspect of the commission's proposal required the advice to be given in “consultation” with a U.S. lawyer. At the suggestion of the ABA Standing Committee on Professional Discipline, the proposal was modified slightly to align it with the Model Rule for the Licensing and Practice of Foreign Legal Consultants, Poscover said.


Amendments to Model Rule 5.5 on Practice by Foreign-Licensed Lawyers

The text in boldface was added to Model Rule 5.5 by the ABA's adoption of changes recommended by its Ethics 20/20 Commission, as revised before the meeting:  

“(d) A lawyer admitted in another United States jurisdiction or in a foreign jurisdiction, and not disbarred or suspended from practice in any jurisdiction or the equivalent thereof, may provide legal services through an office or other systematic and continuous presence in this jurisdiction that:

“(1) are provided to the lawyer's employer or its organizational affiliates; are not services for which the forum requires pro hac vice admission; and, when performed by a foreign lawyer and requires advice on the law of this or another U.S. jurisdiction or of the United States, such advice shall be based upon the advice of a lawyer who is duly licensed and authorized by the jurisdiction to provide such advice; or

“(2) are services that the lawyer is authorized by federal or other law or rule to provide in this jurisdiction.

(e) For purposes of paragraph (d), the foreign lawyer must be a member in good standing of a recognized legal profession in a foreign jurisdiction, the members of which are admitted to practice as lawyers or counselors at law or the equivalent, and are subject to effective regulation and discipline by a duly constituted professional body or a public authority.


The commission's report accompanying its proposals emphasized that the changes do not authorize the licensing or admission of foreign in-house lawyers. The amendments simply provide “a limited authority to practice for the foreign lawyer's employer,” it said.

Poscover explained that the changes to Rule 5.5 respond to the needs of multinational companies that sometimes prefer to have their foreign counsel advise them in the United States. These amendments accommodate companies' choice of in-house counsel without creating any unreasonable risks to them, he said.

The measure to amend Rule 5.5 and its commentary garnered broad co-sponsorship and support. The Conferences of Chief Justices of state courts voted to support it, and it was co-sponsored by numerous ABA entities as well as the New York State Bar Association.

No one spoke in opposition to the measure. It passed by voice vote with only a few nays.

Registration Rule

The delegates also approved a revision to the Model Rule for Registration of In-House Counsel, which the ABA adopted in 2008. The amendment extends the model rule to foreign-licensed lawyers.

Before the delegates took up this measure, the Ethics 20/20 Commission's proposal was revised slightly to make it consistent with the revisions to Rule 5.5 relating to a foreign lawyer's advice about state or U.S. law.

The amendments to the model rule require foreign lawyers to register when they work in a U.S. jurisdiction as in-house counsel. The lawyers must pay bar dues, pay into the client protection fund, fulfill continuing legal education requirements, notify bar counsel of their presence, and meet other specified requirements.

The amendments provide a way to ensure the accountability of foreign lawyers while serving as in-house counsel in this country, Poscover said in introducing the measure. It does not apply to law firms, he noted.

Pro Hac Vice.

Another commission proposal the House approved amends the Model Rule on Pro Hac Vice Admission to provide judges with guidance about whether to grant limited and temporary authority for foreign lawyers to appear in U.S. courts.

In presenting the proposal to the delegates, Neal R. Sonnett of Florida explained that “more and more litigation implicates foreign issues, and more and more clients want to bring in foreign counsel.”

“This measure has generated a good bit of heat,” but the commission agreed to changes that could help satisfy critics, Sonnett said.

Those revisions altered the proposal to state that a foreign lawyer may be admitted “as a lawyer, advisor or consultant,” and made several changes to beef up protections for clients.

“There is nothing dangerous about this proposal,” and “it is not a nuclear attack on the profession,” he declared.

Sonnett emphasized that the provisions on foreign lawyers are more detailed and protective than for pro hac vice admission of U.S. lawyers. Judges have discretion to admit a foreign lawyer in a defined role as a lawyer, adviser, or consultant, and can limit the lawyer's participation in any way, such as prohibiting the lawyer from taking depositions, he said.

The foreign lawyer must be supervised by a U.S.-licensed lawyer, and the court can require further action from the U.S. lawyer, such as signing all pleadings and being present at all hearings, he noted. Moreover, the U.S. lawyer must independently advise the client on the substantive law of a U.S. jurisdiction and procedural issues in the proceeding.

