CASES AND MATERIALS

Issues in

James Moliterno
George Harris
 West’s Law School
Advisory Board

JESSE H. CHOPER
Professor of Law,
University of California, Berkeley

DAVID P CURRIE
Professor of Law, University of Chicago

YALE KAMISAR
Professor of Law, University of San Diego
Professor of Law, University of Michigan

MARY KAY KANE

Professor of Law, Chancellor and Dean Emeritus,
University of California,
Hastings College of the Law

LARRY D. KRAMER
Dean and Professor of Law, Stanford Law School

WAYNE R. LaFAVE
Professor of Law, University of Illinois

JONATHAN R. MACEY
Professor of Law, Yale Law School

ARTHUR R. MILLER
Professor of Law, Harvard University

GRANT S. NELSON
Professor of Law,
University of California, Los Angeles

JAMES J. WHITE
Professor of Law, University of Michigan
 ^tOAGET OWLNIBRUANRlYVhXm
l*

Global Issues in
Legal Ethics

By

James E. Moliterno
Tazewell Taylor Professor of Law
Marshall-Wythe School of Law
College of William and Mary

George C. Harris
Professor of Law
McGeorge School of Law
University of the Pacific

AMERICAN CASEBOOK SERIES®

THOMSON
- *-
WEST

Mat #40498120
Thomson/West have created this publication to provide you with accurate and authoritative infor¬
mation concerning the subject matter covered. However, this publication was not necessarily pre¬
pared by persons licensed to practice law in a particular jurisdiction. Thomson/West are not en¬
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© 2007 Thomson/ West

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 To Madrid

— Professor Moliterno

To Terry, Brian, and Maya

— Professor Harris

in
»
 Preface

This is a short book about the law that governs lawyers in a

global practice environment. We sincerely believe that the world is
shrinking, or flattening or whatever metaphor you choose to
describe the reality that connections among societies and cultures
around the globe are becoming closer. This phenomenon has and
will increasingly affect the work of lawyers.
We think that the right way to describe the law governing
lawyers now includes materials from outside the U.S. The law that

governs today’s and quite clearly tomorrow’s U.S. lawyers is not

simply U.S. law. Our students today need preparation not for their
first year of practice, but for their fifth and tenth and twentieth
years. There can be no doubt that American lawyers now and in
years to come will be governed by the law governing lawyers in the
EU, in Japan, and elsewhere. In this sense, these materials, while
comparative in their nature, are meant not merely for comparative
purposes but also to begin the process of educating U.S. lawyers
about the law that governs their behavior in international contexts.

The chapters of this book loosely parallel those of most profes¬

sional responsibility case or problem books. Each chapter is com¬
parative in some sense and many chapters include materials that

are transnational. Each chapter’s comparative portion includes a

very basic summary of U.S. law on the chapter’s doctrinal topic. We
assume that this material will be presented to students primarily

through the readings from their casebook or from the instructor’s

own knowledge of U.S. lawyer law. The remainder of the compara¬
tive portion of each chapter includes EU law and Japanese law on
the doctrinal topic, as well as some other domestic law of selected
states that vary from chapter to chapter. We hope this will give stu¬
dents a general feel for the EU and Japanese law and an exposure to
the existence of other ways of approaching the particular doctrinal
topic that will be exemplified by the law of the states chosen for the
particular chapter.
A fundamental comparative distinction threads through the
materials: lawyers in civil law systems have a fundamentally differ¬
ent role, especially in litigation, from their common law counter¬
parts. That distinction animates much of the comparative differ¬
ences between U.S. lawyer law and that of much of the rest of the
world.

v
VI PREFACE

Many chapters also include transnational materials that relate

to the general chapter topic. For example, in the lawyer regulation
chapter, where bar admission is an important component, the GATT
for services phenomenon is treated as is multidisciplinary practice
and the implications of the new TESCO law in the U.K.
 Acknowledgments

We thank Aspen Publishing (Wolters Kluwer Law & Business

division) and Juris Publishing, Inc. for permission to reprint their
copyrighted material and express our deep appreciation for the work
of our colleagues and research assistants Jinnifer Pitcher, Sandy
Dawes, Vesna Coric, Ines Cerovic, Harry Clayton, Sarah Cohn and
Eric Stodola.
 Global Issues Series
Series Editor, Franklin A. Gevurtz

Titles Available Now

Global Issues in Civil Procedure by Thomas Main, University of

the Pacific, McGeorge School of Law
ISBN 978-0-314-15978-6

Global Issues in Constitutional Law by Brian K. Landsberg, Uni¬

versity of the Pacific, McGeorge School of Law and Leslie Gielow
Jacobs, University of the Pacific, McGeorge School of Law
ISBN 978-0-314-17608-0

Global Issues in Contract Law by John A. Spanogle, Jr., George

Washington University, Michael R Malloy, University of the Pacific,
McGeorge School of Law, Louis E Del Duca, Pennsylvania State Uni¬
versity, Keith A. Rowley, University of Nevada, Las Vegas, and Andrea
K. Bjorklund, University of California, Davis
ISBN 978-0-314-16755-2
Global Issues in Corporate Law by Franklin A. Gevurtz, University
of the Pacific, McGeorge School of Law
ISBN 978-0-314-15977-9

Global Issues in Criminal Law by Linda Carter, University of the

Pacific, McGeorge School of Law, Christopher L. Blakesley, Univer¬
sity of Nevada, Las Vegas and Peter Henning, Wayne State University
ISBN 978-0-314-15997-7

Global Issues in Labor Law by Samuel Estreicher, New York Uni¬

versity School of Law
ISBN 978-0-314-17163-4

Global Issues in Legal Ethics by James E. Moliterno, College of

William & Mary, Marshall-Wythe School of Law and George C. Harris,
University of the Pacific, McGeorge School of Law
ISBN 978-0-314-16935-8
Global Issues in Property Law by John G. Sprankling, University
of the Pacific, McGeorge School of Law, Raymond R. Coletta, Universi¬
ty of the Pacific, McGeorge School of Law, and M.C. Mirow, Florida
International University College of Law
ISBN 978-0-314-16729-3

For Fall 2007 adoption, we also expect to have titles available in

Employment Discrimination and Family Law.

ix
 Summary of Contents

Page

Preface . v
Acknowledgments . vii
Table of Cases . -. xix

Chapter 1. Role of Lawyer . 1

A. Role of a Lawyer . 1
B. The Role of the Lawyer in the Civil and Common Law
Systems - . 2

Chapter 2. Regulation of Lawyers . 11

A. Admission to Practice (Entry to the Bar) . - . -. 11
B. Bar Discipline . 23
C. Availability of Malpractice and Other Controls Outside the
Bar Control . 25
D. Entering Into and Terminating a Client-Attorney Rela¬
tionship . 26
E. Fiduciary Duties . -. 30
F. Choice of Law . 34

Chapter 3. Defining and Forming the Lawyer-Client

Relationship . . 39
A. Defining the Lawyer-Client Relationship . 39
B. Initiating and Ending the Lawyer-Client Relationship - 45
C. Transnational Practice Issue — Associating Lawyers in a
Foreign Jurisdiction . . .. - 49

Chapter 4. Compensating Lawyers . -. . 58

A. Regulation of Fees . — .. . . . . 58
B. Representation of Indigent and Low-Income Clients . . - 69

Chapter 5. Confidentiality . - . -. . 82
A. Confidentiality and Privilege — General Principles and
Comparisons - 82
B. Confidentiality and Privilege in Transnational Litigation... 93

Chapter 6. Incompatible Relations - 98

A. Client Loyalty; Incompatible Relations of Lawyers . . 98
B. Independence-- . - . -. -- - 99
C. Standards . 101
D. A Bit More on Imputed Disqualification . 109

xi
xii SUMMARY OF CONTENTS
Page

Chapter 7. Representing Organizations . . .. - 114

A. Attorney-Client Privilege-.-- . . 114
B. Corporate Whistleblowing- _ _ 130
C. Foreign Corrupt Practices Act . 134

Chapter 8. Duties to the Court and Others _ 141

A. Duties to the Court _ 141
B. Duties to Others - 156

Chapter 9. Advertising and Solicitation - - - 169

A. United States - 170
B. Japan . . -. -- - 174
C. Lithuania . . -- - - - 175
D. Finland - 176
E. European Union Generally - 176

Chapter 10. Judicial Conduct - - - - 181

A. Introduction and Impartiality - - 181
B. Independence - - 182
C. Judicial Corruption - 188
D. General Judicial Standards - - - 190
E. Conclusion - 205

Index 209
 Table of Contents

Page

Preface . v
Acknowledgments- . vii
Table of Cases . xix

Chapter 1. Role of Lawyer . 1

A. Role of a Lawyer . 1
B. The Role of the Lawyer in the Civil and Common Law
Systems . 2
1. United States . 3
2. Japan . . 5
3. European Union . 7
4. Russia . 8
Discussion Questions . . 10

Chapter 2. Regulation of Lawyers - . 11

A. Admission to Practice (Entry to the Bar) . 11
1. Traditional Paths for Admission to Practice in a Law¬
yer’s Home State . -. -. . 12
a. United States . 12
b. European Union - . 13
c. Japan . -. 13
2. Admission to Practice Law in the Host State and Coun¬
try . - - -. . . — . 14
a. United States . . . . -. . . . . 14
b. European Union . 16
c. Japan - 18
3. General Agreement on Trade in Services (GATS) - 19
Overview - - 19
Generally Applicable Provisions . 20
Most Favored Nation Provision . . . -. . 20
Domestic Regulation Provision---- . 20
Recognition Provision . -. - . .. . 21
The MFN Exemption - . . . -. 21
The Schedules of Specific Commitments - - 21
Market Access Provision . . 22
National Treatment Provision - - 22
B. Bar Discipline - - - — - - - - 23
1. United States - 23
2. European Union - . 23
3. Japan _ _ _ _ _ -. . 24

Xlll
XIV TABLE OF CONTENTS
Page

C. Availability of Malpractice and Other Controls Outside the

Bar Control . 25
1. United States . . . .. . 25
2. European Union . . . . . 26
3. Japan . . . . . . 26
D. Entering Into and Terminating a Client-Attorney Rela¬
tionship . . . . . T. . 26
1. United States . . -. . . . 26
Mandatory withdrawal - . . . . . . 27
Permissive withdrawal . . . . .. 27
Duties upon Termination . . 28
2. European Union . . 29
E. Fiduciary Duties . . . . .. 30
1. United States . . . 30
Handling clients’ money - . - . 30
Client Trust Accounts . 31
Commingling funds - . . . - . . . . 32
2. European Union - - 32
3. Serbia ... . .. -. 33
F. Choice of Law - - - - -- - - 34
1. United States . 34
2. European Union . . .. -. . 35
3. Japan . . . .. . 35
Discussion Questions . — . -. -. — . 36

Chapter 3. Defining and Forming the Lawyer-Client

Relationship - - - - -. — -. 39
A. Defining the Lawyer-Client Relationship . . . - 39
1. Foundational Concepts and Duties - 39
2. Lawyer Independence and MDP . . 42
Discussion Questions . -. -. . 44
B. Initiating and Ending the Lawyer-Client Relationship 45
1. Engagement and Appointment of Counsel . . -- 45
2. Substitution of Counsel- . . . --- . 47
3. Withdrawal from Representation . . 48
Discussion Questions - 49
C. Transnational Practice Issue— Associating Lawyers in a
Foreign Jurisdiction . 49
In re Disciplinary Action David L. Curl . . . -. . 53
Discussion Questions . 57

Chapter 4. Compensating Lawyers . - . 58

A. Regulation of Fees . 58
1. Contingent Fees . 59
2. Fee Schedules . 64
3. Fee Shifting . . -. 66
4. Choice of Law Regarding Fees . -. 67
Discussion Questions 68
 TABLE OF CONTENTS xv
Page

1. Government Provision of Legal Services . 69

2. Pro Bono Legal Service . 71
3. The Right to Counsel in Civil Cases . -. 71
B. New
Represen tatiBrunswick
on of Indi(Minister of Health and Community Ser¬
gent and Low-Income Clients -
vices) v. G.(J.) . 73
69
Discussion Questions . 80

Chapter 5. Confidentiality . 82
A. Confidentiality and Privilege — General Principles and
Comparisons . 82
1. United Kingdom . 84
2. Civil Law Countries . 85
3. Japan . 88
4. China . 89
5. Exceptions to Confidentiality . 90
Discussion Questions - 92
B. Confidentiality and Privilege in Transnational Litigation -- 93
Patricia Ginsberg An Ethical Dilemma of American Attorneys in
China: The Conflict Between the Duty of Confidentiality to
Clients and the Requirement of Disclosure to the Chinese Gov¬
ernment - - - . . 93
AM & S Europe Ltd. v. Commission - . -. 95
Discussion Questions . . . -. 96

Chapter 6. Incompatible Relations - 98

A. Client Loyalty; Incompatible Relations of Lawyers . 98
B. Independence . 99
C. Standards . 101
1. U.S. Standards . 101
2. European Standards - . 104
3. Japanese Standards . . 105
4. Australian & New Zealand Standards . . -. 107
D. A Bit More on Imputed Disqualification . . 109
Relationship Between Lawyer & Firm . — . — -. 109
Discussion Problems . . 110

Chapter 7. Representing Organizations - - 114

A. Attorney-Client Privilege - 114
1. In-House Counsel . 114
Akzo Nobel Chemicals Ltd. v. Commission of the European
Communities - 116
2. The Scope of the Privilege . . . -- - 120
Akzo Nobel Chemicals Ltd. v. Commission of the European
Communities--- . . . -. 120
3. Transnational Attorney-Client Privilege Issue - 124
Renfield Corp. v. E. Remy Martin & Co., S.A . 124
Honeywell, Inc. v. Minolta Camera Co., Ltd. - . -. 127
Discussion Questions . -. -. 129
B. Corporate Whistle-blowing . . 130
Discussion Questions — . — . -. .. 133
 XVI TABLE OF CONTENTS
Page

Stichting Ter Behartiging Van De Belangen Van Oudaandeel-

houders In Het Kapitaal Van Saybolt International B.V. (Foun¬
dation of the Shareholders’ Committee Representing the Former
Shareholders of Saybolt International B.V.) u. Schreiber _ 135
Discussion Questions . . . . -. .. . 139
C. Foreign Corrupt Pra ces
Chapter 8. Duties toctithe Act --- .
Court and Others - -- 141
134
A. Duties to the Court-- . — . ----- - - - 141
1. Conduct with Regard to Court Proceedings . . . 141
2. Adverse Authority - - -. — . 142
3. False Evidence and Client Perjury - - — 144
R v. Moore - - - - -. . 147
4. Arguing for False Inferences . - . -. 152
5. Trial Publicity . — - - - - 154
Discussion Questions ~ - 155
B. Duties to Others . . 156

1. Represented Persons — the “No Contact” Rule - 156

2. Unrepresented Persons — Witnesses - 158
R v. Momodou . -. — -. — 161
3. Duty to Other Attorneys — Professionalism and Civ¬
ility - - 165
4. Duty to Others — Non-Discrimination — . -. 167
Discussion Questions . -. -- - 168

Chapter 9. Advertising and Solicitation . — . 169

A. United States - 170
B. Japan - 174
C. Lithuania - - - . — - - - - - 175
D. Finland . 176
E. European Union Generally - 176
Discussion Questions . -. 180

Chapter 10. Judicial Conduct . -- - 181

A. Introduction and Impartiality - - - -. 181
B. Independence . . . -. -. -. 182
C. Judicial Corruption . . 188
D. General Judicial Standards . — . 190
1. European Judicial Standards - - -. 190
a. Umbrella EU Standards . 190
Independence - - - - . - . . . 192
Impartiality - - - 192
Integrity - 192
Propriety . 192
Equality . 193
Competence and Diligence . 193
b. Ethical Standards of Individual European Countries 193
2. Japanese and Asia/Pacific Judicial Standards - 197
Independence of the Judiciary 197
Objective of the Judiciary 198
 TABLE OF CONTENTS xvii
Page

Appointment of Judges . 198

Tenure . . . 198
Judicial Conditions . 198
Jurisdiction - - 199
Judicial Administration . 199
Relationship with the Executive . 199
Resources . -. — 199
Emergency . 199
Judicial Reforms Specific to the Japanese Judiciary 199
3. U.S. Standards . . . 201
A Judge Should Uphold the Integrity and Independence of
the Judiciary . 202
A Judge Should Avoid Impropriety and the Appearance of
Impropriety in all Activities . 202
A Judge Should Perform the Duties of the Office Impartially
and Diligently . 202
A Judge Should Regulate Extra-Judicial Activities to Mini¬
mize the Risk of Conflict with Judicial Activities . 203
A Judge Should Refrain from Inappropriate Political Activity. 203
Diligence . 203
Competence — . 204
Maintain courtroom decorum — . . . — . 204
Patience . -. . . . . . 204
Avoid criticism of jurors . 204
Reporting others’ misconduct . 204
Disqualification and waiver . - 204
E. Conclusion . 205
Discussion Questions . 205

Index . 209
 Table of Cases

The principal cases are in bold type. Cases cited or discussed in the text
are roman type. References are to pages. Cases cited in principal
cases and within other quoted materials are not included.

Honeywell, Inc. v. Minolta Camera

Co., Ltd., 1990 WL 66182 (D.N.J.
Adoption of (see name of party) 1990), 127
Akzo Nobel Chemicals Ltd v. Com¬
mission of the European Commu¬ In re (see name of party)
nities (T125/03 R), 2003 WL
100080 (CFI 2003), 115, 116, 120
Aratra Potato Co. Ltd. v. Taylor Joynson
Lassiter v. Department of Social Ser¬
Garrett, 1995 WL 1083885 (QBD vices of Durham County, N. C., 452
1995), 61 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d
Attorney General v. Times Newspapers 640 (1981), 72
Ltd., 1973 WL 39987 (HL 1973), 155
AM & S Ltd. v. Commission of the
Matter of (see name of party)
European Communities (155/79), McIntyre Estate v. Ontario (Attorney
(ECJ 1982), 95, 115 General), 2002 WL 1607780 (Ont.
C.A.2002), 59
Barclays Bank Pic v. Eustice, 1995 WL Montgomery v. HM Advocate, 2000 WL
1082380 (CA (Civ Div) 1995), 85 1741362 (Privy Council 2000), 154
Bluestein v. State Bar, 118 Cal.Rptr.
175, 529 P.2d 599 (Cal.1974), 50, 52 National Association for Advancement of
Colored People, ex rel. Florida State
Conference of Branches of NAACP v.
Commission of the European Communi¬
ties v. Akzo Nobel Chemicals Ltd Florida Dept, of Corrections, 122
(C7/04 P (R)), 2004 WL 2709045 F.Supp.2d 1335 (M.D.Fla.2000), 158
(ECJ 2004), 120 New Brunswick (Minister of Health
& Community Services) v. G. (J.),
(S.C.C.1999), 73
Degen v. Steinbrink, 202 A.D. 477, 195
New Victoria Hospital v. Ryan, 1993 WL
N.Y.S. 810 (N.Y.A.D. 1 Dept.1922),
50 963755 (EAT 1992), 115

Disciplinary Action Curl, In re, 803 Ontario (Crime Commission), Re, 1962
F.2d 1004 (9th Cir.1986), 53 WL 64424 (Ont. C.A.1962), 146

El Gemayel v. Seaman, 536 N.Y.S. 2d Pavne v. Superior Court, 132 Cal.Rptr.

406, 533 N.E.2d 245 (N.Y.1988), 52
'405, 553 P.2d 565 (Cal. 1976), 72
Pennsylvania v. Delaware Valley Citi¬
Glebe Sugar Refining Co. Ltd. v. Trustee zens’ Council for Clean Air, 483 U.S.
of Port and Harbours and Greenock, 711, 107 S.Ct. 3078, 97 L.Ed.2d 585
1921 WL 15386 (HL 1921), 143 (1987), 61
Goldfarb v. Virginia State Bar, 421 U.S. Proposed Rule 988 and Amendment of
773, 95 S.Ct. 2004, 44 L.Ed.2d 572 Rule 952(c), California Rules of
(1975), 64 Court, Matter of Adoption of, 237

XIX
XX TABLE OF CASES

Cal.Rptr. 565, 737 P.2d 768 (Cal. The Florida Bar v. Pape, 918 So. 2d 240
1987), 52 (Fla.2005), 173
Three Rivers DC v. Bank of England
R. v. Momodou (Henry), CA (Crim. (Disclosure) (No. 6), 2004 WL
Div. 2005), 161 2526848 (HL 2004), 84
R. v. Moore, 2002 WL 36774 (Sask.
Tormo v. Yormark, 398 F.Supp. 1159
C.A.2002), 147 (D.N.J.1975), 50
Raphael Partners v. Lam, 2002 WL
1861853 (Ont. C.A.2002), 59
Rekeweg v. Federal Mut. Ins. Co., 324 United States v. _ (see oppos¬
F.2d 150 (7th Cir.1963), 50 ing party)
Renfield Corp. v. E. Remy Martin & Upjohn Co. v. United States, 449 U.S.
Co., S.A., 98 F.R.D. 442 (D.Del.
383, 101 S.Ct. 677, 66 L.Ed.2d 584
1982), 124, 127
(1981), 115, 120
Rock v. Arkansas, 483 U.S. 44, 107 S.Ct.
2704, 97 L.Ed.2d 37 (1987), 150
Valentine v. Chrestensen, 316 U.S. 52,
Roel, In re, 165 N.Y.S.2d 31, 144 N.E.2d
62 S.Ct. 920, 86 L.Ed. 1262 (1942),
24 (N.Y.1957), 50
171
Rowe, United States v., 96 F.3d 1294
(9th Cir.1996), 115
Wallersteiner v. Moir (No. 2), 1975 WL
Salas v. Cortez, 154 Cal.Rptr. 529, 593 45700 (CA (Civ Div) 1974), 61
P.2d 226 (Cal. 1979), 72 Wildermann v. Wachtell, 149 Misc. 623,
Stichting Ter Behartiging Van de 267 N.Y.S. 840 (N.Y.Sup.1933), 50
Belangen Van Oudaandeelhoud- Wouters v. Algemene Raad van de Ned-
ers In Het Kapitaal Van Saybolt erlandse Orde van Advocaten
International B.V. v. Schreiber, (C309/99), 2002 WL 29971 (ECJ
2002), 44
327 F.3d 173 (2nd Cir.2003), 135
Global Issues in
Legal Ethics
*

XXI
 Chapter 1

ROLE OF LAWYER

A. ROLE OF A LAWYER
Fundamental to any study of lawyer ethics is an appreciation of
the lawyer’s role with respect to clients, the profession itself, the
state and the public interest generally. The words of the lawyer
codes themselves have a general nature. Their interpretation and
understanding comes from reading them in the context of the
lawyer’s role.
Lawyers obviously play different roles depending on their place
in the legal profession and the nature of their law practice or
activity. Judges and prosecutors have fundamentally different roles
from those of private lawyers. But even within the ranks of those
we would usually call “lawyer,” different practice settings shade
the lawyer’s role in different ways. Criminal defense lawyers have
special responsibilities and duties; in-house corporate lawyers the
same; lawyers for government agencies serve somewhat different
interests than do private lawyers. Always consider the particular
place of a lawyer in society when considering that lawyer’s proper
course in a given circumstance.
The role of lawyer, of course, will vary from one legal system to
another. But some generalities can be drawn. Lawyers bring the
law to non lawyers by advising clients and by drafting documents
that make clients’ transactions work to serve the clients’ interests
within legal constraints. Lawyers make the system of justice work.
Their role is more active in the litigation process in common law
countries, to be sure, but in civil as well as common law countries,
the lawyer plays a crucial role in operating the system of justice,
shepherding cases through the system. Lawyers play an important
role in law making as well. Many lawyers serve in legislatures and
parliaments and often lawyers are called upon to advise parlia¬
ments on the details of new laws.