To emphasize the proposal's broad support, Sonnett took time to name all of the co-sponsors, which include numerous ABA committees and groups. The National Organization of Bar Counsel and the Association of Professional Responsibility Lawyers also endorsed these changes, and at least 15 states already allow foreign lawyers to be admitted pro hac vice, he noted.

Reciprocity?

During the delegates' meeting, Lawrence J. Fox of Pennsylvania moved to amend the pro hac vice measure slightly to add the phrase “lawyer, advisor or consultant” to another part of the model rule. The commission accepted the revision, and the delegates approved it unanimously.

Fox told delegates that in light of the revisions to the commission's pro hac vice proposal, he was convinced that the rule could not be used to press for foreign lawyers to be admitted without all the requirements that apply to U.S. lawyers.

From the floor, Jack K. Whitehead Jr. of Louisiana asked Sonnett if there would be reciprocity with foreign countries so that a foreign lawyer's licensing jurisdiction would admit U.S. lawyers to appear pro hac vice.

Sonnett responded that no reciprocity was involved. “We're talking about things for the benefit of the client, not for the benefit of the lawyers,” he said.

Variations in Conflicts Rules

The other Ethics 20/20 recommendations add new language in a comment to Model Rule 8.5 to flag the potential utility of lawyer-client agreements as a way of dealing with the problem of variations among jurisdictions' ethics rules governing conflicts of interest.

Rule 8.5(b)(2) addresses which rules apply in a disciplinary proceeding. It specifies that a lawyer is not subject to discipline for conduct that conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer's conduct will occur. The new language in Comment [5] states:  

With respect to conflicts of interest, in determining a lawyer's reasonable belief under paragraph (b)(2), a written agreement between the lawyer and client that reasonably specifies a particular jurisdiction as within the scope of that paragraph may be considered if the agreement was obtained with the client's informed consent confirmed in the agreement.  

 

 

 

According to the commission's report to the delegates, these choice of rule agreements may be useful in getting lawyers and clients to talk about which conflicts rules would and should apply in a representation, and they also may provide guidance to disciplinary authorities when they are asked to consider the reasonableness of a lawyer's determination about which jurisdiction's rules apply.

In introducing the measure, former ABA president Tommy Wells, of Alabama, called it a “very modest proposal” that allows lawyers to awaken clients to an issue that may affect their relationship.

These agreements are not to say “this law applies” but rather that “we believe that this is where the predominant effect is,” Wells explained. He noted that the new language provides several safeguards:

• the client's informed consent must be obtained;

• the agreement must be written; and

• the selected jurisdiction must be a reasonable choice.

 

As with the Ethics 20/20 proposals on foreign lawyers, the choice of law measure passed overwhelmingly by voice vote without anyone speaking against it.

Boost for Unbundling Services

Delegates also approved as revised a resolution that “encourages practitioners, when appropriate, to consider limiting the scope of their representation, including the unbundling of legal services, as a means of increasing access to legal services.”

The measure also calls on bar associations, courts, and continuing legal education providers to furnish guidance to lawyers about complying with professional obligations when they provide unbundled services. It also urges bar groups, the judiciary, and practitioners to make the public aware of this option for obtaining legal help.

The delegates reworded the resolution slightly to make clear that it encourages limited scope representation “when appropriate” and is not meant to urge all lawyers to provide unbundled services with respect to all clients.

According to the commission's report, limited scope representation is a cost-effective solution for increasing access to justice, but research shows that many people who could benefit from unbundled services are not aware of this option, and lawyers lack clear guidance on how to provide limited scope representation effectively.

In introducing the measure, H. Ritchie Hollenbaugh, Ohio, said that delivering unbundled services is coming to be viewed as a key way for lower-income people to receive representation.

The purpose of the resolution is to “spread the word” about the potential utility of unbundled services, Hollenbaugh said. He chairs the ABA Standing Committee on the Delivery of Legal Services, which sponsored the resolution.

Hollenbaugh pointed out that Model Rule 1.2(c) provides a framework for lawyers to aid people who are otherwise self-represented. Bar associations can help lawyers develop a business model for delivering unbundled services, he suggested.

Studies indicate, Hollenbaugh said, that those who represent themselves could be much more successful if they have some substantive help on key aspects of their legal matter. Courts also recognize, he added, that they are assisted in many ways if pro se litigants appearing before them have had some substantive help in their case.

By Joan C. Rogers  


Full text of the resolutions and accompanying reports are available at http://www.abanow.org/issue/?midyear-meeting-2013&view=hod.

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