1
2 ROLE OF LAWYER Ch. 1

It is possible to have different views of what a lawyer does.

Some may say that a lawyer is a business person, not unlike the
barber, the doctor or the shop owner, providing a service to paying
customers. Others will see a more public-abiding role for the
lawyer, providing a service to paying clients but also maintaining
an eye on the public interest, justice, and fairness of society. This
difference in view will account for differing opinions about what a
lawyer should do in a morally difficult position.
In democratic societies, lawyers surely fill an important role
that no other professional fills: the lawyer is the guardian of the
rule of law, the ideal that all people stand equally before the law
and neither expect nor receive special treatment from it. In emerg¬
ing democracies, this role is especially important for lawyers, who
have the potential to become the great levelers between the power¬
ful and the less so. To be sure, the market for lawyer services, even
in the most well-established democracies, is tilted sharply toward
the corporate world and toward those with means. But guarantees
of the right to counsel in criminal matters, government funded
legal aid for the poor (limited as it is), and pro bono activities of
private lawyers, all combine to create some promise that the most
important matters affecting the poor and the powerless will also be
served by lawyers and the legal profession.

B. THE ROLE OF THE LAWYER IN THE CIVIL

AND COMMON LAW SYSTEMS
A common law system relies on court decisions as a source of
law while a civil law system relies solely on statutes created by the
legislature or administrative bodies. In a civil law system, therefore,
the judge applies the law but does not create it. In a common law
system, however, judges and lawyers must employ a more casuistic
approach to legal thinking. Judges create a common law system
gradually by deciding one case at a time building a body of law
based on the collective wisdom of other judicial decisions. This
different approach may lead legal professionals in a common law
system to concern themselves more with the practical administra¬
tion of the law while legal professionals in a civil law system may
find themselves more concerned with theory and preserving the
statutory framework as a coherent whole.
The differences between the civil and common law systems also
manifest themselves through dispute resolution procedure. Dis¬
putes in a common law system are resolved through an adversarial
system. The two opposing parties investigate, collect and present
the evidence and arguments before a passive factfinder. Judges
typically only intervene to guarantee that the adversaries have
equal opportunities to present their evidence and arguments to the
ty”2 3

Sec. B ROLE IN CIVIL AND COMMON LAW SYSTEMS 3

factfinder. On the other hand, in a civil law system, judges exercise

much more control over the scope and direction of the litigation.
The dispute resolution process becomes more inquisitorial than
adversarial. The lawyers in civil law systems proffer lines of inquiry
and make legal arguments rather than collecting evidence and
presenting it as common law parties do. Also, civil law trials do not
follow the point-counterpoint format that common law trials do.
Rather, the trials are more fluid, often becoming a series of hear¬
ings instead of one ultimate trial.

1. United States

Alexis De Tocqueville once stated that “When one visits Ameri¬

cans and when one studies their laws, one sees that the authority
they have given to lawyers and the influence that they have allowed
them to have in the government form the most powerful barrier
today against the lapses of democracy. This effect seems ... to have
a general cause that is useful to inquire about, for it can be
reproduced elsewhere.”1 The abundant authority and deference,
apparent to De Tocqueville, that American society affords lawyers
has given them the opportunity to play a crucial role in the
formation of American government. As Uncle Ben would warn
Peter Parker, however, “with great power comes great responsibili¬

Lawyers have indeed responded to this responsibility by mold¬

ing America’s government and laws from their infancy. In fact,
“[t]he Principal author of the Declaration of Independence, Thomas
Jefferson, was a lawyer. The principal force behind a unified
colonial response to British occupation of Boston, and hence the
Revolutionary War, John Adams, was a lawyer.”'1 Countless other
lawyers such as Alexander Hamilton, John Marshall, and William
Paterson proved critical to the nation’s development.1 Thus, it
should come as no surprise that “ [t]he footprints of the legal
profession are evident in the basic documents of the Revolution and

the basic documents establishing the United States.”’ Lawyers

today continue this tradition of public service with their strong
presence in the executive branches of our government and the state
and federal legislatures that shape our law. Lawyers not employed

1. Alexis De Toqueville. Democracy in 4. Kenneth M. Rosen, Lessons on

America 251 (Harvey C Mansfield & Del- Lawyers, Democracy, and Professional
ba Winthrop, eds. & trans., 2000). Responsibility, 19 Geo. J. Legal Ethics
2. See Spider-Man for an excellent 155, 172-173 (2006).
example of how one’s power leads to a 5. Goodman. The Rule of Law in Japan
moral obligation to help those less pow¬
erful. 133 (2003).
3. Carl F. Goodman, The Rule of Law
in Japan 133 (2003).
 4 ROLE OF LAWYER Ch. 1

in the field of public service guide individuals and business entities

through the United States’ complex legal system.
The controlling part law and the legal profession plays in our
society has spawned a great deal of public interest in the role of the
lawyer f “The three-fold loyalty of the lawyer to his client, to the
court or administrative agency before which he practices, and to
society at large, presents important problems of intrinsic interest to
everyone.”' The intense scrutiny that lawyers face as a result of
these significant duties has led to the criticism and distrust of
lawyers throughout history. s The legal profession has gone to great
lengths to regulate itself, in part, to make sure the things that
cause this distrust do not happen. The ABA has aptly described the
role of the lawyer in the United States as follows:
A lawyer, as a member of the legal profession, is a representa¬
tive of clients, an officer of the legal system and a public citizen

As a representative of clients, a lawyer performs various func¬

ce.6
tions. As 7
advisor, a 8 9 a client with an informed
lawyer provides
understanding of the client’s legal rights and obligations and
explains their practical implications. As advocate, a lawyer
zealously asserts the client’s position under the rules of the
adversary system. As negotiator, a lawyer seeks a result advan¬
tageous to the client but consistent with requirements of
having honest dealings with others. As an evaluator, a lawyer acts by

special examining a client’s legal affairs and reporting about them to

the client or to others.10
responsibility
In addition to these representational functions, a lawyer may
serve as a third-party neutral, a nonrepresentational role help¬
for
ing the parties
the to resolve a dispute or other matter. Some of
these Rules applyquality
directly to lawyers who are or have served as
third-party neutrals. of See, e.g., Rules 1.12 and 2.4. In addition,
there are Rules that apply to lawyers who are not active in the
practice of law or to practicing lawyers even when they are
acting in a nonprofessional capacity. For example, a lawyer
who commits fraud in the conduct of a business is subject to
discipline for engaging in conduct involving dishonesty, fraud,
deceit or misrepresentation. See Rule 8.4."
As a public citizen, a lawyer should seek improvement of the
law, access to the legal system, the administration of justice
and the quality of service rendered by the legal profession. As a

6. Rosen, at 167. 10. Model Rules of Prof’l Conduct

7. /(/. Preamble (2004).

8. Id. 11. Model Rules of Prof’l Conduct

9. Model Rules of Prof’l Conduct Preamble (2004).
Preamble (2004).
Sec. B ROLE IN CIVIL AND COMMON LAW SYSTEMS 5

member of a learned profession, a lawyer should cultivate

knowledge of the law beyond its use for clients, employ that
knowledge in reform of the law and work to strengthen legal
education. In addition, a lawyer should further the public’s
understanding of and confidence in the rule of law and the
justice system because legal institutions in a constitutional
democracy depend on popular participation and support to
maintain their authority. A lawyer should be mindful of defi¬
ciencies in the administration of justice and of the fact that the
poor, and sometimes persons who are not poor, cannot afford
adequate legal assistance. Therefore, all lawyers should devote
professional time and resources and use civic influence to
ensure equal access to our system of justice for all those who
because of economic or social barriers cannot afford or secure
adequate legal counsel. A lawyer should aid the legal profession
in pursuing these objectives and should help the bar regulate
itself in the public interest.1'
Lawyers play a vital role in the preservation of society. The
fulfillment of this role requires an understanding by lawyers of
their relationship to our legal system. The Rules of Profession¬
al Conduct, when properly applied, serve to define that rela¬

tionship.1’1
These standards reflect not only the necessity of zealous repre¬
sentation for clients in the United States’ adversarial common law
system but also the necessity of a lawyer’s integrity for society.
Absent either of these elements, the United States’ legal system
would not function nearly as efficiently as it currently does.

2. Japan

At the time of the Restoration, no legal profession existed in

Japan.11 Accordingly, lawyers neither led the revolution nor drafted
Japan’s original Constitution or Codes as occurred in the United
States.1,1 Instead, Japanese law formed based on statutes of Western
origin but has grown to often reach outcomes distinct from other

legal systems.111
The Japanese legal profession developed in a similar manner to
the English legal profession.1. Innkeepers would often advise cus¬
tomers engaged in disputes with government tax offices. Although

12. Model Rules of Prof’l Conduct 15. Id.

Preamble (2004).
16. Kenneth L. Port & Gerald Paul
13. Model Rules of Prof’l Conduct McAlinn, Comparative Law: Law and the
Preamble (2004).
Legal Process in Japan 13 (2003).
14. Goodman, The Rule of Law in
Japan 135 (2003). 17. Goodman, at 135.
6 ROLE OF LAWYER
Ch. 1

these innkeepers could not actually represent the customers before

the tax office, they would assist by drafting documents and con¬
structing arguments. Is Later, the Lawyers Law of 1893 created the
modern lawyer also known as bengoshi ,19
The training of Japanese lawyers differed dramatically from
that of American lawyers until recently.20 In 2004, Japan changed
its law school system to more closely match the United States law
school system.21 The new law schools operate at the graduate level
and employ “a more Americanized methodology based on the
Socratic method.”22 Currently there are over sixty such schools in
operation in Japan.22 Prior to the implementation of this new law
school system, law schools operated at the undergraduate level and
followed the typical Japanese pedagogy, lecture.21 Even after this
revolution in legal education, much remains the same as in the
prior system and much remains to develop.

Most Japanese lawyers practice as individuals outside of a law

firm.2'’ Even when these lawyers enter into partnerships, they tend
to operate more as individuals with shared expenses than true
partners.20 Law firms of more than one hundred lawyers are virtu¬
ally nonexistent because Japanese law forbids branch offices.2. It is
almost impossible for a foreigner to become a member of the
Japanese bar because the bengoshi exam is notoriously difficult and
administered only in Japanese.20 Most Japanese lawyers practice in
Tokyo or Osaka which leads to shortages of legal services in rural
areas.29 Also, most Japanese lawyers do not specialize but rather
become general practitioners.

In November 2004, Japanese attorneys “established new ethi¬

cal standards which also apply to registered foreign business attor¬
neys.”30 These standards also apply to registered foreign business
attorneys. These ethical rules characterize an attorneys role and
duties as follows:

1. An attorney shall be aware that his or her mission is to

protect fundamental human rights, to realize social
justice, and strive to attain this mission.
18. Id. 25. Id. 137.
19. Id. at 136.
26. Id.
20. Id.
27. Id.
21. http://www.nyulawglobal.org/
28. Id.
globalex/Japan.htm.
22. Goooman, The Rule of Law in 29. Id.
Japan 136 (2003).
30. Kyoko Ishida, Ethical Standards
23. http://www.nyulawglobal.org/ of Japanese Lawyers: Translation of the
globalex/ J apan.htm Ethics Codes for Six Categories of Legal
24. Goooman, The Rule of Law in
Service Providers, 14 Pac. Rim L. & Pol’y
Japan 136 (2003). J. 383, 383 (2005).
Sec. B ROLE IN CIVIL AND COMMON LAW SYSTEMS 7

2. An attorney shall respect freedom and independence in

his or her duties.

3. An attorney shall be aware of the importance of attor¬

ney autonomy and strive to maintain and develop a
self-governing system.
4. An attorney shall protect the independence of the
judiciary and strive to contribute to the sound develop¬
ment of the justice system.

5. An attorney shall respect truth, be faithful, and per¬

form his or her duties fairly and in good faith.
6. An attorney shall value honor, maintain credibility,
unsullied integrity, and strive to ennoble himself or
herself at all times.

7. An attorney shall develop his or her culture and strive

to study in order to be deeply versed in statutes and
legal business.
8. An attorney shall strive to participate in and practice
public interest activities that are appropriate to his
mission.

While these rules lay out the basic ethics for the attorneys
(bengoshi), there are several other types of legal service providers:
judicial scrivners, administrative scrivners, patent attorneys, tax
attorneys, and social insurance and labor consultants. The roles of
these legal professionals differ in that they offer more specialized
services, but they largely follow the same ethical code. “Although
the Japanese government plans to increase the number of attorneys
to 50,000 by 2018, currently legal service providers must provide a
significant amount of services to individuals and corporations be¬
cause there are only about 20,000 attorneys in Japan — one attorney
per 6,000 people — compared to about 941,000 attorneys in the
United States — one attorney per 290 people.”31 Whether Japan can
accomplish this feat remains to be seen.

3. European Union

The Council of the Bars and Law Societies of Europe (CCBE)

Preamble addresses the role of lawyer in a quite general way as
follows:

In a society founded on respect for the rule of law the

lawyer fulfills a special role. His duties do not begin and
end with the faithful performance of what he is instructed

31. Kyoko Ishida, Ethical Standards Service Providers, 14 Pac Rim L. & Pol’y
of Japanese Lawyers: Translation of the J. 383, 383 (2005).
Ethics Codes for Six Categories of Legal
8 ROLE OF LAWYER Ch. 1

to do so far as the law permits. A lawyer must serve the

interests of justice as well as those whose rights and
liberties he is trusted to assert and defend and it is his

duty not only to plead his client’s cause but to be his

adviser.32
A lawyer’s function therefore lays on him a variety of legal
and moral obligations toward: the client; the courts and
other authorities before whom the lawyer pleads the
client’s cause or acts on his behalf; the legal profession in
general and each fellow member of it in particular; the
public for whom the existence of a free and independent
profession itself is an essential means of safeguarding
human rights in face of the power of the state and other
interests in society.
It remains to be seen what role lawyers will take on through
transnational practice in the EU. However, the statements in this
preamble generally reflect the ABA’s sentiment that lawyers have a
duty not only to represent their client but also a duty to further
society.
One development that is shaping the legal profession in the EU
is the tendency of the EU courts (as opposed to the domestic, state
courts) to develop a common law. The use of precedent in these
courts is changing the ways in which lawyers interact with them
and in some respects European lawyers who are practicing in the
EU courts are developing the skills of common law lawyers, arguing
from precedent based on rule and prior authority’s rationale, and
sensing the increased lawyer role in shaping the law.

4. Russia

“The Russian legal profession comprises procurators, advo¬

cates, notaries and judges. In addition, there are non-advocate
private practitioners who work for companies, just as there are
government employed lawyers, other than procurators, who advise
governmental agencies. While all these diverse categories of lawyers
are [often discussed together,] they are really several separate
professions. This is in accord with the tradition in most civil law
countries and unlike lawyers in the United States, all of who are
members of the same ‘bar.’
Peter the Great created the procuracy in 1722 to act as the
“Eye of the Czar.”34 Now, “the procuracy is a unified and central-
32. Code of Conduct for Lawyers in 34. Id. at 136.
the European Union [hereinafter CCBE
Code], Preamble (2002).
33. Burnham. Maggs & Danilenko,
Law and Legal System of the Russian
Federation 131 (2004).
Sec. B ROLE IN CIVIL AND COMMON LAW SYSTEMS 9

ized system of federal bodies charged with supervision over the

observance of laws on the entire territory of the country.”*’ The

Procurator General is appointed by the Federation Council on
nomination by the President for a term of five years.'"’ The Procura¬
tor General then appoints lower level procurators.17 The procuracy
undertakes three major activities: supervision of state organiza¬
tions, criminal prosecution, and representation of the state in civil

proceedings."'
“An ‘advocate’ is the principal lawyer in the Russian system
who is permitted to represent clients in court or out of court for a
fee. As might be expected, the types of economic and legal changes
that have taken place in Russia since 1991 have increased the need
for qualified advocates. The advokatura almost doubled its size
from 28,000 in 1988 to 48,000 in 2002.”"' ‘Advocates’ have certain
responsibilities and privileges. Privileges include the right to use
the title ‘advocate’ and some tax advantages. Responsibilities in¬
clude complying with ethical rules, taking certain types of cases for
free or for a reduced fee, and refraining from all other gainful
activity except teaching, scholarly research and writing and ‘crea¬
tive work’ (writing, producing movies, etc.). This limitation on work
is rather striking. It would appear to prevent advocates from
becoming managers of businesses — work that lawyers regularly
perform in other countries.”1"
“In all civil law countries, notaries represent a separate branch
of the legal profession. While in the U.S. a notary usually has
limited powers, such as administration of oaths to persons who sign
sworn documents or verification of signatures on such documents,
Russian and other civil law notaries perform many functions which
in the US would be done by lawyers. This institution is called the
notariat in Russian.”41 Certification of legal transactions which
require stricter formal requirements in order to be valid is one of
the notariat’s most important functions.42 However, notaries also
certify wills and the accuracy of copies and translations.4'* In doing
so, the notaries often provide legal advice and assistance.44
41. Burnham. Maggs & Danilenko,
35. Id. The 1995 law “On the Procu¬
Law and Legal System of the Russian
racy of the Russian Federation” estab¬
lished this. Federation 160 (2004).
42. Burnham, Maggs & Danilenko,
36. Burnham, Maggs & Danilenko.
Law and Legal System of the Russian
Law and Legal System of the Russian
Federation 160-161 (2004).
Federation 138 (2004).
43. Burnham, Maggs & Danilenko,
37. Id. Law and Legal System of the Russian

38. Id. at 140-141. Federation 160-161 (2004).

44. Burnham. Maggs & Danilenko.
39. Id. at 142.
Law- and Legal System of the Russian
40. Id. at 144. Federation 160-161 (2004).
10 ROLE OF LAWYER Ch. 1

“The legal status of all Russian judges is established by the

1993 Constitution and the 1992 Law ‘On the Status of Judges.’
Laws governing different court structures may contain additional

normative prescriptions concerning the status of judges.” For ex¬

ample, the 1994 Federal Constitutional Law “On the Constitutional
Court determines the legal status and the process of appointment of

judges of the Constitutional Court.”40 During the Soviet era, the

judiciary was considered “an arm of the prevailing ideology” and a
system that allowed dismissals assured the political allegiance of
the judges. 4(i Today, judges are appointed to serve for life or a
specified tenure in order to enhance their independence.1.

Discussion Questions:

1-1: Lawyer knows that his client, Sandja, has committed the
crime with which she is charged. He advises her of all her
options but because the evidence against her is weak, he
tells her that he thinks she should plead not guilty. Has
Lawyer acted immorally?

1-2: Lawyer’s client, Dr. Nikolic, admits to Lawyer that he made

a mistake during surgery on one of his patients. His patient
is unaware of the mistake and has not yet suffered any
harmful side effects from the mistake. In fact, the odds are
good that whatever problems the patient does develop will
not be traceable to Dr. Nikolic’s mistake. Dr. Nikolic wants
Lawyer’s advice on how to handle this situation. If Lawyer is
a morally activist lawyer, what would she counsel Dr. Nikol¬
ic to do?

1-3: Draft a “Preamble” for a code of lawyer ethics that express¬

es your sense of the proper role of a lawyer and the legal
profession.

45. Burnham, Maggs & Danilenko,

Law and Legal System of the Russian
La Fe

an

Le

Sy

of

th

Ru

Federation 162 (2004).

ss
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d

st
ga1
w de

(2

46. Burnham, Maggs & Danilenko,

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l62

an
00
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Law and Legal System of the Russian

at

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Federation 163 (2004).

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 Chapter 2

REGULATION OF LAWYERS

This chapter covers some basic issues in the regulation of

lawyers and of the lawyer-client relationship. Once established, the
lawyer-client relationship is contractual in nature, but is also
subject to certain legal constraints outside the contract. This chap¬
ter first takes a global look at the various institutions that regulate
the legal profession generally. Specifically, lawyers are regulated by
their home jurisdiction both when they are admitted and as they
continue to practice. Special rules also apply to lawyers practicing
in a different jurisdiction from the jurisdiction in which they were
admitted to practice. Second, this chapter looks at the substantive
rules that are put in place to regulate lawyers’ conduct. Fiduciary
obligations of lawyers, obligations to end the relationship for vari¬
ous reasons, all serve as legal constraints that exist notwithstand¬
ing the terms of the lawyer client contract.

A. ADMISSION TO PRACTICE (ENTRY TO THE

BAR)

In every sophisticated jurisdiction, there is a licensing require¬

ment for lawyers. The licensing requirement creates the qualifica¬
tions to be a lawyer and excludes unlicensed persons from doing
“lawyer’s work.” While the practice of law by the unlicensed is
always prohibited in some manner, what constitutes the exclusive
province of lawyers (beyond courtroom activity and the drafting of
court papers) varies from place to place.1 The lawyer’s province is
thus defined by the institutions that are put in place to protect the
profession from outsiders. Initially, it is important to note that

1. James Moliterno, Materials for a Serbian Standards with a Comparative

Course on Legal Ethics (Responsibilities View (USAID NSCS 2006).
of Lawyers) for Serbian Law Schools:

11
12 REGULATION OF LAWYERS Ch. 2

different rules exist for initial admission to practice, the admission

to practice in a different state and the admission to practice in a
different country.

Licensing is done by a state and the global nature of the

economy and clients’ business and other interests raises the pros¬
pect of law practice beyond the borders of the state that granted
the lawyer’s license. Such practice is called multijurisdiction law
practice.
The EU has made great progress toward solving issues of
multijurisdictional law practice within the Union by creating the
CCBE and adopting an umbrella code of lawyer ethics that governs
lawyers when they cross EU borders. Other jurisdictions, including
the US have not gone as far in permitting free lawyer movement.
In the US, each individual state grants law licenses and a lawyer
has only limited power to work in other states. In recent years, the
ABA has adopted a model multijurisdictional practice rule that
would not eliminate the state based licenses but would allow
somewhat freer movement by lawyers across state lines represent¬
ing their client.

1. Traditional Paths for Admission to Practice in

a Lawyer’s Home State
a. United States

In the United States, attorneys must be licensed to practice law

by the jurisdiction in which they wish to practice.2 The ordinary

way to obtain a license to practice law is by earning a law school

degree and then applying for admission to a jurisdiction’s bar

through a state board of bar examiners.'5 Each state sets its own
eligibility criteria for qualifying for admission to that state’s bar.'
Usually, attorneys must show they are competent and that
they possess the requisite character and fitness to practice law in a
particular jurisdiction.5 Ordinarily, the initial applicant must show
that she holds “an acceptable educational credential (with rare
exception, a J.D. degree)” from an approved law school and has
passed the jurisdiction’s bar examination.'5 Nearly all jurisdictions
also require an applicant have an acceptable score on the Multistate
Professional Responsibility Examination (MPRE).7 Finally, to prove
character and fitness before the board of bar examiners, each
2. American Bar Association, Bar
4.
Id.
Admissions Basic Overview, available Id.
at http://www.abanet.org/legaled/bar
5.
admissions/basicoverview.html (last ac¬ Id.
cessed May 7, 2006). 6.
7. Id.
3. Id.
Sec. A ADMISSION TO PRACTICE 13

applicant presents background information related to the “appro¬

priateness of granting [him or her] a professional credential. ”s The
board then considers whether an applicant should be admitted to

practice law/'

b. European Union

Admission to practice law in most Member States of the

European Union typically consists of three aspects: education,
examination, and practical training.1" A European attorney must
initially be admitted to practice law in one Member State through
this traditional process before pursuing alternative paths to admis¬
sion in other Member States." Educational programs vary in dura¬
tion among Member States, but all are considered part of an
undergraduate education.1' France, Germany, Greece and Spain
each have four year programs, while Belgium, Denmark, Finland,
Italy and Portugal have five year programs. Luxembourg, which
only recently began to offer a law program, recognizes law degrees
from other EU law programs and supplement that education with
courses in local law.11 Harmonization of these varying undergradu¬
ate programs is underway, based on agreements reached in what
has come to be called the Bologna Declaration.
As in the U.S., aspiring EU lawyers generally must take a
state-administered examination before being allowed to engage in
the practice of law." Spain remains an exception to this general
statement. In Spain, the undergraduate degree and payment of a
licensing fee are sufficient to obtain a law license. The examination
is taken in two stages in some Member States, the first of which is
required before commencing the necessary practical training peri¬
od.1’ In Germany, aspiring lawyers must complete a variety of
rotations during a mandatory two year training period between
examinations.11’ The rotations include experiences with a court, a
government agency, and in private practice.1. Oftentimes, an aspir¬
ing lawyer may complete an L.L.M. program abroad to fulfill part of
their educational or practical training requirements.1*

c. Japan

Traditionally, to practice law in Japan as an attorney ibengo-

shi), judge or public prosecutor, a person was required to pass
8. Id. Id. at 566.
13.
9. Id.
14. Id. at 569.
10. Wayne J. Carroll, Liberalization
15. Id.
of National Legal Admissions Require¬
ments in the European Union: Lessons 16. Id. at 571.
and Implications, 22 Penn. St. Int'l L. 17. Id.
Rev. 563, 566 (2004).
11. Id. 18. Id. at 570.
12. Id.
14 REGULATION OF LAWYERS Ch. 2

Japan’s national bar examination, complete an eighteen month

apprenticeship at the Legal Training and Research Institute of the
Supreme Court, and then pass a completion test.19 Alternatively, a
person may practice law if she passed the bar examination and then
worked for five years or more in positions “of specialized legal work
in the courts, the Ministry of Justice, the House of Representatives,
the House of Councilors or other government institutions; [as a]
member of the House of Representatives or the House of Council¬
ors; or [as] professors and assistant professors of law at certain
universities.”20
Reforms to the legal profession training system have been
underway since 2001. 21 Among the reforms “is the placement of
graduate schools of law (law schools), which will be professional
graduate schools, as the central institution for the training of the
legal profession.”22 This change to a US-style, graduate legal edu¬
cation promises to have an enormous effect on Japanese legal
culture. More than sixty new law schools emerged when the govern¬
ment instituted this change and their fate will largely depend on
the success of their graduates and the organized bar’s willingness
to admit larger numbers of attorneys to the profession. The pro¬
gram of study at graduate law schools is three years, but may be
shortened to two years if the person has previously studied law at a
university.22 Beginning in 2006, aspiring attorneys must complete
the law school curriculum, or alternatively pass a preliminary test
if they have not completed the law school curriculum, to sit for a
new bar examination.21 Upon passing the bar examination, aspiring
attorneys are now required to complete twelve months of practical
training at the Legal Training and Research Institute of the Su¬
preme Court, and then pass the Institute’s completion test.2'’ Japa¬
nese nationality is required to become a public prosecutor or judge,

but is not required to become an attorney.21’

2. Admission to Practice Law in the Host State

and Country
a. United States

Admission of Migrant U.S. Lawyer in Host U.S. Member State

The process for admission to practice as a lawyer is similar in

most jurisdictions in the United States. Nonetheless, significant
Id.
19. Japan Federation of Bar Associa¬ 21.
22. Id.
tions, Japanese Attorney System ( hereaf¬
ter Japanese Attorney System), avail¬ 23. Id.
able at http://www.nichibenren.or.jp/en/ 24. Id.
about/system. html (last accessed July 6,
25. Id,
2006).
Id,
20. Id. 26.
Sec. A ADMISSION TO PRACTICE 15

restrictions do exist on lawyers admitted to practice in one state

who wish to practice in another state.2. All states and the District of
Columbia have rules permitting admission pro hac vice so that a
lawyer licensed in another state may temporarily practice law in
the host jurisdiction. 2S Admission pro hac vice requires a formal
application and fee, and usually the lawyer must work with a local

lawyer, who will be the “attorney of record’’ and will share respon¬
sibility for the matter.29
The American Bar Association Model Rule on pro hac vice
admission provides that the number of temporary appearances by

an out of state lawyer will be limited in the court’s discretion, and

requires the lawyer to serve his application on the lawyer discipline
agency or state bar of the host jurisdiction and pay a fee unless for
pro bono services or for defense of an indigent criminal.'*" The Rule
also requires the lawyer to consent to discipline in the host state
and associate with local counsel, but does not require reciprocity for

admission pro hac vice among the jurisdictions.31

American Bar Association Model Rule of Professional Conduct
5.5 permits a lawyer admitted in one U.S. jurisdiction to temporari¬
ly provide legal services in another jurisdiction when the legal

services are “undertaken with locally admitted counsel who is

actively involved in the matter, ‘reasonably related’ to a pending or
potential proceeding in or outside the state, ‘reasonably related’ to
a pending or potential ADR proceeding in or outside the state, lor]

‘reasonably related’ to a lawyer’s practice in a state where the

lawyer is admitted.”*2 So far, twenty-six states have adopted a rule
identical or similar to Rule 5.5.'*:*

27. Carroll, at 596. 32. Carroll, at 600; American Bar

28. American Bar Association, Com¬ Association, Model Rules of Professional
parison of ABA Model Rule for Pro Hac Conduct, Rule 5.5.
Vice Admission with State Versions and
33. American Bar Association, State
Amendments Since August 2002 (Decem¬
ber 20, 2005) (hereafter Pro Hac Vice Implementation of ABA Model Rule 5.5
Comparison), available at http://www. (June 30, 2006), available at http://www.
abanet.org/cpr/jclr/prohac_comparison_ abanet.org/cpr/jclr/5_5_quick_guide.pdf.
chart.pdf. See also Carroll, at 596. (Of the remaining 24 states, 11 have
29. Id. created committees to study ABA Multi¬
jurisdictional Practice recommendations,
30. American Bar Association, Com¬
7 have MJP committees that recom¬
mission on Multijurisdictional Practice,
mended adoption of a rule identical or
Report to the House of Delegates , Model
Rule on Pro Hac Vice Admission, avail¬ similar to Rule 5.5, and 6 have recom¬
able at http://www.abanet.org/cpr/mjp/ mendations pending before the highest
201f.doc, See also, Pro Hac Vice Com¬ court to adopt a rule identical or similar
parison. to Rule 5.5.)
31. Id.
16 _ REGULATION OF LAWYERS Ch. 2

Admission of Migrant Non-EU Lawyer

Approximately 25 U.S. states have rules for foreign legal con¬
sultants, allowing the limited practice of lawyers licensed outside
the US.

b. European Union

Admission of Migrant EU Lawyer in Host EU Member State

In the European Union, a series of Directives has increasingly
liberalized the admission of “migrant” lawyers from other Member
States. A 1977 Council Directive permitted lawyers to provide
temporary legal services, using their home country professional
title, in other Member States.'51 The 1977 Directive also authorized
host Member States to “reserve to prescribed categories of lawyers
the preparation of formal documents for obtaining title to adminis¬
ter estates of deceased persons, and the drafting of formal docu¬
ments creating or transferring interests in land.”35
In 1989, the Council issued another Directive to facilitate the
trade in services among Member States and specifically provided a
special rule regarding “applications for recognition of legal qualifi¬
cations in a host Member State.”3*’ Under the Directive, Member
States may decide whether to require applicants sit for an aptitude
test or be subjected to an adaptation period before being allowed to
practice law in the host state.31 Though the adaptation period
seemed favored by the Commission, all Member States but Den¬
mark chose to implement an aptitude test instead. 3h Though the
1989 Directive provided an alternative to the temporary admission
to practice of the 1977 Directive, its utility was still limited in that
no limits were prescribed for the subject matter to be included on

34. Carroll at 571-572; COUNCIL files/eng/dir_en/89_48.PDF, Carroll, at

DIRECTIVE of 22 March 1977 to facili¬ 572.
tate the effective exercise by lawyers of 37. Directive 89/48/EEC, Article 4,
freedom to provide services (77/249/
section 1(b) (“Should the host Member
EEC) (hereafter “Directive 77/249/ State make use of this possibility, it
EEC”), available at http://eur-lex. must give the applicant the right to
europa.eu/LexUriServ/LexUriServ. choose between an adaptation period
do?uri = CELEX: 31977L0249:EN:HTML
and an aptitude test. By way of deroga¬
(last accessed June 11, 2006). tion from this principle, for professions
35. Directive 77/249/EEC, Article 1, whose practice requires precise knowl¬
section 1. edge of national law and in respect of
36. COUNCIL DIRECTIVE of 21 which the provision of advice and/or as¬
sistance concerning national law is an
December 1988 on a general system for
essential and constant aspect of the pro¬
the recognition of higher-education di¬ fessional activity, the host Member State
plomas awarded on completion of profes¬ may stipulate either an adaptation peri¬
sional education and training of at least
od or an aptitude test.”), Carroll, at
three years’ duration (89/48/EEC) (here¬ 572-573.
after “Directive 89/48/EEC”), available
38. Carroll, at 573.
at http://www.buwiwm.edu.pl/eu/public/
Sec. A ADMISSION TO PRACTICE 17

the aptitude tests and most host states only issued the test in the
sole recognized language of that Member State. w
The Council further liberalized admission to practice in host
states by implementing the 1998 Directive that provided:

A lawyer practising under his home-country professional

title who has effectively and regularly pursued for a period
of at least three years an activity in the host Member State
in the law of that State including Community law shall,
with a view to gaining admission to the profession of
lawyer in the host Member State, be exempted from the
conditions set out in Article 4(l)(b) of Directive 89/48/EEC,

‘Effective and regular pursuit’ means actual exercise of the

activity without any interruption other than that resulting
from the events of everyday life.1"
This Directive gives EU lawyers a third path to admission in host
Member States, in addition to the traditional path and passing an
aptitude test.41 It does not limit a migrant lawyer’s ability to pursue
admission through the other paths.42 Further, this alternative only
requires three years of exposure to the local law. An applicant must
furnish proof of effective and regular pursuit to the competent
authority in the Member State, including relevant documentation
and the number and nature of matters the lawyer has handled.11
The competent authority will consider this information, as well as
the lawyer’s “knowledge and professional experience of the law of
the host Member State, and any attendance at lectures or seminars
on the law of the host Member State.”44 If a migrant lawyer is
refused admission, the competent authority must give the reasons
therefore and the lawyer may appeal the decision of the competent
authority under domestic law. If the lawyer is granted admission,
he may practice in the host Member State and may do so under
both the professional title of his home State and the professional
lawyer’s title of the host Member State.4'1
39. Id. at 573-574. 44. Id.

40. Directive 98/5/EC of the Europe¬ 45. Id. at Article 10, section 6. Host
an Parliament and of the Council of 16
Member States, however, are still per¬
February 1998 to facilitate the practice mitted to reserve certain activities to
of the profession of lawyer on a perma¬ domestic lawyers, such as when the
nent basis in a Member State other than
that in which the qualification was ob¬ Member State prescribes categories “of
lawyers to prepare deeds for obtaining
tained, O.J. L 77/36 (14.3.98) (hereinaf¬ title to administer estates of deceased
ter Directive 98/5/EC), Article 10, avail¬ persons and for creating or transferring
able at http://europa.eu.int/eur-lex/pri/
en/oj/dat/1998/l_077/l_077 199803 14en interests in land” when those activities
are reserved for non-lawyers in other
00360043.pdf. Member States. Host Member States
41. Carroll, at 575.
may also set “specific rules for access to
42. Directive 98/5/EC at Article 10,
supreme courts, such as the use of spe¬
section 2.
cialist lawyers.” Id. at Article 5, sections
43. Id. at Article 10, sections 1, 3.
2, 3.
18 REGULATION OF LAWYERS Ch. 2

Admission of Migrant Non-EU Lawyer

Countries in the European Union have different rules for
admitting lawyers from outside the union to practice. For example,
Germany does not allow alternative paths to admission to practice
law to non-EU citizens. 4<i At least one scholar suggests, however,
that bilateral treaties providing for national treatment may obligate
one treaty partner to make available any alternative paths to
admission of that country’s legal profession to citizens of the other
treaty partner.1' For instance, the U.S. and Germany have a bilater¬
al Friendship, Commerce and Navigation Treaty, so under this
suggestion, Germany would be required to provide the same alter¬
native paths to admission to U.S. lawyers as it provides for other
EU lawyers, such as sitting for an aptitude test or admission based
on three years of local legal experience. 4S As of yet, no test cases
have arisen in countries with liberal approaches to treatment of
foreign lawyers, and until a lawyer attempts to rely on treaty rights
for admission in more restrictive countries, any treaty rights will
remain abstract.49

c. Japan

As noted above, Japanese nationality is not required to become

an attorney in Japan, so non- Japanese citizens may take the
traditional path to admission to practice law. Japan’s Foreign
Service Law also provides an alternative path for persons licensed
elsewhere to practice law in Japan, though it permits a much more

limited legal practice than the traditional path.'’"

Attorneys licensed to practice law in a foreign country may
become foreign special members51 if they meet certain require¬
ments. An applicant must be qualified as an attorney in a foreign
country and must have three or more years experience practicing
law in the foreign country.52 An applicant may not become a foreign
special member within three years of disbarment if he has been
disbarred in his home country or Japan.53 Further, applicants must
be willing to faithfully perform their duties as a foreign special
member, and they must have “plans of operation, established
residency in Japan, and sufficient financial means (either individu¬
ally or through a law office to which they belong) to engage in legal
46. Carroll, at 602. 52. Id. A credit of up to one year
47. Id. at 602-606. towards the three year requirement will
48. Id. at 602, 606. be given for experience under a bengoshi
49. Id. at 606.
or a registered Foreign Special Member.
50. Id. Id.
53. Id.
Id. Foreign Special Members in
51.
Japan are Gaikokuho-J imu-Bengoshi .
 19
Sec. A ADMISSION TO PRACTICE

practice in Japan. . . [and| the ability to compensate clients for any

damages caused through malpractice.”54 Once admitted, a foreign
special member must stay in Japan at least 180 days per year.05
Attorneys from non-World Trade Organization (WTO) member
countries must have reciprocal treatment for bengoshi, but recipro¬
cal treatment is not required if the applicant-attorney is from a
WTO member country. Foreign special members are limited in
which areas of law they may practice. Specifically, they may prac¬
tice law as it relates to the law of the country where the attorney
was originally qualified (their home country), the law of a specific
country that is designated by the Japanese Minister of Justice and
is noted in the registry of the Federation, and the law of other
countries upon “written advice of a person who satisfies certain
conditions specified by law.”oh They may also represent a party
involved in international arbitration regardless of the governing

law.07
Foreign special members are prohibited, however, from provid¬
ing certain legal services.58 To name a few, they may not provide
representation in or prepare documents for proceedings before a
Japanese court or other governmental agency, act as criminal
defense counsel or provide legal assistance to a fugitive criminal
facing extradition, participate as an attendant in juvenile protection
cases, or give expert or other legal opinions regarding laws other
than the law which the foreign special member has been qualified

to practice. ’”

3. General Agreement on Trade in Services

(GATS)
Overview

The Agreement Establishing the World Trade Organization

was signed in 1994. There were several agreements annexed to the
Agreement Establishing the World Trade Organization that every
country agreed to abide by when it joined the WTO. One of the
annexed agreements is the General Agreement on Trade in Services
54. Id.
family member, that period will be treat¬
ed as if the attorney remained in Japan.
55. Japan Federation of Bar Associa¬
If the attorney fails to stay in Japan for
tions , Foreign Lawyers and Internation¬
at least 180 days, the Federation may
al Legal Practice Committee, A Guide to
Rules for Foreign Special Members (Re¬ cancel the attorney’s registration and
the Minister of Justice may cancel its
vised Edition) (hereafter Guide for For¬
eign Special Members) (February 2005) approval.
at 27, available at http://www. 56. Id.
nichibenren.or.jp/en/about/data/guide. 57. Id.
pdf (last accessed July 6, 2006). If the
58. Guide for Foreign Special Mem¬
Foreign Special Member is forced to stay
abroad in exceptional circumstances, bers, at 9.
such as for an injury to the attorney or a 59. Id. at 9-10.
20 REGULATION OF LAWYERS Ch. 2

or ‘ GATS.’ The GATS was the first multilateral trade agreement

that applied to services, rather than goods. The GATS applies to all
trade in services, including professional services and thus legal
services.

It is useful to think about the GATS as having a four-part

structure. First, there are provisions of the GATS that apply to
trade in all legal services in all WTO Member States. Second, there
are certain countries that exempted themselves from the most-
favored nation provision in the GATS. Third, there are additional
obligations in legal services listed in the Schedules of Specific
Commitments. Fourth, there are two provisions in the GATS
mandate ongoing work that is relevant to legal services.

Generally Applicable Provisions

The GATS includes some provisions that are generally applica¬

ble and thus apply to trade in legal services in every WTO Member
State. These four generally applicable provisions are: 1) the most
favored nation requirement; 2) transparency; 3) the procedural
review section of the domestic regulation provision; and 4) recogni¬
tion.

Most Favored Nation Provision

This provision requires each country to accord all WTO Mem¬

ber States the same treatment that it provides to any WTO Mem¬
ber State with respect to measures affecting trade in legal services.
In other words, it is an “equal protection” type of provision that
requires equal treatment as between foreign countries. This provi¬
sion thus prohibits reciprocity provisions insofar as the reciprocity
requirement is applied to foreign legal services providers.
As further discussed below, there are three circumstances in
which this MFN requirement need not be applied. First, a few
countries exempted themselves from this MFN requirement. Sec¬
ond, GATS permits a WTO Member State to negotiate a “Mutual
Recognition Agreement” with another country, provided that the
WTO is notified at the onset of such negotiations and provided that
each country is willing to offer the same MRA to all other WTO
Member States. Third, provided notice is given, GATS permits
more favorable treatment resulting from Economic Integration
agreements, such as the European Union and NAFTA agreements.

Domestic Regulation Provision

Domestic Regulation provisions include a country’s licensing

and qualification rules for its own lawyers. The Domestic Regula-
Sec. A ADMISSION TO PRACTICE 21

tion article in the GATS has six subsections, only one of which is
generally applicable to all WTO Member States. The generally
applicable rule requires each WTO Member State to maintain or
institute procedures to have an objective and impartial review of
any negative decisions by a country to exclude foreign-service
providers (in this case foreign lawyers). Remedies must be avail¬
able, e.g., the provision does not apply if it would be inconsistent
with a country’s constitutional structure or the nature of its legal
system.

Recognition Provision

Some regulators of legal services may decide that they are

willing to “recognize” the qualifications of lawyers who are already
licensed in another jurisdiction and permit those lawyers to practice
in the Member State. Recognition issues may be handled through
“Mutual Recognition Agreements” negotiated between GATS Mem¬
ber States. This section creates a structure by which Member
States can negotiate “Mutual Recognition Agreements.”

The MFN Exemption

The most-favored nation provision of the GATS requires a

WTO Member State to accord all Member States the same treat¬
ment with respect to measures affecting trade in services that it
affords to any Member State. At the time the GATS was signed,
however, a WTO Member State was entitled to place legal services
on an MFN exemption list. A country that exercised this option is
not required to comply with the MFN requirement.
Four Members have MFN exemptions in legal services (Brunei
Darussalam, Bulgaria, Dominican Republic and Singapore), while
four other Members have exemptions in professional services (Costa
Rica, Honduras, Panama, and Turkey).
Most Member States (including the major players involved in
the export and import of legal services) have not put legal services
on their MFN exemption list and will not be permitted to have a
reciprocity requirement for foreign lawyers without violating the
GATS.

The Schedules of Specific Commitments

In addition to the generally applicable provisions in the GATS,

there are certain provisions in the GATS that apply only if a
country listed legal services on its Schedule of Specific Commit¬
ments. Each country’s Schedule of Specific Commitments was de¬
veloped based on a request-offer system; countries exchanged infor-
22 REGULATION OF LAWYERS Ch. 2

mation about their proposed Schedules of Specific Commitments

during the Uruguay Round negotiations. This request-offer system
of negotiations permitted a country to know, before it finalized its
own Schedule of Specific Commitments, what it could expect from
other countries.

Many countries listed legal services in their Schedules as a

covered service. As a result, for many WTO Member States, legal
services are subject to additional provisions in the GATS. Among
these additional obligations are market access and national treat¬
ment.

Market Access Provision

If a country lists a particular sector, such as legal services, on

its Schedule of Specific Commitments, then that country has agreed
to provide “market access” with respect to that sector, subject to
any limitations noted in its Schedule of Specific Commitments. The
market access provision forbids limitations on the number of ser¬
vice providers, for example by quotas, numerical limitations, or
monopolies. The market access provision also requires that access
to the legal services market not be provided in a manner less
favorable than is set forth in the country’s Schedule of Specific
Commitments. The market access provision could be important in
countries that place a limit on the number of foreign lawyers who
will be permitted to practice law in the country.

National Treatment Provision

If a country lists a particular sector, such as legal services, on

its Schedule of Specific Commitments, then that country has agreed
to provide “national treatment” with respect to that sector, subject
to any limitations noted in the Schedule of Specific Commitments.
The “national treatment” provision acts as an equal protection
clause for foreign lawyers as compared to domestic lawyers. If a
country has “scheduled” legal services, this article would prohibit
regulators from providing foreign lawyers with treatment that is
less favorable than the treatment it accords to domestic lawyers,
except as specifically noted in the Schedule. Countries may meet
the “national treatment” requirement either by according formally
identical treatment or formally different treatment. The article
explains that formally identical or formally different treatment
shall be considered less favorable if it modifies the conditions of
competition in favor of domestic lawyers.
Although not yet fully realized, GATS and other international
services agreements have the potential to revolutionize global law
practice by breaking down national barriers to market entry.
 23
Sec. B BAR DISCIPLINE

B. BAR DISCIPLINE

One of the central claims of being a profession is the notion of

self-governance. The idea is that as a professional group, different
from other businesses, the members of a profession control the
conduct of its own members independently of any government
control. This feature of the legal profession finds itself in the
existence of bar associations and law societies, in the power of those
associations to discipline members for misconduct, and, where it
exists, the mandatory duty of lawyers to report serious misconduct
of other lawyers.

Self-governance is a form of professional independence. It is a

claim that governance of the legal profession is outside the purview
of the political branches of government, leaving authority to govern
lawyers to the profession itself and at most the judiciary, with
whom the legal profession shares a kinship. Naturally, in civil law
systems this kinship between lawyers and the judiciary is somewhat
less strong than in common law systems. In common law systems,
virtually all judges are also lawyers and have practiced law. In civil
law systems, the more ordinary approach is for a separation of
training at some juncture between lawyers and judges.

1. United States

A key feature of self-governance in the U.S. is the rule that

obligates lawyers to report the serious misconduct of other lawyers
to the bar for possible discipline. This mandatory obligation is
rarely complied with or enforced. Nonetheless, it is much-touted as
a quintessential feature of the American legal profession’s claims of
self-regulation. As more significant obligations are imposed on U.S.
lawyers by federal and state agencies and by malpractice insurance
carriers, it is less and less accurate to say that the U.S. legal
profession is genuinely self-governing.

2. European Union

Under both the 1977 and 1998 Directives, a migrant EU lawyer

practicing in a host Member State is subject to the rules of
professional conduct of the host Member State, irregardless of the
rules of professional conduct of his home Member State."" In the
United Kingdom, the applicable rules of professional conduct are
those for solicitors, unless the activity is one reserved for barristers
and advocates, in which case the rules applicable to those groups

60. Directive 77/249/EEC, at Article

3, Directive 98/5/EC, at Article 6, section
1.
24 REGULATION OF LAWYERS Ch. 2

apply. hl The rules applicable to barristers and advocates in the U.K.

always apply to Irish barristers practicing in the U.K., and vice
versa. h_ In Ireland, the applicable rules of professional conduct are
those for barristers when governing oral presentation of a case in
court, or for solicitors in all other cases.63
A lawyer practicing under his home-country professional title
may be subject to disciplinary proceedings in a host Member State
since, under the 1998 Directive, “the rules of procedure, penalties
and remedies provided for in the host Member State shall apply.”64
The competent disciplining authority in the host Member State is
required to notify the comparable authority in the home Member
State prior to initiating disciplinary proceedings.60 A home Member
State has discretion pursuant to its own rules and procedures on
how to respond to disciplinary proceedings initiated against a
home-country licensed lawyer.1 66 Nonetheless, a lawyer will auto¬
matically be prohibited from practicing law in a host Member State
under his home-country professional title during any time, tempo¬
rary or permanent, that his home Member State revokes authoriza¬
tion for the lawyer to practice at home.6'

3. Japan

Lawyers in Japan are subject to discipline for violating the

Practicing Attorneys Law or any provision of the articles of the
local bar association to which the lawyer belongs or articles of the

Japanese Federation of Bar Associations (Federation).66 Discipline

may include reprimand, suspension from the practice of law for up
to two years, order to withdraw from the bar association to which
the lawyer belongs, and disbarment.69 Both the local bar association
and the Federation, when appropriate and on its own motion, may

discipline a practicing attorney.'1’

A foreign special member who violates a Japanese law for
practicing attorneys or foreign lawyers, or who violates any provi¬
sion of the articles of the Federation that pertains to foreign special

members, is subject to disciplinary action by the Federation.'1

Foreign special members are also subject to disciplinary action for
61. Directive 77/249/EEC, at Article 68. Practicing Attorney Law, Article
3.
56, section 1, available at http://www.
62. Id. nichibenren.or.jp/en/about/pdf/paL2002.
63. Id. pdf (last accessed July 7, 2006).
64. Directive 98/5/EC, at Article 7, 69. Id. at Article 57, section 1.
section 1.
70. Id. at Article 57, section 2 and
65. Id. at Article 7, section 2. See
also, Carroll, at 579. Article 60.
66. Id. at Article 7, section 4. 71. Guide for Foreign Special Mem¬
67. Id. at Article 7, section 5. bers, at 32.
Sec. C CONTROLS OUTSIDE THE BAR CONTROL 25

damaging the integrity of the Federation or local bar association

and for behaving ‘‘with impropriety or appearance of impropriety in
his professional or personal conduct.”'' Such disciplinary action
includes reprimand, suspension for a period up to two years, forced
withdrawal from the local bar association and cancellation of for¬
eign special member registration, and dismissal.73 Dismissal is the
most stringent disciplinary action because it deprives the attorney
of status as a foreign special member and prohibits the attorney
from regaining that status for three years.'1

C. AVAILABILITY OF MALPRACTICE AND

OTHER CONTROLS OUTSIDE THE BAR
CONTROL
The discipline of lawyers by the bar or law society is far from
the only legal control on lawyer conduct. Liability to clients for
malpractice, a creature of the tort law, and the necessity and
demands of insurance coverage and carriers that such liability has
created, may be a more effective control on lawyer conduct than bar
discipline. Courts control lawyers as well, with contempt powers
and various forms of litigation sanctions.
If disciplinary answers are less than ideal, how should compe¬
tence be enforced? The answer seems to be an action for damages
for malpractice. This remedy is most established in the U.S., but
has some currency in some European jurisdictions. This remedy,
where it exists, places the enforcement in the hands of those most
motivated to complain: harmed clients with quantifiable losses to
be compensated.

1. United States

Liability in both tort and contract for malpractice is a staple

lawyer control device in the U.S. Lawyers are undoubtedly more
influenced in their behavior by malpractice liability and the associ¬
ated demands of obtaining insurance coverage than they are by the
fear of bar discipline. Bar discipline is infrequent and unlikely by
comparison with malpractice liability. A successful malpractice
complaint produces recovery for the injured party, unlike bar
discipline, and as a result, motivates pursuit of that remedy.
Further, malpractice insurance carriers require various procedures
and office practice policies to be in place before they will issue a
policy of insurance. These quite practical demands affect the way in
which lawyers do business, including guard confidences, avoid con¬
flicts of interest, and protect client property.
72. Id.
73. Id. at 32-33.
74. Id. at 33.
26 REGULATION OF LAWYERS
Ch. 2

2. European Union

Like their domestic counterparts, migrant EU lawyers may be

required to maintain professional liability insurance. The 1998
Directive permits host member states to require migrant lawyers
‘to take out professional indemnity insurance or to become a
member of a professional guarantee fund in accordance with the
rules which that State lays down for professional activities pursued
in its territory.”' ’ The lawyer may be exempted from this require¬
ment if the lawyer shows he maintains comparable insurance or
guarantee in his home state.'1’

3. Japan

Japan’s Foreign Lawyer Law includes penal provisions, which

call for fines and imprisonment — up to three years in some situa¬
tions — for violations of the Foreign Lawyer Law. For instance, if a
foreign special member engages in a prohibited legal service, the
lawyer “shall be sentenced to imprisonment with labor for not
more than two years or a fine not exceeding one million yen.”"

D. ENTERING INTO AND TERMINATING A

CLIENT-ATTORNEY RELATIONSHIP
Critical issues surround the beginning and ending of the law¬
yer-client relationship. In some respects, ordinary contract or obli¬
gations law applies. But the lawyer owes the client fiduciary and
other duties that modify a straightforward contract approach to
analyzing the lawyer-client relationship.

1. United States

In the U.S., in general, lawyers have no duty to undertake a

particular representation. A lawyer is not like a public utility that
must accept every customer who is willing to pay the necessary fee.
In general, a lawyer chooses which clients the lawyer will agree to
represent. Unlike an individual lawyer, the population of lawyers as
a group has something in common with public utilities. Lawyers
have a state-granted monopoly over the provision of legal services.
Lawyers in some states take an oath when they are admitted to
practice that provides, in part, that the lawyer will never reject for
personal reasons the causes of the defenseless and oppressed. One
may infer from this oath and the existence of the monopoly on the

75. Directive 98/5/EC, at Article 6. 77. Guide for Foreign Special Mem-
section 3. bers, at 11.
76. Id.
 27
Sec. D CLIENT-ATTORNEY RELATIONSHIPS

provision of legal services, a very limited duty of every lawyer to

accept a fair share of representation of the defenseless and op¬
pressed. A lawyer has a more pressing duty to accept court appoint¬
ments to represent clients except when good cause exists to decline.
Unlike the general rule that a lawyer has no duty to accept
every client’s matter, lawyers are prohibited from accepting (that
is, lawyers must reject) representation in several different situa¬
tions. When accepting representation will violate an ethics rule, the
lawyer has a duty to reject the representation.

The lawyer-client relationship formally begins when a client

reasonably believes that the lawyer has undertaken to provide the
client with legal service. The relationship does not depend for its
onset on the existence of a written contract nor a fee payment.

The formal lawyer-client relationship ends when representa¬

tion terminates. Despite termination, many lawyer duties to clients
continue, such as confidentiality and a limited conflict avoidance
duty. Withdrawal from representation is a critically important
device for the lawyer who is faced with the prospect that continued
representation of the client will result in a violation of the ethics
code or other law. There are instances where a lawyer’s withdrawal
is mandatory, and times when it is permitted, that is, at the option
of the lawyer himself.

Mandatory withdrawal

Under some circumstances, lawyers are required to withdraw

from representation, thereby terminating the lawyer-client relation¬
ship. Failure to withdraw under these circumstances subjects the
lawyer to discipline. For example, a lawyer is required to withdraw
when the lawyer knows that the client is using the lawyer’s services
to perpetrate crimes or frauds.

Permissive withdrawal

In some instances lawyers are permitted but not required to

withdraw. The practical effect of this rule is to allow lawyers to
withdraw from representation in the enumerated circumstances
without breaching a duty of continued representation to the client.
Without regard to any cause for withdrawal, a lawyer may with¬
draw if it can be done without material adverse effect to the client.

Even if some harm may come to the client from the withdraw¬
al, a lawyer may withdraw when any of the following causes exist.
When there is uncertainty that the lawyer’s services will result in
crimes or frauds, but the lawyer nonetheless reasonably believes
that the client is engaging in conduct that is criminal or fraudulent,
28 REGULATION OF LAWYERS Ch. 2

the lawyer may withdraw. When the lawyer learns that past ser¬
vices of the lawyer have been used by the client to perpetrate a
crime or fraud, the lawyer may withdraw even if it does not appear
that the lawyer’s current services for the client are being so used.
This rule permits a lawyer to withdraw from a client’s representa¬
tion and distance herself from the client’s crimes or frauds at the
earliest possible opportunity to do so. When, after the lawyer has
advised to the contrary, a client intends to continue with a course
of conduct that the lawyer finds morally repugnant or imprudent,
even though lawful, the lawyer may withdraw.

When a client has failed to meet the client’s obligations, most

often to pay the lawyer’s reasonable fee, the lawyer must first warn
the client that the lawyer intends to withdraw if the client does not
meet his obligations. If the client persists in failing to meet obli¬
gations after the warning, the lawyer may withdraw. If the repre¬
sentation will result in unreasonable financial burden to the law¬
yer, the lawyer may withdraw. This financial burden is not a mere
loss, but is on the same order as the sort of financial burden that
would permit a lawyer to decline a court appointment. If a client
has made the representation unreasonably difficult for the lawyer,
the lawyer may withdraw. If good cause exists of a kind not
enumerated by the rule, the lawyer may withdraw.

Duties upon Termination

Even when a lawyer has good cause to withdraw, a court may

order the lawyer to continue the representation. When ordered to
continue, a lawyer must continue the representation. Such an order
will often come during or on the eve of trial and be issued by a

judge who is trying to thwart a client’s attempt to delay the

proceedings by switching lawyers at the eleventh hour.
Although a client may discharge a lawyer without cause, the
client will continue to have an obligation to pay fees to the lawyer
that has already been earned. When a fee is a fixed amount for a
particular service or is based on hours of service, the fee upon
discharge will be calculated as the value of the services rendered.
Such a recovery theory is called quantum meruit. An hourly fee is
simply calculated as the value of the service already performed; a
fixed fee service requires a determination of the reasonable value of
the service rendered toward the client’s goal.
Contingent fee arrangements have presented a challenge to
courts trying to determine the measure of compensation owed the
discharged lawyer. Some courts have ruled that a contingent fee
lawyer who is discharged without cause is entitled to no fee, since
that lawyer did not produce the contingency that would trigger the
fee and because another rule would be too great a discouragement
 29
Sec. D CLIENT-ATTORNEY RELATIONSHIPS

to clients who wish to change lawyers. Others have ruled that a

contingent fee lawyer who is discharged without cause is entitled to
the full benefit of the contingency if indeed the client eventually
recovers in the matter. The lawyer in such a case has undertaken
the matter at some risk, and the lawyer has been discharged
without cause. This result means that the client will have to pay
double the contingent fee, one share to each of the two lawyers who
worked on the matter. Still others have ruled that the discharged
contingent fee lawyer is entitled to the reasonable value of the
services actually rendered (a quantum meruit theory) limited by
the amount that the lawyer would have earned had the contingency
occurred and the lawyer had recovered the agreed-upon percentage.

2. European Union

The European standards for beginning client-attorney relation¬

ships, like most other areas of legal ethics are more diverse than
the unitary ethical standards of an individual country such as the
United States. The CCBE Code does not make specific mention of
the specifics of the creation of such a relationship. It simply
requires that lawyers obey the standards of the court before which
they appear. Individual countries, the rule-makers for those courts,
have taken different approaches to the matter.
Count appointments are the rule in a number of countries.
Italy and the Czech Republic, for instance, forbid their lawyers
from refusing to provide assistance when the court orders them to
do so. Appointed lawyers are not a matter for the courts in
Lithuania. There, a section of the Bar deals with these matters, and
lawyers are similarly prohibited from refusing such appointments.
For the most part, lawyer-client relationships are governed by
the countries’ applicable contract law, as the majority of these
relationships are contractual in nature. Few countries spell out the
requirements of accepting or rejecting a case very explicitly. Many
civil law countries will also impose other duties — for example,
French lawyers have a pre-contractual duty of good faith to pro¬
spective clients.

The umbrella European standards for ending a lawyer-client

relationship are much more explicit. The CCBE says that withdraw¬
al is not allowed by default. If the lawyer can show that the client
can find alternative representation in time to avoid prejudice, he
can then withdraw according to the CCBE.
Individual countries allow withdrawal in a variety of other
circumstances. Italy, for instance, has a broad right to withdrawal.
So broad, in fact, that there are no explicit restrictions on it. So
long as there is adequate notice to the client and information given
30 REGULATION OF LAWYERS
Ch. 2

to avoid prejudice to the case, he is free to leave. Spanish lawyers

must go further — making sure that the client obtains further
representation. But Spanish lawyers are required to withdraw from
representation if it threatens lawyer’s independence.
Croatian lawyers are permitted to withdraw from a case if they
feel it impossible to prevail or if it impedes his or her professional
ethics. In Macedonia, the standard for withdrawal is a just reason.
This just reason, however, must have been discovered subsequent
to accepting the representation to be applicable. Small probabilities
of a positive outcome or a client’s inability to pay are two such
acceptable reasons.

E. FIDUCIARY DUTIES
In addition to contractual duties and tort duties, lawyers owe
their clients fiduciary duties. A fiduciary is one in whom a special
trust in placed. A fiduciary has special obligations to care for the
interests of the beneficiary (in the lawyer-client context, the client),
even when those interests are not aligned with the fiduciary’s own
interests. In some ways, the fiduciary is restrained from taking full
advantage of what would otherwise be a freely entered contract.
For example, a lawyer cannot enforce a contract for an unreason¬
able fee, even though the client freely agreed to pay that fee.

1. United States

In the U.S., a fiduciary owes to the beneficiary scrupulous good

faith, candor, and care in the management of the beneficiary’s

interests.

Handling clients’ money

Lawyer fiduciary duties, beyond the general care owed to client

interests and confidences that the relationship implies, are usually

thought of in terms of the lawyer’s handling of clients’ money and

property. Violations of the lawyer’s duty to properly handle client
property have been among the most frequent grounds for lawyer
discipline for a combination of the following reasons.

• Easy verification: Most money-handling violations are

easy to verify, unlike many others that involve murky
fact issues. Bank account information most often reveals
the violation in a way that is beyond question. In many
other lawyer disciplinary matters, fact issues develop
that require witness credibility evaluations and subjec¬
tive intent determinations.
Sec. E FIDUCIARY DUTIES
31

• Significant opportunity for continuing abuse: Lawyers

who abuse clients’ property are in a position to do

serious damage to future clients. The form of discipline
for property-handling violations has traditionally been
disbarment.

• Per se rules: The rules governing property-handling are

per se rules that require no intentional wrongdoing on

the part of the lawyer. Simple commingling of funds, for
example, subjects the lawyer to discipline without regard
to whether a client was actually harmed.

• Little or no countervailing interest: Unlike many other

violations that occur when a lawyer misbalances two or

more competing duties, very little in the way of a
countervailing duty exists to be balanced in money¬
handling violations. Being disciplined for breaching a
confidence in the face of significant public interest in
disclosure, being in an unacceptable multiple client con¬
flict despite client consent, or using prohibited forms of
advertising in the face of the public’s interest in being
made aware of lawyer services, all involve a difficult
balancing of competing duties and interests. Abusing
client property that the lawyer holds in trust involves no
such complex balance.

Client Trust Accounts

Lawyers must maintain client trust accounts and safety deposit

boxes for the safekeeping of client property. MR 1.15(a). The trust
accounts must be maintained in the state in which the lawyer is
licensed to practice unless the client consents to another arrange¬
ment. MR 1.15(a). Records of deposits and withdrawals from client
trust accounts must be kept for a period specified by the particular
state’s law, usually five years. MR 1.15(a). Client property must be
kept separate from the lawyer’s own property. MR 1.15(a).
Traditionally, trust accounts were maintained as non-interest
bearing accounts. Lawyers are not permitted to retain the interest
on a trust account (it belongs to the client). Further, interest-
bearing accounts were largely impractical because the interest
calculations and record-keeping was unreasonably onerous because
of the frequent deposits and withdrawals, often of fairly small
amounts of each client’s funds. Depositing funds in non-interest
bearing accounts served neither lawyers, nor clients, nor the public
interest, but rather served only the interests of the banks in which
client trust accounts were maintained. During the 1970’s and 80’s,
however, bar associations began to institute programs called IOLTA
(Interest on Lawyer Trust Accounts) programs to help finance legal
32 REGULATION OF LAWYERS Ch. 2

services for the poor. Such programs collect the interest earned on
interest-bearing client trust accounts, and the state distributes the
funds in the form of public service oriented grants. Such programs
have been challenged as a taking of client funds, but the programs
have been upheld.

Commingling funds

A lawyer must keep client property separate from the lawyer’s

property. In the trust account context, this means that only client
money must be in the trust account; The lawyer must maintain a
separate office operating account. When a lawyer commingles his
funds with a client’s, the lawyer is subject to discipline. MR 1.15(a).
The cases of disbarment for this violation are legion.
WRen the lawyer and another, usually but not always a client,
each claim an interest in a fund or other property, the lawyer must
keep that property separate from the lawyer’s property until a
settlement of the claims can be achieved. MR 1.15(c). Lawyer use of
client funds, whether temporary or permanent, whether done with
or without a good faith intention to return the funds, and whether
harm comes to the client or not, constitutes conversion and subjects
the lawyer to discipline. MR 1.15.

2. European Union

For many countries in Europe, the standards of what Fiduciary

duties are incumbent upon those practicing in the law are governed
by the Council of the Bars and Law Societies of Europe (CCBE).
The CCBE Code is binding upon the countries of Belgium, Germa¬
ny, Luxembourg, and Norway. Additionally, the countries of Fin¬
land and Sweden impose the restrictions of the CCBE Code upon
their lawyers when they are engaged in cross-border activities.
Within the United Kingdom, the CCBE Code is binding upon all
lawyers in England, Wales, and Scotland, and binding upon the
solicitors in Northern Ireland (though not the Bar).
Like many other countries in Europe, (most notably Spain) the
CCBE Code requires lawyers to deposit client funds in a bank (or
similar institution). Further, it requires that lawyers keep accurate
records. Strict record-keeping is also incumbent upon lawyers in
Slovakia. These records, according to the Code, must be available to
clients upon request. Finally, the Code requires that funds be paid
to the client immediately, or under other circumstances approved
by the client herself.
With most legal systems in Europe imposing the requirements
of the CCBE Code upon their lawyers, (i.e., The United Kingdom,
Germany, etc.) there are few other examples of Fiduciary responsi-
Sec. E FIDUCIARY DUTIES
33

bilities on the continent. The most notably different are the stan¬
dards found in Italy, authorized by their Code Deontologico For-
ense. Instead of the immediate payment required by the CCBE,
Italian lawyers are merely under a duty to render money punctual¬
ly and diligently, while accounting for the funds promptly. Any
money paid can only be converted into the lawyer’s personal money
if it is for his expenses (and the client is given notice of the
transfer) or for fees (and the client consents or the court so orders).

While not specifically addressed in the CCBE Code, comming¬

ling of funds is forbidden under Spanish, Norwegian, Croatian, and
Albanian law. Spanish law also forbids the conversion of client
funds into the lawyer’s personal funds (whether for expenses, fees,
or other reasons) unless expressly authorized by the client.
Despite the general acceptance of the CCBE in European
society, a failure to live up to fiduciary responsibilities is not
punished as frequently as it is in the United States. Outside of
Germany and Scotland, there are no disciplinary cases on record for
failure to respect the CCBE Code. Even in these two countries, the
frequency is low.

3. Serbia

The governing bodies of the Serbian Bar Association have yet

to promulgate specific rules regarding the regulation of attorneys’
holding of client funds. Similarly, there are no statutorily-enacted
regulations. It appears that it is unusual for Serbian lawyers to
hold clients’ funds in separate accounts. The only truly Serbian
authority that addresses an attorney’s fiduciary responsibility to his
client is the Articles of Association of the Bar Association of Serbia.

In Article 123, the Bar differentiates between “heavy” and “light”

violations of duties that attorneys have. Among those violations
noted as “heavy" are several that refer to an attorney’s fiduciary
duty.

Paragraphs 85 and 86 of the Serbian Lawyer Codex mandate

that the lawyer safeguard clients’ property that comes into the
possession of the lawyer. This will often occur when a settlement to
be paid to the client is forwarded initially to the lawyer or when the
lawyer is acting as a conduit for some payment from the client to a
third party.
Article 124 then lists what those heavy violations entail. Sec¬
tion 11 in this article lists “Keeping money paid for the client” to
be one such heavy violation. Section 13 similarly lists as a heavy
violation “Purchasing items at the public sale where he/she repre¬
sents a client for his/her benefit or another person’s.” Section 27
forbids “overpriced demand for representation or reimbursement of
34 REGULATION OF LAWYERS Ch. 2

expenses against the regulations of the Tariff about rewards and

reimbursements of expenses for attorneys’ fees or demanding a
reward from a client that he/she should represent for free” as the
same level violation. The light violations, as listed in Article 125,
contain no mention of a fiduciary duty.

Punishment for heavy violations, according to Article 126, can

entail a fine or erasure from the Register of Attorneys-at-law, so
despite a lack of specific statutory obligation, Serbian attorneys
nonetheless find themselves on the receiving end of some very stiff
penalties for mishandling client funds or otherwise abdicating their
fiduciary obligations as attorneys.

F. CHOICE OF LAW

Preliminary to applying the lawyer ethics rules to a lawyer’s

conduct, a choice of which law to apply must be made. Imagine, for
example, a U.S. lawyer meeting in Madrid to negotiate a contract
for her U.S. client with a Spanish lawyer representing his Italian
corporate client. Whose rules of lawyer ethics should apply to the
U.S. lawyer’s negotiating tactics?

1. United States

Rule 8.5(b) of the ABA Model Rules of Professional Conduct

governs the choice of law when a jurisdiction attempts to exercise
disciplinary authority. Specifically, Rule 8.5(b) states that:
In any exercise of the disciplinary authority of this jurisdiction,
the rules of professional conduct to be applied shall be as
follows: (1) for conduct in connection with a matter pending
before a tribunal, the rules of the jurisdiction in which the
tribunal sits, unless the rules of the tribunal provide otherwise;
and (2) for any other conduct, the rules of the jurisdiction in
which the lawyer’s conduct occurred, or, if the predominant
effect of the conduct is in a different jurisdiction, the rules of
that jurisdiction shall be applied to the conduct. A lawyer shall
not be subject to discipline if the lawyer’s conduct conforms to
the rules of a jurisdiction in which the lawyer reasonably

believes the predominant effect of the lawyer’s conduct will

occur.

The comments to this rule state that “|t]he choice of law

provision applies to lawyers engaged in transnational practice,
unless international law, treaties or other agreements between
competent regulatory authorities in the affected jurisdictions pro¬
vide otherwise.” Comment 7, Rule 8.5. As this comment makes
clear, the rule requires that U.S. lawyers sometimes need to follow
Sec. F CHOICE OF LAW 35

another nation’s rules of professional conduct when practicing in

that nation to avoid discipline in the United States.

2. European Union

As the name would imply, The Code of Conduct for Lawyers in

the European Union governs the professional conduct of lawyers in

the European Union.1'' The Code provides a set of “common rules

which apply to all lawyers from the European Economic Area
whatever Bar or Law Society they belong to in relation to their
cross-border practice.” Rule 1.3.1. While lawyers must follow these
rules for transnational practice, they must also follow the rules of
“the Bar or Law Society to which [they] belong to the extent that
they are consistent with the rules of the Code.” Rule 1.5.
The Code contains a provision dictating choice of law for
lawyers engaging in transnational practice. However, this provision
applies only to cross-border activities within the European Union
and the European Economic Area. This provision states that “the
ICode l shall apply to the cross-border activities of the lawyer within
the European Union and the European Economic Area.” Rule 1.5.
It then defines cross-border activities as “all professional contacts
with lawyers of Member States other than his own” and “the
professional activities of the lawyer in a Member State other than
his own, whether or not the lawyer is physically present in that
Member State.” Rule 1.5.

3. Japan

In November 2004, Japanese attorneys “established new ethical

standards which also apply to registered foreign business attor¬
neys. These standards also apply to registered foreign business

78. “Although primarily addressed Area (EFTA) Court. Id. A stated objec¬
to the lawyers of eighteen European tive of the CCBE is also to represent
Union CCBE member bars, the Code’s the Bars and Law Societies of the Euro¬
influence is much wider. The Bars of
pean Economic Area (EEA) to other le¬
Bulgaria, Croatia, Cyprus, the Czech
gal organizations, institutions and bod¬
Republic, Estonia, Former Yugoslav Re¬ ies such as the Union Internationale des
public of Macedonia, Hungary, Poland. Avocats, the International Bar Associa¬
Romania, the Slovak Republic, Slovenia, tion, and the Association Internationale
Switzerland, and Turkey are, for in¬ des Jeunes Avocats. Id. The CCBE
stance, represented at the CCBE by Ob¬ maintains close relationships with other
server delegations. See CCBE. What Is
international professional legal organi¬
the CCBE?, at http://www.ccbe.org/en/ zations such as the American Bar Asso¬
ccbe/ccbe en.htm (last visited Feb. 18, ciation (ABA), Japanese Federation of
2004). Additionally, the CCBE enjoys a
consultative status with the Council of Bar Associations (JFBA), and others.”
37 Cornell Int’l L.J. 115, 176.
Europe. Id. CCBE also maintains a Per¬
manent Delegation to the Court of Jus¬ 79. Kyoko Ishida, Ethical Standards
tice and the Court of First Instance of of Japanese Lawyers: Translation of the
the EU and the European Free Trade Ethics Codes for Six Categories of Legal
36 REGULATION OF LAWYERS Ch. 2

attorneys. Chapter XI, Article 78 of these rules simply states that

“|a]n attorney shall comply with the Attorneys’ Law, the articles of
the Japan Federation of Bar Associations, and the bar association
to which the attorney belongs. ”s" The rule does not seem to say
which regulations take precedence when a conflict occurs.

Discussion Questions:

2-1: Marina retained an attorney Jose, to file a medical malprac¬

tice suit against her Doctor and Hospital. Jose assured her
that everything was under control, but in actuality, Jose
forgot to file the suit and missed the deadline, effectively
prohibiting Marina from ever filing suit. Jose has already
been disciplined by the state bar. Does Marina have any
further recourse?

2-2: Sara retains a lawyer to represent her in a product liability

case. Sara gives her lawyer the blender that malfunctioned
and caused her injury. The lawyer takes the blender home
and puts it n her garage. Later, the lawyer accidentally
discards the blender while preparing for a yard sale. As a
result of the loss of this evidence, Sara loses her case. What
course of action against the lawyer is available and what are
the likely results?

2-3: Antonio is one of the most successful criminal defense attor¬

neys in the state and has always been careful to ensure that
his actions as an attorney always fall well within the bounds
of the ethics rules. However, Antonio has had two arrests for
driving under the influence in the past year and has also been
arrested for spousal abuse. May the bar discipline Antonio for
these arrests?

2-4: In exchange for a reduced hourly rate, Jelena has signed a

written agreement not to sue her attorney for malpractice
that may occur during the representation. Is the attorney
subject to discipline?

2-5: Nini brought a malpractice case based on a tort theory against

his attorney, Lasha. Nini was able to prove that but for
Lasha’s actions he would have won the matter that Lasha had
undertaken for Nini. However, he would have only won nomi¬
nal damages. What damages can Nini get from Lasha?
2-6: Dejan is a licensed attorney sharing an office with Andrea. He
is aware that there is a dispute over a missing document in

Service Providers , 14 Pac Rim L. & Pol’y Ethics Codes for Six Categories of Legal
J. 383, 383 (2005). Service Providers, 14 Pac Rim L. & Pol’y
80. Kyoko Iwhida, Ethical Standards J. 383, 400 (2005).
of -Japanese Lawyers: Translation of the
Sec. F CHOICE OF LAW 37

one of Andrea’s cases. As a result of overhearing a conversa¬

tion in the lobby between Andrea and one of her clients,
Zorana, Dejan has become aware that Andrea is in possession
of the document requested during discovery but is claiming
that it cannot be located. Dejan has become close friends with
Andrea over the years and does not want to cause her any
trouble. Must Dejan report Andrea to the appropriate profes¬
sional authority?
2-7: Helena is on retainer to Mladen. Mladen comes to Helena and
asks her to represent him in a personal injury claim. After
investigating, Helena comes to believe that the potential claim
is frivolous. Mladen demands that the claim be filed. Is
Helena required to represent Mladen because of the retainer
agreement she signed agreeing to represent Mladen in all of
his legal affairs?

2-8: Sasa has received a court appointment to represent Jovan who

has been charged with assault. Sasa does not want to take the
case because the amount he will be paid by the court is
substantially less than the rate he normally bills and he is
trying to save money to Like a vacation at the end of the year.
During Sasa’s initial meeting with Jovan, Sasa realizes that
Jovan is the former husband of a woman that Sasa represent¬
ed in a divorce case 10 years ago. One of the allegations
during the divorce was that Jovan had assaulted his wife. Can
Sasa decline the court appointment?

2-9: At a party, Mariana, a lawyer, is talking to an acquain¬

tance, Marco, who tells her that he is considering consult¬
ing a lawyer because of a problem he has been having
with his landlord. He tells Mariana all the details of the
problem and asks whether she thinks he has grounds for a
suit. Mariana tells him that the situation poses an inter¬
esting legal question that she could not answer without
doing some research and talking to her friend, a housing
attorney. Has a lawyer-client relationship begun between
Mariana and Marco?

2-10: Jelena has represented Milo and his family in all their legal
matters for a number of years. Jelena has recently become
aware that Milo is using her services to commit fraud. She
wants to withdraw as his counsel, but she signed a retainer
agreement in which she agreed to represent him in all his
legal matters. The agreement covers the next six months.
Jelena also knows her withdrawal will result in a material
adverse effect on Milo and his family. May Jelena withdraw?

2-11: A few months ago, prosecutor Goran, left his previous job
due to the low salary and began working as a defense
38 REGULATION OF LAWYERS Ch. 2

lawyerT. Former prosecutor Goran has now been asked to

represent client Ivana who has been indicted with insurance
charges. Goran was acting as a prosecutor in a case regard¬
ing a malpractice issue against Ivana. Is lawyer Goran
required to reject the representation or is there some room
for discretion to decide what he should do?

2-12: Lawyer Bojan had been representing his client, Milan, in an

alimentation case. After one year he learned that Milan was
is incapable of paying the fees and finished costs. In order to
explain his failures to pay fees on time, Milan claimed that
from very beginning of the attorney-client relationship, the
deal had been to condition payment on the success achieved.
Lawyer Bojan became furious and in the midst of the pro¬
cess, after securing a first-instance ruling, he suddenly with¬
drew from defense. In addition to withdrawing from the
defense, lawyer Bojan failed to file a remedy on time and,
consequently, client Milan was precluded from using his
appeal rights and he lost the case. Soon thereafter, daily
newspapers published articlesT including a statement by law¬
yer Bojan that his client Milan had hired him while conceal¬
ing his insolvency. Did Lawyer Bojan violate the law on
professional ethics of attorneys when he withdrew from the
representation in this way?

2-13: Client has deposited 5.000 Kuna with Lawyer toward fees
that are not yet earned by Lawyer. Lawyer’s office rent is
due and she has insufficient personal funds from which to
pay the rent. Lawyer uses 1.000 of the money Client has
deposited with Lawyer. Lawyer takes care to keep a record
of the money used and fully intends to replace it within a
few weeks time. Is Lawyer’s conduct permissible? Should it
be?

2-14: Lawyer represents Client as a plaintiff in a tort claim.

Defendant offers to settle the claim and suggests to Lawyer

that a check will be delivered for this purpose to Lawyer’s

office in the amount of 10000 Euros. How should Lawyer
instruct Defendant to draw the check and how should
Lawyer handle the incoming funds?

2-15: Lawyer frequents a cafe near the local law faculty building.
While in the cafe, Lawyer overhears a conversation at the
next table among three law students. One of the students is
offering to provide to the others a written list of the ques¬
tions that their professor plans to ask at the next day’s oral
exams, at which the two students at the table will be
examined. The same student also tells the others that in
another of their classes, the student can arrange to have
passing marks recorded.
 Chapter 3

DEFINING AND FORMING

THE LAWYER-CLIENT
RELATIONSHIP

A. DEFINING THE LAWYER-CLIENT RELA¬

TIONSHIP
When a lawyer agrees to represent a client or is appointed to
represent a client, what duties and responsibilities does she take
on? To whom does she owe those duties? To what degree is she an
agent of the client who takes her direction from the client? To what
degree is she an autonomous professional? To what degree is she an
officer or agent of the court or the government? How a legal system
answers these foundational questions may impact the way it an¬
swers other significant questions of professional responsibility.

1. Foundational Concepts and Duties

In the U.S., a lawyer is an agent and a fiduciary of her clients,

and a lawyer’s professional responsibilities are largely defined as
duties to the lawyer’s clients. The Preamble to the Model Rules of
Professional Conduct defines a lawyer first as “a representative of
clients” though also as “an officer of the legal system and a public
citizen having special responsibility for the quality of justice.”1
Foundational duties of competence, diligence and confidentiality
are all conceived as duties owed to the client.2 U.S. lawyers are
sometimes referred to pejoratively as “hired guns” or “mouth-

1. Preamble to Model Rules, at H [1]. promptness in representing a client.”);

2. See Model Rule 1.1 (“A lawyer Model Rule 1.6 (“A lawyer shall not
shall provide competent representation reveal information relating to the repre-
to a client.”); Model Rule 1.3 (“A lawyer sentation of a client unless the client
shall act with reasonable diligence and gives informed consent.”).

39
 40 Ch. 3
LAWYER-CLIENT RELATIONSHIP
ities.”3 4 5 6
pieces." It is generally accepted that the client has the authority to
decide the objectives of a representation within the bounds of what
is legal.'5 On the other hand, the lawyer will make decisions regard¬
ing the means of obtaining the client’s objectives while consulting
with the client about those means and keeping the client informed
about the status of the engagement. ' The close identification of the
lawyer with the client in the U.S. legal system is perhaps best
demonstrated by the need to declare, as the Model Rules do, that
“[a] lawyer’s representation of a client . . . does not constitute an
endorsement of the client’s political, economic, social or moral
views
or Some jurisdictions are less client-centered in their articulation
of a lawyer’s duties, giving more emphasis to the lawyer’s indepen¬
dence and/or public responsibility. This difference in emphasis is
reflected in the CCBE Code’s articulation of the “general principle”
of “independence”:
The many duties to which a lawyer is subject require his
absolute independence, free from all other influence, espe¬
cially such as may arise from his personal interests or
external pressure. Such independence is as necessary to
trust in the process of justice as the impartiality of the
judge. A lawyer must therefore avoid any impairment of
his independence and be careful not to compromise his
professional standards to please his client, the court or

third parties. b
As one commentator has concluded based on a comparison of U.S.
codes and the CCBE Code:

[I]n the United States society thinks about the lawyer

primarily as an agent of the client, one who acts because
of, and at the direction of, the client. In other words, the
lawyer is a derivative person, whose duties flow from the
client. In contrast the CCBE Code suggests a perspective
in which lawyers sometimes can be viewed as acting for
themselves, as opposed to acting as the agents of, and at
the direction of, clients. According to this perspective, the
lawyer is sometimes perceived as an independent being
who has rights and duties which do not necessarily derive
from the client.'
3. See Model Rule 1.2(a).
4. See id.\ Model Rule 1.4.
Et
Le

5. Model Rule 1.2(b).

CoI: on (19
Eu deC
th
toic CC Et

hth¬
Ceo

Pa an 1-5

An un

An

of
ga
mm
ro od 1,

e
s B hi

l J.
rto

al7

6. Council of Bars and Law Societies

pe e5

Gyes

Le
f

it ,

oi.s

ga

of Europe, Code of Conduct for Europe¬

du 93

y’
E cs

l
ct ).

an Lawyers, Rule 2.1.1 (“Indepen¬

2

dence”).
La
u
 Sec. A DEFINING THE RELATIONSHIP 41

This less client-centered concept of a lawyer’s professional

responsibilities may even be reflected in customs of dress. Lawyers
in civil law countries wear robes similar to those of the judiciary. As
another commentator has noted:

In one sense, the civilian lawyer more clearly seems to be

not only his client’s representative but also part of the
system of law. Indeed, this idea is visually reflected in the
civilian lawyer’s wearing of the profession’s robe when
appearing in court. One could interpret this formality as
presenting the lawyer as one with the system, collaborat¬
ing with justice. In the American system, which is adver¬
sarial in nature, the lawyer is easily distinguishable from

the judge (no robe!) and is not there to “collaborate” with

him or her. Rather, an American lawyer visually seems less
a part of the system and more a representative of her
client/

Other legal systems may conceive of the lawyer as neither

entirely the agent of the client nor an independent actor but as
primarily an agent of the state. At one time, regulations in the
People’s Republic of China considered lawyers “workers of the
state,” whose “mission was to provide legal advice to government
organs, state-owned entities, people’s communes, work units and

characterization of lawyers in the new “Lawyers Law,” which

became effective January 1, 1997, is much less state-centered and
defines their duties to include “protectfing] the lawful rights and
interests of the client within the limits of the authority of entrust-
ment.”1" Nonetheless, lawyers are defined as providing services to
society rather than to individual clients — “practitioners who have
obtained a lawyer’s practising certificate and provide legal services
to the public in accordance with law”11 — and drafters of the Law¬
yers Law specifically rejected proposals to define lawyers as “free
professionals” or “free and independent professionals.”1' Moreover,
a Ministry of Justice notice issued shortly after enactment of the
Lawyers Law emphasized that lawyers are to “put the interests of
society first.”11 Lack of sufficient independence has been a signifi¬
cant issue for Chinese lawyers:

8. Olga M. Pina, Systems of Ethical 11. Lawyers Law, art. 2 (P.R.C.).

Regulation: An International Compari¬ 12. Lawyers in China, supra note 9,
son, 1 Geo. J. Legal Ethics 797, 809
(1988). at 50.

9. Lawyers Comm, for Human 13. Id. at 51, quoting Decision Con¬
Rights, Lawyers in China: Obstacles to cerning the Strict Enforcement of the
Independence and the Defense of Rights Lawyers Law and the Further Strength¬
nomy.”8
49 (1998) [hereinafter Lawyers in Chi¬ ening of the 9
Establishment of the Law¬
na]. yer Force, issued September 26, 1996,
10. Lawyers Law, art. 27 (P.R.C.). art. 3.
ther
economic
actors
in
 42 LAWYER-CLIENT RELATIONSHIP Ch. 3

During the 1980s and 1990s lawyers were continually

thwarted in their efforts to do their jobs. A survey publish¬
ed in 1993 of 127 lawyers of different ages and economic
and political backgrounds revealed that 94% had experi¬
enced interference in their legal work, almost 30% on an
ongoing basis and 65% on an occasional basis. The main
sources of interference, in order of frequency, were (1)
societal (use of contracts), (2) government, and (3) the CCP
[Chinese Communist Party].14
In the view of some, an essential predicate of an independent bar in
China will be the development of law firms that are not financially
dependent on the state.15

2. Lawyer Independence and MDP

In the United States and elsewhere, rules prohibiting lawyers

from combining their practices with other professionals have been
justified as a protection of the lawyer’s independence. ABA Model
Rule 5.4, which is entitled “Professional Independence of a Law¬
yer,” provides, with limited exceptions, 1B that “[a] lawyer or law
firm shall not share legal fees with a nonlawyer.”17 The significant
practical impact of this rule is that lawyers cannot form partner¬
ships with accountants or other professionals, and nonlawyers
cannot invest in providers of legal services. While criticized by some
.

as promoting protectionism rather than independence1* or as being

unnecessary in the context of the reality of modern practice, 111 this
14. Lawyers in China, supra note 9, Legal Profession: A Market Approach to
at 31. There are reports that provisions Regulating the Delivery of Legal Services
of the Lawyers Law have been applied in in the Twenty-First Century, 69 Ford-
ham L. Rev. 83 (2000); George C. Harris
a way that significantly inhibits lawyers’
representation of criminal defendants in & Derek Foran, The Ethics of Middle-
China. See discussion in Chapter 8, part Class Access to Legal Services and What
A(3).
We Can Learn from the Medical Profes¬
15. Lawyers in China, supra note 9, sion’s Shift to a Corporate Paradigm, 70
Fordham L. Rev. 775 (2001).
at 53.

16. See Model Rule 5.4(a)(1) (permit¬

ting payments to the estates of deceased
An ti in bu fe sa ty fi fo de th ly wo an su

Do

Le

Et

A
Co ope ds
hi a
ga (2
nd

lawyers); Model Rule 5.4(a)(2) (permit¬

ge ve cr t re me rm r ep er

mp
c(s s
l 0
i,
St in sin

27

to a f ve e mo vi
lo ea

ar o ti in

ting purchase of deceased, disabled, or

“:L al

da¬ d t s nt ng no ngW rea

6wo
ud

n0o4 w

loa l etc

y if¬ he i¬
t) it

nwey
y int pr y ofen hes an

rk

ra

disappeared lawyer’s practice); Model

kei
rns

Rule 5.4(a)(3) (permitting payments to

er of w s e

h
wh or
ac es or io th
gl pr i T

non-lawyer employees as part of a com¬

t io io c in l r
nt or

fi a

hoer b a ntstrie

pensation or retirement plan); Model

n n ha g
s

rm r

rpo en nd

a
s

r
ra

Rule 5.4(a)(4) (permitting court-awarded

al n

at
h

ev ar
k

anvg

e
e
s,age

ol e
na ani ondmu

eem
s.

attorneys’ fees to be shared with a non¬

mo

ce
n
Se

w e l¬ yet
e en
r

s w adb
tu

profit organization that employed, re¬

e
eG

ry

tained, or recommended the lawyer).

re
d
eo

w
vo
ly mef

t
ou ihfed
he ilfy
ff

nc
c

17. Model Rule 5.4(a).

ld .
th fpe
re

la
erch gan P.
akre d aer
Cy.

e
o

w
r ofeen

yen
w

ot

i
e
Ha

r
it

18. See John S. Dzienkowski, Multi¬

rs
r
he
rk o ch

hor M
za

c
r
e th

on als
scse

disciplinary Practice and the American

rd

f
io
,Jr

ig
n
i
.&

an

ur
s

z
D

at .

at
io
io
”)

n
na
l
 43
Sec. A DEFINING THE RELATIONSHIP

rule has largely weathered recent efforts to modify it to allow

“multi-disciplinary practice” (“MDP”).20
Like the U.S., some other countries continue to prohibit
MDP.21 Most civil law countries in Europe, however, now allow
some forms of MDP. Germany and the Netherlands, for example,
permit MDP in the areas of tax and intellectual property.22 Spain
permits MDP unless the activities are incompatible with the legal
profession.23 Switzerland, Italy, and parts of France and Belgium
also permit some form of MDP.21 In Australia, the 1994 final report
of the Australian Competition and Consumer Commission conclud¬
ed that “li)n all jurisdictions, rules preventing lawyers from shar¬
ing profits from legal practice with non-lawyers . . . should be
repealed to permit formation of MDP . . . subject to adoption of
appropriate rules of ethical and professional conduct to protect the

interests of clients and the system of justice.”2'’

The CCBE Code, while acknowledging a general rule against
sharing of fees with non-lawyers, defers to the laws of members
states on MDP. It provides that “a lawyer may not share his fees
with a person who is not a lawyer except where an association
between the lawyer and the other person is permitted by the laws
of the Member State to which the lawyer belongs. ”2(i The CCBE
Explanatory Memorandum elaborates this reference to MDP:
In some member states lawyers are permitted to practise
in association with members of certain other approved
professions, whether legal professions or not. The provi-

20. In 1977 and again in 1998, ABA- Section 124 of the Administration of
appointed commissions examined the Justice Act 1916, prohibits the practice
propriety of prohibitions on non-lawyer of law in partnership with non-lawyers).
ownership of legal services providers. Al¬ 22. Laurel S. Terry, German MDPs:
though both commissions recommended
Lessons to Learn, 84 Minn. L. Rev. 1547,
that the Model Rules be amended to
1560, 1563 (2000); ABA Commission On
permit lawyers to partner with non-law¬ Multidisciplinary Practice, Report To
yers to provide legal services, the ABA
The House Of Delegates (July 2000),
House of Delegates rejected these pro¬ http://www.abanet.org/cpr/mdp/mdpfmal
posals. See ABA Kutak Commission,
rep2000.htm (last visited Dec. 24, 2006).
http://www.abanet.org/cpr/mrpc/kutak_
commission.html (last visited Aug. 15, 23. ABA Commission On Multidisci¬
2006) and ABA Commission on Multidis¬ plinary Practice, Report To The House
ciplinary Practice, http://www.abanet. Of Delegates (July 2000), http://www.
org cpr/mdp/home.html (last visited Aug. abanet.org/cpr/mdp/mdpfinalrep2000.
15, 2006). htm (last visited Dec. 24, 2006).

24. Id.; Multidisciplinary Practice: Is

21. See, e.g., Solicitoi's’ Practice
Rules of 1990, Rule 7 (proscribing part¬ it the Wave of the Future, or Only a
nerships consisting of lawyers and non¬ Ripple ?, 66 Def. Couns. J. 460 (1999).
lawyers and prohibiting fee-sharing with 25. Hazard, supra note 19, at 275.
non-lawyers); George C. Nnona, Multi¬ Changes in the Australian rules have
disciplinary Practice in the International
apparently not resulted in significant
Context: Realigning the Perspective on movement towards actual establishment
the European Union’s Regulatory Re¬ of MDP. Id.
gime, 37 Cornell Int’l L.J. 115, 147
(2004) (noting that a Danish statute, 26. CCBE Rule 3.6.1.
44 LAWYER-CLIENT RELATIONSHIP Ch. 3

sions of Art 3.6.1 are not designed to prevent fee-sharing

within such an approved form of association.27
In a case decided in 2002, the European Court of Justice
(“ECJ”) considered the applicability of European Community com¬
petition law to a regulation adopted by the Netherlands Bar Associ¬
ation prohibiting lawyers practicing in the Netherlands from enter¬
ing into multi-disciplinary partnerships with accountants. 2S The
Court concluded that the rule was anti-competitive and that it is
contrary to certain applicable provisions of European Union treaty
law for a professional association of lawyers such as the Nether¬
lands bar (the Nederlandse Orde van Advocaten) to adopt such a
measure. 2y The Court further held, however, that a member state
may confer on a professional association the power to adopt such a
measure if the state reserves the power to determine the essential
rules of the profession and provides members of the profession an
effective legal remedy before courts of general jurisdiction against
decisions adopted by the professional association.3" The ECJ further
concluded that is for the national court to determine if these

conditions have been met.31

Discussion Questions:

3-1: In what ways might a legal system’s concept of the attorney-

client relationship and the lawyer’s role in society affect its
analysis of specific ethical issues? How might that concept
inform determinations as to the proper resolution of ethical
dilemmas when the lawyer has conflicting duties?

3-2: What problems might conflicting views of the lawyer-client

relationship pose for a lawyer who represents a multi-nation¬
al client operating in multiple jurisdictions? What effect, if
any, do you think continued globalization of commerce will
have on the role of lawyers in various jurisdictions? Will
differences in the role played by lawyers diminish over time?
3-3: Do you think prohibitions on MDP are necessary to protect
the independence of lawyers? Why or why not? What are the
advantages and disadvantages to a prohibition on MDP? In
what ways do you think allowing or prohibiting MDP affects
the quality and efficiency of a firm’s professional services to
clients?

and Wouters v. NOVA, 52 Case W. Res.

27. CCBE Explanatory Memoran¬
dum, Commentary on art. 3.6. 867 (2002).
29. Wouters v. Algemene Raad van
28. Wouters v. Algemene Raad van
de Nederlandse Orde van Advocten
cle Nederlandse Orde van Advocten
12002] ECR 1-01577 at H 258.
|2002| ECR 1-01577. For a more de¬ 30. Id.
tailed analysis of the Wouters decision
31. Id.
see Laurel S. Terry, MDPs, ‘‘Spinning,’’
Sec. B INITIATING AND ENDING THE RELATIONSHIP 45

3-4: How do you think prohibitions on ownership of legal service

providers by non-lawyers, including corporations with passive
investors, affect the availability and quality of legal service?
Would allowing corporate ownership likely affect lawyers’
exercise of independent professional judgment on behalf of
clients? Might the prohibition on corporate ownership and
investment in legal service providers affect the availability of
affordable legal services for low and middle income legal
consumers? Do you see any parallel between these issues and
the advent of HMOs and PPOs for medical services?

B. INITIATING AND ENDING THE LAWYER-

CLIENT RELATIONSHIP
1. Engagement and Appointment of Counsel

In many countries, principles of contract and promissory estop¬

pel govern when the lawyer-client relationship begins.32 In the U.S.
the Restatement of the Law Governing Lawyers provides:
A relationship of client and lawyer arises when:

(1) a person manifests to a lawyer the person’s intent that

the lawyer provide legal services for the person; and either
(a) the lawyer manifests to the person consent to do
so; or
(b) the lawyer fails to manifest lack of consent to do
so, and the lawyer knows or reasonably should know that
the person reasonably relies on the lawyer to provide the

services; . . ,33
Similarly, in civil law countries, such as France, prospective clients
may have enforceable duties if they rely on a lawyer’s advice and
such reliance was foreseeable.34
Most countries, including the U.S., require lawyers to accept
court appointments to represent clients absent some compelling
justification for declining appointment.33 In Japan, for example, an
attorney must not, without “due reason,” decline matters which
have been referred by government authorities pursuant to laws,
rules and ordinances.36 The ABA Model Rules require lawyers to
32. Restatement (Third) Law Gov¬ 35. In Italy, for example, a lawyer
erning Lawyers § 14; see also Profes¬ cannot refuse court appointment with¬
sional Legal Ethics: A Comparative Per¬ out justification. Similarly, in the Czech
spective 23-24 (Maya Goldstein Bolocan, Republic, a lawyer appointed by a judge
ed., 2002) [hereinafter Professional Le¬ in a civil or criminal case may not refuse
gal Ethics]. to provide legal assistance. Id. at 23.
33. Restatement (Third) Law Gov¬
36. Japanese Federation of Bar Asso¬
erning Lawyers § 14.
ciation, Basic Rules on the Duties of
34. Professional Legal Ethics, supra
Practising Attorneys, art. 80-81.
note 32, at 24.
46
LAWYER-CLIENT RELATIONSHIP Ch. 3

serve when appointed by a court unless doing so would violate the

Rules or some other law, would result in an unreasonable financial
burden, or would result in ineffective counsel because the lawyer
finds the client or the client’s cause repugnant.3.
In England, the “cab-rank” rule provides, generally, that a
barrister must accept any case offered, regardless of the barrister’s
personal views of the case or the client. The Code of Conduct
provides:

A barrister who supplies advocacy services must not with¬

hold those services:

(a) on the ground that the nature of the case is objectiona¬

ble to him or to any section of the public;

(b) on the ground that the conduct opinions or beliefs of

the prospective client are unacceptable to him or to any
section of the public;

(c) on any ground relating to the source of any financial

support which may properly be given to the prospective
client for the proceedings in question (for example, on the
ground that such support will be available as part of the
Community Legal Service or Criminal Defence Service).3*
By removing a barrister’s discretion to select clients, the cab-
rank rule seeks to separate any negative perception of the client’s
morality from the perception of the barrister. As one commentator
explains:
If lawyers had discretion to choose clients on the basis of
endorsement or agreement with the clients’ moral views,
then lawyers could conceivably share some of the blame
and public opprobrium that is directed toward the clients.
As a result, lawyers might avoid certain types of clients.
They might seek a kind of professional conscientious objec¬
tor status and refuse to participate in the wrongdoing of
accused rapists, child molesters, terrorists, communists, or
whatever class of miscreants most attracts the fear and
loathing of the public. As a result, these unpopular clients
would be left to face the power of the hostile state on their
own, without the assistance of a lawyer — the proverbial
champion of the friendless.39
However, the cab-rank rule has several exceptions. A barrister does
not have to accept a case for an insufficient fee, nor a case that she
37. Model Rule 6.2.

38. Bar Council of England and

an Et 34

In

Ju

in Sel
Le
st 98

ga
di
d hic

Wales, Code of Conduct, Rule 601.

Tvhi

Pr .

of ica
Cl 995 ion

l
if 7,

ie
edu

oRbe

ec
Hos:

L al

(2t
n
lve.

ti
00
fs

on
m

6)
tr

,
.
a
Sec. B INITIATING AND ENDING THE RELATIONSHIP 47

is not competent to handle, nor a case that conflicts with the

barrister’s existing schedule.4"
A U.S. lawyer has no ethical duty to accept indigent or unpopu¬
lar clients unless by court appointment," and even then may seek
to refuse the appointment if the lawyer finds the client or cause to
be repugnant.1" Appointment of counsel who have not sought ap¬
pointment is rare. By contrast, in some countries a lawyer can be
compelled to represent an indigent party pro bono,1:i and appoint¬
ment of counsel is one means of ensuring legal services to those
who cannot afford it." In Italy, a lawyer must provide representa¬
tion to a client upon request by the judicial authorities in compli¬
ance with the applicable laws, and it is a disciplinary offense to
refuse without justification to act as appointed counsel or to re¬
quest payment from the client for such service.4-1

2. Substitution of Counsel

In most U.S. jurisdictions, a lawyer who has taken on a client

engagement can share or substitute representation by another
lawyer not in her firm only with the client’s informed consent
confirmed in writing.4" By contrast, in some European countries,
including Austria, association or substitution of attorneys does not
require the consent of the client and may be effected without
notification to the client.1. The CCBE Code appears to acknowledge
and condone this practice, providing that:
A lawyer shall not handle a case for a party except on his
instructions. He may, however, act in a case in which he
has been instructed by another lawyer who himself acts for
the party or where the case has been assigned to him by a

competent body.,s
This difference may reflect the less client-centered concept of the
lawyer’s duties and rights in many European countries.1"
40. Bar Council of England and ted only if client confirms in writing
Wales, Code of Conduct, Rule 604. consent to arrangement and division of
41. Model Rule 6.2. fees).

42. Model Rule 6.2(c). 47. Terry, supra note 7, at 30,

43. Professional Legal Ethics, supra n. 113-114.
note 32, at 64. 48. CCBE Rule 3.1.1.
44. See id. In Lithuania, for exam¬ 49. See Terry, supra note 7, at 52
ple, the Council of the Bar has the pow¬
(“[T]hese differing views of the role of
er to appoint lawyers to provide assis¬ the lawyer might be used to explain the
tance to clients who cannot afford to
different approaches one sees to the is¬
hire a lawyer. Id. at 23.
sue of ‘substituted lawyers.’ . . . This
45. See Ethical Code for Italian Law¬ author submits that the CCBE Code
yers, art. 11. permits this substitution without client
46. See Model Rule 1.5(e) (division of consent because a scheduling conflict
fees by lawyers not in same firm permit¬ which requires a lawyer to obtain a sub-
48
LAWYER-CLIENT RELATIONSHIP Ch. 3

3. Withdrawal from Representation

U.S. jurisdictions typically specify circumstances in which with¬

drawal from representation of a client is either mandatory or
permitted. The ABA Model Rules provide that a lawyer must
withdraw when representation would require violation of a rule or

law, if the lawyer’s mental or physical health makes it unreason¬

ably difficult to provide effective representation, or if the client fires
the lawyer.00 They provide broadly for permissive withdrawal in
various circumstances, including whenever there is no material
adverse effect on the client’s interests or for other good cause.01
Once a lawyer has withdrawn, the lawyer must protect the client’s
interest by giving reasonable notice, allowing time for employment
of other counsel, and returning the client’s property.02
The circumstances in which a lawyer may withdraw from
representation of a client vary somewhat among other jurisdictions.
In China, the Lawyers Law provides narrowly that:

Once they have accepted an appointment, lawyers may not

refuse to defend or represent a client without proper
reason. However, if the subject matter of the appointment
violates the law, the client uses the services provided by
the lawyer to engage in illegal activities or the client
conceals facts, lawyers shall have the right to refuse to

defend or represent such client.0'*

By contrast, in Italy a lawyer has broad discretion to withdraw. The

Italian Code provides that a lawyer is “entitled to withdraw from

representation of a client.”51 A lawyer must provide adequate notice
to the client and take necessary steps to avoid prejudice to the

client, but the lawyer is not responsible for the client’s inability to
retain subsequent legal assistance.” The CCBE Code does not
specify grounds for permissive or mandatory withdrawal from an
engagement. It provides, however, that “[a] lawyer shall not be
entitled to exercise his right to withdraw from a case in such a way
or in such circumstances that the client may be unable to find other
legal assistance in time to prevent prejudice being suffered by the

client.”06
stitute is viewed as an issue that is the 54. Ethical Code for Italian Lawyers,
lawyer’s business, rather than the art. 47.
client’s business.”). 55. Ethical Code for Italian Lawyers,
50. Model Rule 1.16(a).
51. Model Rule 1.16(b). art. 47 H H 1-2.
56. CCBE Rule 3.1.4.
52. Model Rule 1.16(d).
53. Lawyers Law, art. 29 (P.R.C.).
Sec. C TRANSNATIONAL PRACTICE ISSUE 49

Discussion Questions:

3-5: Is there any relationship between differences among jurisdic¬

tions with regard to appointment and substitution of counsel
and withdrawal from representation, and the different con¬
cepts of a lawyer’s role in society discussed in part A?
3-6: What values and interests are promoted or inhibited by a
legal system that requires acceptance of court appointments
and exercises the right of appointment widely? Why do you
think that court appointment of lawyers who have not
sought appointment is less prevalent in the U.S. than in
some jurisdictions?
3-7: Should a lawyer be able to refuse a court appointment if the
client, the client’s cause, or the client’s position in the
lawsuit is “repugnant” to the lawyer? If so, how should
“repugnant” be defined? Should it be enough that the
lawyer seeks to avoid appointment on that ground, or should
the court inquire into the bona fide nature of the lawyer’s
feelings?
3-8: Should a lawyer be required to accept court appointment of
an indigent defendant on a pro bono basis or only when the
lawyer will be compensated? Should a lawyer’s duty to
accept pro bono appointments depend on how well-paid the
lawyer is otherwise? If compensation should be required,
should it be at the lawyer’s normal rate or at a reasonable
rate set by the government?
3-9: If allowed by the ethical rules, do you think that substitu¬
tion of counsel without the client’s consent would be accept¬
able to most clients in the U.S.? Why or why not? What does
your answer reflect about the nature of the attorney-client
relationship in the U.S. as distinguished from other legal
systems?
3-10: As long as a client is able to secure substitute counsel in
time to avoid prejudice resulting from any lapse in repre¬
sentation, is there any reason not to allow a lawyer’s
withdrawal from representation? Should the lawyer be re¬
quired to show some good cause in addition? Why or why
not?

C. TRANSNATIONAL PRACTICE ISSUE— ASSO¬

CIATING LAWYERS IN A FOREIGN JURIS¬
DICTION
As in the U.S., lawyers in most jurisdictions are subject to a
duty of competence07 and may be subject to civil liability for failing

57. See, e.g., Ethical Code for Italian out his professional duties with care.”);
Lawyers, art. 8 (“The lawyer must carry National Bar Council of France, Har-
50 LAWYER-CLIENT RELATIONSHIP Ch. 3

to meet that standard. ” When foreign law is relevant to a represen¬

tation, the duty of competence includes acquisition of necessary
information regarding that law or association of counsel who pro¬
vides the necessary foreign law expertise. j!l Advancement of a
client’s interests may also require that legal actions be taken in a
foreign jurisdiction in which the lawyer is not admitted to practice.
Accordingly, a lawyer who represents clients with interests that
cross national boundaries must recognize the limits of her compe¬
tence in advising or representing such clients, and may often need
to associate foreign counsel for consultation regarding the relevant
foreign law or to represent that client’s interests in jurisdictions in
which the lawyer is not licensed and/or competent to practice. What
responsibilities does the lawyer in such circumstances have to
assure the competence of the associated foreign lawyer? What must
she do by way of “due diligence” before associating the foreign
lawyer? Must she monitor the foreign lawyer after that lawyer is
engaged?

The ABA Model Rules do not address this issue directly. The
comment to Rule 1.1 (“Competence”) does provide generally, how¬
ever, that “[cjompetent representation can ... be provided through
association of a lawyer of established competence in the field in
question.”'’1' Case law establishes that U.S. lawyers are required to
exercise reasonable care when referring a client to a foreign lawyer
or retaining a foreign lawyer/’1 This generally includes verifying the
foreign counsel’s competence and/or properly supervising foreign
counsel.h2
monised Practice Rules, art. 1.3 (“[Law¬ 59. Cf. Rekeweg v. Federal Mutual
yers] shall owe to their clients a duty of Ins. Co., 324 F.2d 150, 152 (7th Cir.
competence as well as of dedication, dili¬ 1963); In re Roel, 144 N.E.2d 24 (N.Y.
gence and care.”); Canadian Bar Associ¬ 1957) (holding that a lawyer has a duty
ation, Code of Professional Conduct, ch.
to inform herself of foreign states’ laws);
II, Rule 1 (“The lawyer owes the client a Degen v. Steinbrink, 202 A.D. 477, 481
duty to be competent to perform any (N.Y. App. Div. 1922) (same); Model

legal services undertaken on the client’s Rule 1.1, cmt. 4 (“A lawyer may accept
behalf.”). representation where the requisite level
of competence can be achieved by rea¬
ex to ci li ma di
p vi ab yS ff sonable preparation.”).
ho os am l ju il ee ee.r,
we ur on r i t g. 60. Model Rule 1.1, cmt.[2|.
Pr v e Lge i
Etsd y su no, 32,
of er ga hiic pr te ,
at e2s7s , (“ En l c
fos,tioex a ba 61. See, e.g., Wildermann v. Wach-
te iao In s gl
ol a ma r nbsae.m he lerri
nnda pl l tell, 149 Misc. 623, 624-25 (N.Y. Sup.
r
ac s l icf nd n y
a e d o galsl¬
iotr , e dv , ut y 1933).
co o gl ic s
of cuon bu ar rs no ig an e fo icdo
r en
utra t e t en s 62. See Bluestein v. State Bar, 529
du tt,bhl oc in cto we Fr la ¬
ct aet cu ur ra en w¬ P.2d 599, 606-07 (Cal. 1974); Tormo u.
ye on th ros h t. bla cih
l ac
th an r
e ¬
cors to est er lad fo e ne abl Yormark, 398 F.Supp. 1159, 1170
rd, at w, r gl e
(D.N.J. 1975); see also Ethics Comm. Of
Ge i cl ut als ar ab to igre
r ng ie o o e le enco
da ma fnots brry of pr ceve the L.A. County Bar Assoc., Formal Op.
ma n r ea o fe .r 426 (1984).
du ge ch ss
ti io
es s na
.” l
).
Sec. C TRANSNATIONAL PRACTICE ISSUE
51

The CCBE Code provides that “|aj lawyer shall not handle a
matter which he knows or ought to know he is not competent to
handle, without co-operating with a lawyer who is competent to
handle it.”6'* The
CCBE Explanatory Memorandum acknowledges
that this is “a principle which is of particular relevance in cross-
border activities, for example, when a lawyer is asked to handle a
matter on behalf of a lawyer or client from another state [that is,
country] who may be unfamiliar with the relevant law or practice,
or when a lawyer is asked to handle a matter relating to the law of
another state with which he is unfamiliar.”61
Selecting and engaging counsel in a foreign country may pres¬
ent substantial practical difficulties. This will be especially true for
the practitioner who does not engage regularly in cross-border
practice and has not had the opportunity to establish relationships
with trusted foreign counsel. One commentator provides this useful
guidance for a lawyer confronted by issues of foreign law:

Once lawyers recognize issues of foreign law and deter¬

mine that they are not competent to advise their clients on
the foreign law matters, they should: (1) advise their
clients to retain foreign counsel; (2) select and retain
foreign counsel; (3) supervise and monitor the foreign
counsel; and (4) assist the clients in understanding the
advice of the foreign counsel.

* * *

Often, the U.S. lawyer will be justified in assuming the

correctness of the advice of foreign legal counsel, after
determining the counsel’s qualifications and monitoring
the counsel’s work. If so, the U.S. lawyer may want to
incorporate such advice when directly advising the client.
However, unless the U.S. lawyer clearly advises the client
that the lawyer’s advice incorporates foreign counsel’s
opinions, a court may find that the U.S. lawyer is responsi¬
ble for the foreign lawyer’s advice and, arguably, falls
short of the standard of competence owed to the client ....
The importance of a U.S. lawyer’s isolating a foreign
lawyer’s opinion becomes even greater when the U.S.
lawyer anticipates that third parties might rely on the U.S.
lawyer’s opinion. A type of disclaimer clause could include
the following: “In rendering the opinions expressed in
paragraphs - , we have relied [solely] on the opinion of —
insofar as such opinions relate to - law, and we have
63. CCBE Rule 3.1.3. 64. CCBE Explanatory Memoran¬
dum, Commentary on art. 3.1.3.
52 _ LAWYER-CLIENT RELATIONSHIP Ch. 3

made no independent examination of the laws of such

jurisdiction.”65
Referrals for advice on foreign law may also expose the refer¬
ring lawyer to discipline for violation of the rules against the
unauthorized practice of law. In Bluestein u. State Bar, the Califor¬
nia Supreme Court suspended an attorney for six months for
referring a client for advice on Spanish Law to an attorney who was
not licensed in California.66

Ten years after the California Supreme Court’s decision in

Bluestein, the Ethics Opinion Committee for the Los Angeles Coun¬
ty Bar was asked for an opinion on whether a California attorney
could ethically employ an Iranian attorney not licensed to practice
in California to consult on Iranian law and act as a Farsi transla¬
tor.'" The Committee determined that such employment was per¬
missible subject to the following conditions: 1) the Iranian lawyer
must limit his role to rendering assistance to the California lawyer,
with the California lawyer maintaining responsibility for advising
clients concerning the matters on which the Iranian lawyer worked;
2) the California lawyer must not communicate in any way to
clients or the public that the Iranian lawyer is acting as a lawyer; 3)
the California lawyer must take steps to assure himself of the
accuracy of the Iranian lawyer’s advice; and 4) the California
lawyer must bill clients for work by the Iranian lawyer and make
sure that compensation of the Iranian lawyer does not violate other
ethical prohibitions, including the rules against sharing legal fees

with a non-lawyer.hS
Under Rules of Court adopted subsequent to the decision in
Bluestein and the Los Angeles County Bar opinion, a lawyer li¬
censed to practice in a foreign jurisdiction may now practice in

California as a Registered Foreign Legal Consultant (“RFLC”).69 An

RFLC must agree to be subject to the same duties as a member of

65. Robert E. Lutz, Ethics and Inter¬ 68. Id. at 130.

national Practice: A Guide to the Profes¬ 69. Cal. R. of Ct. 988; see also In re
sional Responsibilities of Practitioners , Adoption of Proposed Rule 988, 737 P.2d
16 Fordham Int’l L.J. 53, 68 n.53, 82-83 768, *1 (Cal. 1987) (Bird, C.J., dissent¬
(1992) (footnotes omitted). ing) (noting that the purpose of Rule
66. Bluestein v. State Bar, 529 P.2d 988 is to “fosterll the practice of law by
599, 606-08 (Cal. 1974); cf. El Gemayel foreign lawyers in California and facili-
tat[e] the implementation of a reciprocal
v. Seaman, 533 N.E.2d 245, 248-49
(N.Y. 1988) (holding that a foreign law¬ arrangement in other countries”); Lutz,
yer did not practice law in New York supra note 65, at 87 n.76 (“Interesting¬
when he telephoned client and her ly, and perhaps evidencing some of the
motivation for its adoption, Rule 988
daughter in New York to discuss prog¬ became effective the day after Japan
ress of a legal proceeding in Lebanon).
adopted its rules allowing foreign law¬
67. Ethics Comm. Of the L.A. Coun¬ yers to practice in Japan as gaikokuho
ty Bar Assoc., Formal Op. 426 (1984).
jimu bengoshi.”).
Sec. C TRANSNATIONAL PRACTICE ISSUE
53

the state bar.70 Even after registration, a RFLC’s ability to practice

law is limited; RFLCs cannot appear in court to represent a client
and cannot prepare documents affecting U.S. residents in certain
areas of law, including real estate, family law, and wills.'1 Because
RFLCs must be admitted to practice in another country, they may
be subject to the rules of two jurisdictions, and choice of law rules
will govern any misconduct.
A U.S. lawyer may also have duties to a U.S. court to properly
represent proceedings in a foreign jurisdiction and may need to
consult with competent foreign counsel for that purpose. In the
following case, a lawyer was sanctioned by the Ninth Circuit for
misrepresenting the judgment of a Mexican court despite the fact
that he submitted the Mexican judgment to the court both in
Spanish and in an accurate English translation and had relied on
an interpretation of the judgment by a Mexican lawyer.

IN RE DISCIPLINARY ACTION DAVID L. CURL

803 F.2d 1004 (9th Cir. 1986).

Before NELSON, CANBY and JOHN T. NOONAN, Jr., Circuit

Judges.
NOONAN, Circuit Judge.
David L. Curl is a 34 year old lawyer, a partner in a small firm in
Tucson, Arizona. . . .
On July 22, 1986, this court issued an order to David L. Curl that
he show cause why sanctions should not be imposed on him for a
misrepresentation made by him as counsel for Johnny E. Henry in
the case of International Harvester Credit Corporation (Harvester)
v. Henry, decided by this court July 22, 1986. David L. Curl
responded with an affidavit seeking to excuse his misrepresenta¬
tion. We now impose a sanction.
Background. On September 8, 1980, Henry executed a contract
with Wes-Tex Equipment Company for the purchase of a drilling
rig and water tank truck. Wes-Tex assigned the contract to Har¬
vester. Henry paid $49,962.54 as a down payment and financed the
remaining balance of $283,121.09. When Henry purchased the
equipment he told Wes-Tex that he needed Bills of Sale and
Manufacturer’s Statements of Origin to register the equipment in
California. Wes-Tex supplied these documents. He made payments
totaling $45,355.51 on the equipment, but in August 1981, default¬
ed. The next month he secreted the equipment through a sham
sales transaction, and took it to Mexico. Before the Third Civil

70. Cal. R. of Ct. 988(c)-(d). 72. See Model Rule 8.5.

71. Cal. R. of Ct. 988(d).
54 LAWYER-CLIENT RELATIONSHIP Ch. 3

Court of Sonora, Harvester sought to foreclose upon Henry. That

court, basing its decision solely on Henry’s answer, which alleged
he had made payment in full, decided in his favor on March 24,
1983. On appeal before the Supreme Court of Sonora, the judgment
was, in the words of that court, “modified” (“se modifica”). The
foreclosure action (“la via ejecutiva”) was found to have failed
because of Harvester’s failure to tender a return of the down
payments. Harvester was condemned to pay the costs of the trial.
All rights of Harvester were preserved to be asserted as appropriate
(“por lo que se dean a salvo sus derechos para que los haga valer en
la via y forma correspondiente”).
After the decision by the lower Mexican court and before the appeal
was heard, Harvester served Henry in the United States. Henry
sought summary judgment asking that the lower court decision in
Mexico be accorded comity. Judge Alfredo C. Marquez denied this
motion on May 31, 1984. Trial was scheduled for October 10, 1984.
The day before the trial David L. Curl, Henry’s counsel, presented a
certified copy of the decision of the Supreme Court of Sonora in
Spanish. In open court, Curl told Judge Marquez that the decision
“affirms the lower court’s order.” The trial proceeded before a jury,
which gave a verdict in favor of Harvester.
On appeal, Curl contended that there should have been no trial
because the lower Sonora court decision should have barred Har¬
vester’s suit. “The Appellee here brought his original action in the
Mexican court system and lost,” his brief asserted.
This court found that no genuine issue was presented by Henry’s
appeal; that Harvester’s rights had been expressly preserved by the
decree of the Supreme Court of Sonora; and that Henry’s appeal,
based on the assertion of a Mexican judgment in his favor, had
rested on a mischaracterization of the judgment. Attorney’s fees
and double costs were awarded Harvester against Henry. We then
issued the show cause order directed to the more serious question
of Curl’s responsibility for the appeal.
Curl’s Response. On August 18, 1986 Curl filed an affidavit in
which he swore that, when he first received the judgment of the

Supreme Court of Sonora, he “contacted his client,” who told him

that Raul Encinas, a Mexican lawyer from Hermosillo, had told

Henry that the judgment “upheld the trial court in its entirety”;
that Curl then had the judgment translated; that he then saw that
it appeared that “the appeal had been dismissed without preju¬
dice”; that Curl again contacted Henry who in turn contacted
Encinas, who continued to maintain that Henry “had won the
appeal in its entirety”; that after judgment against Henry in the
federal district court and before taking this appeal, Curl spoke to
another Mexican lawyer for Henry, Arturo Serrano of Aqua Prieta
Sec. C TRANSNATIONAL PRACTICE ISSUE 55

and that Curl speaking in ‘‘broken Spanish” and Serrano in “bro¬

ken English,” Serrano assured him that the Sonora judgment was
entirely in Henry’s favor, that “the bar to foreclosing on the
property was bar to gaining possession of the property,” and that
Serrano would so testify if called as a witness. In summary, Curl
swore that he and Henry were “misled by at least two Mexican
attorneys.”
Curl further pointed out that he had submitted the Sonoran judg¬
ment in Spanish and an accurate English translation of it to this
court, leaving this court “free to decide what the interpretation of
the Mexican Judgment” was. He added that it was his “duty to his
client to represent him, within the bounds of ethics, and to take a
position which may be sustained by evidence.”
[11 Discussion. A lawyer’s duty to an appellate court consists in
more than not putting false evidence before the court. Curl com¬
plied with the elementary obligation of not falsifying the record by
providing the Sonoran judgment in Spanish with an accurate En¬
glish translation. But Curl’s obligations were greater. He had a
duty not to misrepresent the evidence in argument before the
court.

Curl in his brief for Henry stated that “the Mexican judgment had
been rendered in favor of Defendant-Appellant Johnny Bo Henry in
the appropriate amount of $370,000.” Appellant’s Brief, p. 5. Curl
noted that the judgment had then been taken to a higher Mexican
court. His appeal to our court was from the district court’s failure
“to recognize the Mexican judgments.” Appellant’s Brief, p. 2.
In his “Statement of Facts and Issues,” Curl cited the words of the
lower Mexican court that Henry had “payed the price of the
transaction.” He then stated that the Supreme Court of Sonora had
“affirmed the lower court.” Appellant’s Brief, p. 4. In his “Sum¬
mary of Argument,” Curl began: “Since International Harvester
voluntarily brought its action before the Mexican court system and
lost, the doctrines of comity, collateral estoppel and res judicata
should bar an attempt to relitigate the matter in the U.S. court
system.” Appellant’s Brief, p. 5. The rest of the brief was a
development of this position which rested squarely on the bar
created by the judgment of the Supreme Court of Sonora.

Curl reiterated his basic position that “the Mexican Court” had
“entered its finding that the Defendant had paid for the property
and absolved Defendant of the claims of Plaintiff.” Appellant’s
Brief, p. 8. This judgment, Curl reported, “had been made final by
a decision of the Third Section of the Supreme Tribunal of Justice
of Hermosillo (akin to state supreme court).” Appellant’s Brief, p.
10. “As a result,” he continued, “the Mexican proceedings are
conclusive — Plaintiff was barred by the doctrine of res judicata
56 LAWYER-CLIENT Ch. 3
RELATIONSHIP

from relitigating his claim here.” Id. His 26 page brief presented
variations on this theme. At no point did Curl in any fashion
indicate that there was ambiguity or uncertainty in his reading of
the judgment of the Supreme Court of Sonora. His assertions were
completely affirmative and unqualified. Harvester, he maintained,
was absolutely barred by the Mexican judgment against it. At oral
argument, Curl took the same line.

If by some piece of legal ingenuity or quirk of Mexican law, the

Sonoran judgment could have been construed as a judgment on the
merits, it was Curl’s duty to explain the inference by which one
could reach this conclusion .... When Curl chose to state as a fact
what was at the best a guess and a hope, he engaged in misrepre¬
sentation.

Curl misrepresented the judgment on which his appeal depended. If

we accept his affidavit, he did so in part because of statements
made to him by his client, Henry. Curl had no reason to believe
Henry, an oil driller, on a matter of law. Henry’s basic story, that
he had paid Harvester, was disbelieved by the jury in this case, and
was wholly implausible. At oral argument Curl acknowledged that
Henry’s story was “wild.” We do not address here the duty of a
lawyer never to put on the witness stand a client he has reason to
know is committing perjury. See Nix v. Whiteside, 475 U.S. 157, 106
S.Ct. 988, 995, 89 L.Ed.2d 123 (1986). But the implausibility of
Henry’s story bears on the reasonableness of Curl relying on him.
No reasonable lawyer would have taken Henry’s word for what
another lawyer said was the meaning of a foreign judgment.

Curl’s other reliance was on a lawyer with whom he conversed with

difficulty because neither could speak the other’s language fluently.
On a matter of central importance to his case it was reckless for
Curl to depend on his understanding of the broken English of
Serrano responding to questions framed by him in broken Spanish.
Ordinary prudence required Curl to get a written opinion of the
meaning of the judgment, especially so when his own reading of it,
like ours, showed him that the judgment was procedural only.
Recklessly, Curl chose to hear what he wanted to hear and charged
ahead.

Curl’s excuses do not relieve him of responsibility for having

brought an appeal that should never have been brought, for sub¬
jecting Harvester to the burden of appellate litigation, and for
having put this court to the task of reading, analyzing, and judging
his baseless arguments. Curl’s conduct has been professionally
irresponsible in violation of the standards of legal ethics and his
duty to this court. Sanctions are appropriate and indeed re¬
quired ....
Sec. C TRANSNATIONAL PRACTICE ISSUE 57

A majority of this court believes the public admonishment of this

opinion is sufficient sanction. The majority is willing to believe that
Curl did not intentionally attempt to perpetrate a fraud on this
court. There is no evidence that Curl has been subject to prior
disciplinary proceedings. The court will not hesitate to sanction
future negligence with substantial monetary fines, suspension, or
disbarment from practice before our court.

Discussion Questions:

3-11: The court acknowledges that Curl provided the Mexican

court judgment at issue “in Spanish with an accurate En¬
glish translation.” Why was this not enough to discharge his
duty of professional competence?
3-12: The court notes that Curl relied for his misstatement on the
effect of the Mexican judgment, on his client’s misrepresen¬
tations, and on communications with Mexican counsel in
broken English and broken Spanish. What if Curl had ob¬
tained a written opinion from Mexican counsel that made
the same misstatements regarding the effect of the Mexican
judgment? Would Curl have still been subject to discipline?
Should he have been?

3-13: In general, what factors should a court take in to account in

determining if a lawyer has discharged her professional
responsibilities with regard to consultation regarding foreign
law? To what degree should a lawyer be required to investi¬
gate the background of a foreign lawyer referred by a reputa¬
ble source before associating that lawyer to render an opin¬
ion or do work on behalf of a client?

3-14: Should the reasonableness of a lawyer’s efforts to determine

a matter of foreign law depend at all on what is at stake in
the litigation or transaction? Should higher stakes require a
higher degree of due diligence? Could high standards of due
diligence in matters with low stakes make it impractical to
associate foreign counsel?
 Chapter 4

COMPENSATING LAWYERS

A. REGULATION OF FEES
As in the U.S., lawyers in most jurisdictions have an ethical
duty, beyond principles of contract formation, to charge only fully
disclosed fees that are “fair and reasonable.”1 The CCBE Code
provides that “[a] fee charged by a lawyer shall be fully disclosed to
his client and shall be fair and reasonable.”2 Many foreign codes,
like the ABA Model Rules of Professional Conduct,3 identify factors
to be considered in establishing an hourly fee or measuring the
reasonableness of a feed Legal systems vary significantly, however,
in what a reasonable fee may mean in practice and how it is

client); International Bar Association,

1. See, e.g., CCBE Rule 3.4.1 (“A fee
charged by a lawyer shall be fully dis¬ International Code of Ethics, Rule 17
closed to his client and shall be fair and
(“consideration of the amount involved
reasonable.”). in controversy and the interest of it to
2. Id. the client, the time and labour involved
and all other personal and factual cir¬
3. See Model Rule 1.5(a).
cumstances of the case”); Canadian Bar
4. See, e.g., Bar Council of England Association, Code of Conduct, ch. XI,
and Wales, Code of Conduct, Rule 604 cmt. 1 (whether a fee is “fair and rea¬
(examining the complexity, length and sonable” depends on factors such as the
time and effort required and spent, diffi¬
difficulty of the case; the barrister’s abil¬
ity, experience and seniority; and the culty and importance of the matter,
expenses which he will incur); National whether special skill or service has been
Bar Council of France, Harmonised required, customary charges of other
Practice Rules, art. 11.2 (examining the lawyers of equal standing, amount in¬
time spent on the matter, the research volved or the subject matter, results ob¬
involved, the nature and complexity of tained, tariffs or scales authorized by

the matter, the importance of the inter¬ local law, and special circumstances such
ests involved, the incidence of expenses as of other employment or uncertainty
and overheads of the law firm, the or reward); Japanese Federation of Bar
standing, titles, seniority, experience Associations, Rules Concerning Attor¬
and specialization of the lawyers in¬ ney’s Fees, art. 2 (“fees shall be appro¬
volved, the advantages and results priate and commensurate with economic
achieved for the benefit of the client, benefits, complexity of the matter, time
and the particular circumstances of the
and labor required, etc.”).

58
 Sec. A REGULATION OF FEES 59

regulated, including whether they sanction or prohibit contingent

fees, on the one hand, or fee schedules, on the other.

1. Contingent Fees

U.S. jurisdictions allow “contingent fees” — fees dependent on

the outcome of the matter and typically calculated as a percentage
of recovery — subject to some restrictions and limitations. Contin¬
gent fees typically are not allowed in certain domestic relations
matters (payment contingent on securing divorce, alimony, or prop¬
erty settlement) or for representing a defendant in a criminal case,-’
and a contingent fee arrangement must be fully disclosed in a

fees are subject to the overarching requirement that they be “rea¬

sonable.” Such fees are justified as providing economic incentives
for lawyers to represent clients with meritorious cases who would
otherwise not be able to afford representation.'
Canada also allows contingent fees in some cases, but subject
to established limitations on the lawyer’s percentage of recovery.6
In British Columbia, contingent fees must not exceed one-third of
the recovery in a personal injury or wrongful death case arising
from a motor vehicle accident, and 40 percent in other personal

held that a contingent fee agreement did not violate the laws
against champerty.1" Subsequently, the Ontario Rules of Profession¬
al Conduct were amended to reflect that contingent fees are al¬
ient.5 6
lowed.11 Some Canadian provinces require a written contingent fee
writing
signed
by the
5. Model Rule 1.5(d).
Like all fessional Ethics Applicable to the Cross-
6. Model Rule 1.5(c). attorneys’
Border Practice of Law 188 (Edwin God¬
fees, contingent
frey ed., 1995) [hereinafter Law Without
7. See, e.g., Virginia G. Maurer, At¬ Frontiers],
torney Fee Arrangements: The U.S. and
Western European Perspectives, 19 Nw. 10. McIntyre Estate v. Ontario,
J. Int’l L. & Bus. 272, 294-95 (1999); [20021 61 O.R.3d 257 (Can.); see also
Angela Wennihan, Comment, Let’s Put Raphael Partners v. Lam, [2002] 61
the Contingency Back in the Contingency
O.R.3d 417 (Can.) (holding a contingen¬
Fee, 49 SMU L. Rev. 1639, 1649-50
(1996). cy fee of 15 percent for the first $1
million recovered and 10 percent for
8. See Canadian Bar Association, each additional $1 million recovered, for
Code of Professional Conduct, ch. XI, a total recovery of $2.75 million, was a
5 8
cmt. 9'
10 (“ It is proper for the lawyer to reasonable fee).
enter into an arrangement with the
client for a contingent fee, if the fee is 11. See Ontario Bar Association,
fair and reasonable and the lawyer ad¬ Rule of Professional Conduct 2.08(3); see
heres to any legislation, rules of court or also Canadian Bar Association, Code of
local practice relating to such an ar¬ Professional Conduct, ch. XI, cmt. 10,

rongful rangement.”). n.12 (“For many years, Ontario was the

only jurisdiction in North America in
9. The Law Society of British Colum¬
death
bia, Rule 8-4; Kluwer Law Int’l & Int’l which contingent fees were prohibit¬
Bar Ass’n, Law Without Frontiers: A ed.”).
Recently,
Comparative Survey of the Rules of Pro¬

an
Ontario
appellate
60 COMPENSATING LAWYERS Ch. 4

agreement, notice to the client of the right to judicial review of the

fee, and filing of the agreement with the court.12 Similar to the
U.S., some provinces prohibit contingent fees in criminal proceed¬
ings and in certain family law cases.13
Contingent fees have traditionally been considered unethical in
many legal systems, however, and often are still prohibited.11 The
prohibition of contingent fees is consistent with a less client-
centered concept of the lawyer’s duties and rights typical of civil
law countries. By making her fee dependent on the outcome in the
case, the contingent fee lawyer aligns herself squarely with the
interests of the client in a way inconsistent with the civil law
concept of the lawyer-client relationship. As one commentator
explains:
The prohibition of contingency arrangements in the Civil
Code systems is grounded in the idea of professional inde¬
pendence. Moreover, the Civil Code’s rejection of contin¬
gency arrangements may stem from its view of the law¬
yer’s professionalism as consisting of a balance between
the social mission of protecting the client, and the duty to
society at large. Under such a system, professionalism is
viewed as depending on being separate from a client.
Therefore, if a lawyer’s remuneration were dependent on
the success of his client’s case, the scales would be tipped
in favor of the client and the ideal of professionalism would
not be achieved.

.... [Contingent fees in America do not raise the

questions of professional independence that they raise in
Civil Code countries. In those systems, the lawyer who
takes contingent fees is tainted because he becomes
aligned with the client rather than the courts. American
lawyers, on the other hand, are encouraged to align them¬
selves with their client. Only through such alignment can

the attorney most zealously advocate his client’s position.

Zealous advocacy is at the heart of the American search for

12. Wennihan, supra note 7, at 1662. to make any agreement in which com¬
pensation for professional services is
13. See, e.g., Ontario Bar Associa¬ based on a certain percentage of the
tion, Rule of Professional Conduct
2.08(3) (“[Elxcept in family law or crim¬ disputed property or the value of the
inal or quasi-criminal matters, a lawyer controversy.”); Bar Council of India,
may enter into a written agreement . . . Rules Governing Advocates, Rule 20
(“[a|n advocate shall not stipulate for a
that provides that the lawyer’s fee is fee contingent on the results of litigation
contingent, in whole or in part, on the
successful disposition or completion of or agree to share the proceeds thereof’);
the matter for which the lawyer’s ser¬ National Bar Council of France, Har¬
vices are to be provided.”). monised Practice Rules, art. 11.3 (“Law¬
14. See, e.g., Law Without Frontiers, yers are prohibited from fixing their fees
supra note 9, at 97; Ethical Code for by reference to a quota litis agree¬
Italian Lawyers, art. 45 (“It is forbidden ment.”).
Sec. A REGULATION OF FEES
ftl

the truth. Consequently, contingent fees do not raise “in¬

dependence” issues in America.15
Contingent fees have, however, also historically been prohibit¬
ed in the United Kingdom and other common law jurisdictions. An
opinion in a 1975 British case, summarized the ethical objections to
contingent fees:

First, in litigation a professional lawyer’s role is to advise

his client with a clear eye and an unbiased judgment.
Secondly, a solicitor retained to conduct litigation is not
merely the agent and adviser to this client, but also an
officer of the court with a duty to the court to ensure that
his client’s case, which he must, of course, conduct with
the utmost care of his client’s interests, is also presented
and conducted with scrupulous fairness and integrity. A
barrister owes similar obligations. A legal adviser who
acquires a personal financial interest in the outcome of the
litigation may obviously find himself in a situation in
which that interest conflicts with those obligations."’
As recently as 1995, in Aratra Potato Co. Ltd. v. Taylor Joynson
Garrett, a British court struck down as unenforceable an agreement
that a solicitor would reduce his fee by 20 percent if the case were

lost.'7
While continuing to disallow fees based on a percentage of
recovery, some European countries now allow premiums for suc¬
cess. These “uplifts” or “success fees” are typically based on a
percentage of hourly fees and are thus similar to fee “multipliers”
in U.S. attorneys’ fees litigation.18
As a result of a series of reforms in the 1990s, the United
Kingdom now allows a solicitor to enter into a “conditional” fee
arrangement, a “restrained form of the U.S. contingency fee.”19
Similar to the contingent fee agreement exceptions in the United

15. Olga M. Pina, Systems of Ethical

Regulation: An International Compari¬ fo Ch th Gu Fo a Tr
e ad t
son, 1 Geo. J. Legal Ethics 797, 813-815 tirm an
g Br aLr
e d Sry i¬he
(1988) (footnotes omitted). o i it g :a s
Ch n- ngis toi Be l Mo te Mo
a s m, d
16. Wallersteiner v. Moir (No. 2), Wi ll Bou B h co T
meoo Am re er 82
th en nd ec e n
[1975] Q.B. 373, 402, [1975] 1 All E.R. A. o ge J. Joum 19 at 73ri No
B ut , ni 9 . c t
849, 867-68. so .A we .nign fa 6, of th coan ab
li . re vo e nd , ly
17. 4 All E.R. 695 (Q.B. 1995). fe cit ag wh r ba it w ,
e ors re il rr io er
mo sekm Ba e i we na c e
18. See, e.g., Pennsylvania v. Dela¬ s te r l on
ce re theeptnt co rr
i f e w or s e ex ¬
ware Valley Citizens’ Council for Clean r a is n st es ul ac
Air, 483 U.S. 711, 718, n.4 (1987) (not¬ er ned th t ca,ldi dit ienr ob d fe¬
ba e .ff io s ta es
Li i
sa
ing that “[nlumerous Courts of Appeals,
fr te so
l caus nabla ianr pr
r ie oh
acting under fee-shifting Ststatutes, have it om fr ici su lct r
lyi ist to rec ng ifbee
an e t
approved an upward adjustment sk of the an d th om coors ing en fe er w o v n o b ¬s, a
y,B d at nd, t s es s ul er t e
o
lodestar to compensate for the ri risk of pr su i ti fo le ai d Id at 73
ti 74 op bs on r ga d. . -
not prevailing.”). shL . er ti al l
eg tu
al te
Re
¬
62 COMPENSATING LAWYERS Ch. 4

States, conditional fee agreements are permitted except in family

and criminal matters."" A conditional fee agreement consists of an
hourly fee and a premium or “uplift” for success, which is typically
a percentage of the hourly fee that the lawyer and client agree on in
advance.21 The uplift is not tied directly to the damage award, and
the Law Society has recommended it should not be greater than 25
percent of the recovered damages.22 Although, the most recent
model fee agreement appears to abandon this 25 percent recom¬
mendation, some solicitors and barristers may still adhere to it as a
close analog to the American contingency fee.23

France also allows a success premium or “honoraire” similar to

the British uplift. While fees calculated as a percentage of the
amount recovered for the client are prohibited, the lawyer may
agree ahead of time to additional fees to be granted to the lawyer
based on success in the representation.21 A similar success premi¬
um, the “palmario,” is allowed in Italy. 2;>
The CCBE Code, which is intended to articulate consensus
principles among member countries, prohibits fees based on a
percentage of recovery, which it defines as “pactum de quota litis:”
3.3.1. A lawyer shall not be entitled to make a pac¬
tum de quota litis.

3.3.2. By “pactum de quota litis” is meant an agree¬

ment between a lawyer and his client entered
into prior to a final conclusion of a matter to
which the client is a party, by virtue of which
the client undertakes to pay the lawyer a share
of the result regardless of whether this is rep¬
resented by a sum of money or by any other

20. Access to Justice Act, 1999, c. 22, Injury Claims, available at http://www.
§ 27(5X1) (U.K.). lawsociety.org.uk/professional/conduct/
21. Maurer, supra note 7, at 294- guidance/view = article. law?POLICYID =
295. 175772. (omitting any discussion of ap¬
22. Stephen E. Kalish, The English propriate percentage of a success fee ex¬
Costs War, 2000-2003, and a Moment of cept that it should not exceed 100% of
the normal fee).
Repose, 83 Neb. L. Rev. 114, 166 n.52
(2004) (“The Law Society developed a 24. Law Without Frontiers, supra
model conditional fee agreement that note 9, at 75; Maurer, supra note 7, at
provided that no success fee should be 319.
greater than maximum of twenty-five
25. Ethical Code for Italian Lawyers,
percent of the recovered damages.”).
23. Id. (“Not surprisingly, many so¬ art. 45 (“It is permissible to stipulate in
licitors used this twenty-five-percent fig¬ writing that extra compensation will be
ure as a matter of course. One commen¬ paid in the event a matter is resolved
tator has suggested that in practice this favorably, provided that such extra com¬
was an indirect American-style contin¬ pensation is within reasonable limits

gency fee.”); see also Law Society Model and is justified by the results ob¬
Conditional Fee Agreement for Personal
tained.”).
 63
Sec. A REGULATION OF FEES

benefit achieved by the client upon the conclu¬

sion of the matter. '*’
The British uplift and the French and Italian success premiums,
while contingent on the result of the representation, do not fall
within the CCBE definition of the prohibited pactum de quota litis,
since they are not directly proportionate to monetary recovery in
the case.

The CCBE Code also excludes from its prohibition “fees to be

charged in proportion to the value of a matter handled by the
lawyer if this is in accordance with an officially approved fee
schedule or under the control of competent authority having juris¬
diction over the lawyer.”27 The CCBE Explanatory Memorandum
elaborates on the intention of this exception:

These provisions reflect the common position in all mem¬

ber states that an unregulated agreement for contingency
fees (pactum de quota litis) is contrary to the proper
administration of justice because it encourages speculative
litigation and is liable to be abused. The provisions are not,
however, intended to prevent the maintenance or introduc¬
tion of arrangements under which lawyers are paid accord¬
ing to results or only if the action or matter is successful,
provided that these arrangements are under sufficient
regulation and control for the protection of the client and
proper administration of justice.2*
What is “sufficient regulation” is unclear. By comparison, no
U.S. jurisdiction simply allows contingent fees without regulation.
As noted above, it is typical in U.S. jurisdictions that contingent
fees are not allowed in domestic relations matters or for represent¬
ing a defendant in a criminal case.21' Furthermore, contingent fees
must be specified in detail in a writing signed by the client, and are
subject to the overarching requirement that the total fee is “rea¬
sonable.”'5" Nor is it clear if “according to the results” is meant to
condone a fee based on a percentage of recovery where there is
“sufficient regulation.”
In Japan, bar rules provide a schedule of standard retainer fees
and success fees on a graduated scale based on the amount at issue
in the representation. The more that is at issue, the lower the fee
percentage. According to one survey, the standard fee in civil cases
involving 500,000 Yen or less is a 15 percent retainer and a 15
percent success fee, and there is a 2 percent retainer and 2 percent
29. Model Rule 1.5(d).
26. CCBE Rule 3.3 (“Pactum de
Quota Litis”). 30. Model Rules 1.5(a) & (c).
27. CCBE Rule 3.3.3.
28. CCBE Explanatory Memoran¬
dum, Commentary on Article 3.3.
 COMPENSATING LAWYERS Ch. 4

success fee in cases with a value in excess of 1 billion yen.31 The fee
schedule for the Daini Tokyo Bar Association in 1993 provided a
range of percentages from a 7 percent initial fee and 7 percent
success fee, when the amount in controversy was $50,000 to
$100,000, to 3 percent for amounts in controversy over
$1,000,001. These schedules are only guidelines, and retainer and
success fees may be negotiated based on various factors, including
the importance of the case and past relationships. Fees are paid at
each stage of a case, such that a new percentage will be agreed on
for the appeal of a matter, even though the same amount remains
in controversy. While the Japanese “success fee” is a form of
contingency fee, it generally does not approach the amounts typical¬
ly paid successful U.S. plaintiffs’ attorneys in contingent cases.33

2. Fee Schedules

In its landmark 1975 decision in Goldfarb v. Virginia State

Bar,31 the U.S. Supreme Court held that fee schedules promulgated
by bar associations violate antitrust laws. Fee schedules are com¬
mon, however, in Europe and elsewhere, where they are considered
a protection against exploitation of unsophisticated clients. The
CCBE Code acknowledges and appears to condone fee schedules,
providing that, in contrast to prohibited pactum de quota litis, fees
can “be charged in proportion to the value of a matter handled by
the lawyer if this is in accordance with an officially approved fee

schedule.”35
In Germany, lawyers’ fees are generally calculated with refer¬
ence to the Bundesgebiihrenordunung fur Rechtsanwalte (“BRA-
GO”), the Federal Ordinance on Fees for Lawyers, which provides
detailed rules and schedules governing what lawyers may charge.31’
German lawyers are prohibited by ethical rules from charging fees
lower than the BRAGO schedule.37 They can, however, exceed the
fee schedule through written agreement with the client. 3S One
commentator notes that the BRAGO fee schedules are a form of

“social engineering” designed to overcompensate attorneys who

take higher risk cases, thereby subsidizing legal services for poorer

32. Joseph W.S. Davis, supra note

lu in Ja 36 (1 On bi 31, at 364.
ti pa 4 99 e ll
o
ye n is ap n 6
$8 ). in Ui.on 33. Id. at 365.
n pr ,5 S.
cu oIdx Se Ja 47 Fo Ex 34. 421 U.S. 773 (1975).
rr .i e pa o G 0 re , ¬
ch en Ra ma Bo
t t a n/f ov 09 ig of the 35. CCBE Rule 3.3.3.
Feang cy. Re e, el rdS U he n
d e se y yst .S. trtnpo 36. Law Without Frontiers, supra
st era rv em :r//s
l l e , r note 9, at 85.
(l oui vi Ja 11 20 (c ese ex 37. Id.
as s si n , 0 u a ¬
ch t fed tread fr . ye t7o) do rre rchis ap
.o te 1 om t 1 n l n . ¬ 38. Id.
pr an rg 17 o ). la
rs
t
ox ge /
im fr
at ed
el 2/
y da
ta
/E
XJ
P
Sec. A REGULATION OF FEES 65

clients.'™ This rationale for the BRAGO schedule is similar to the

rationale for contingency fees — to provide monetary incentives to
attorneys to take high risk cases.

In Italy, the tariff established by the national bar association

(the Consiglio Nazionale Forenze) sets minimum and maximum
fees for specific legal tasks.1" Parties can agree to fees higher than
the tariff but are prohibited from agreeing to fees lower than the
minimum established by the tariff.41

In the Netherlands, fees for “paying cases” (as opposed to

“financed cases” for indigent clients) are calculated by a process
similar to the “lodestar” method typically used by U.S. courts when
there is as statutory or contractual right to fee reimbursement from
the opposing party. The Dutch bar publishes a Calculation Schedule
with standard hourly fees, which are multiplied by the hours spent
on the matter and can be multiplied or divided by an adjustment
factor that reflects the special circumstances of the case and the
experience of the lawyer handling the case.4"
As noted previously, the Japan bar provides a litigation fee
schedule for retention and for success fees, though a lawyer and
client may negotiate a different fee arrangement. 4,1 Fee schedules
also provide standard payments for non-litigation work, which may
include a percentage of the amount involved in a transaction.44
Japanese lawyers typically do not bill foreign clients based on this
kind of percentage, however, billing them instead on an hourly or

lump sum basis.1’

In China, fee standards are set by the Ministry of Justice and
approved by the State Council for some aspects of representation,
including most forms of civil and criminal litigation, subject to
specification by local governments within a stipulated range.1" Fees
for non-litigation services, however, may be negotiated between the
lawyer and client.4. Regulations provide that such fees should be a
flat sum for non-property matters and a percentage of the amount
at stake in property-related matters but may be based on time
spent where necessary.18
39. Maurer, supra note 7, at 320 44. Id. at 365.
n.183.
45. Id.
40. Law Without Frontiers, supra
46. Lawyers Comm, for Human
note 9, at 97; Thomas Glyn Watkin, The
Italian Legal Profession 115 (1997). Rights, Lawyers in China: Obstacles to
Independence and the Defense of Rights
41. Law Without Frontiers, supra
note 9, at 97. 20, n.75 (1998) (hereinafter Lawyers in
China].
42. Id. at 114.
47. Id.
43. Joseph W.S. Davis, supra note
48. Id.
31, at 364.
66 _ COMPENSATING LAWYERS Ch. 4

3. Fee Shifting

In the U.S. the general rule is that each party pays her own
attorneys’ fees.19 This “American Rule” has existed for over 200
years despite criticism that it encourages frivolous litigation. How¬
ever, other countries follow the “English Rule” by which the losing
party pays for the winning party’s attorneys’ fees. The rationale for
the English Rule is that the winning party deserves to be fully
compensated for all legal costs, including attorneys’ fees.’0 Oppo¬
nents of the English Rule argue that the prospect of paying the

other party’s fees deters plaintiffs from bringing novel or complex

cases.01
While the “loser pays rule” is referred to as the “English
Rule,” in the United Kingdom it is not automatic but a matter
within the court’s discretion.’2 Moreover, there are three categories
of cases in which fees are not ordinarily awarded to the winning
party: (1) small claims disputes when the claim does not exceed a
certain sum; (2) tribunals in which each party must pay its own
costs; and (3) suits where the losing party is funded by legal aid.’2
In addition, the availability of legal expense insurance, legal aid,
and fee assistance from trade unions may defray the ultimate
amount the losing party must pay.’4
Most civil law countries adhere to the English Rule, but pro¬
vide that fee-shifting is mandatory rather than discretionary.*’ Such
countries as Germany, Austria, and Mexico award attorneys’ fees to
the prevailing party based on the amount in controversy and the

procedural steps involved in the litigation. ,(’

France is similar to the United Kingdom in that a French court
has discretion to award fees to the prevailing party.” However,
unlike the United Kingdom, in France there is no fee-shifting
exception for losing parties who are funded through legal aid.

49. Despite the general rule, many 52. Id. at 600.

U.S. statutes provide expressly for fee- 53. Id. at 591.
shifting. See David A. Root, Attorney
Fee-Shifting in America: Comparing, 54. Id. at 601.

Contrasting, and Combining the “Ameri¬ 55. See W. Kent Davis, The Interna¬
can Rule” and “English Rule”, 15 Ind. tional View of Attorney Fees in Civil
Int’l & Comp. L. Rev. 583, 588 (2005)
(“[T|here are more than 200 federal and Suits: Why is the United States the “Odd
close to 2,000 state statutes allowing the Man Out” in How It Pays Its Lawyers ?,
shifting of fees. Fee-shifting statutes can 16 Ariz. J. Int’l & Comp. L. 361, 411-12
be divided into four main categories: 1) (1999) (“With few exceptions, the civil
law countries have also embraced the
civil rights suits; 2) consumer protection
suits; 3) employment suits; and 4) envi¬
English Rule.”).
ronmental
omitted). protection suits.”) (footnotes 56. Id. at 409, 411-14.
50. Id. at 589. 57. John Bell et al., Principles of
French Law 108 (1998).
51. Id. at 607-08.
 «7
Sec. A REGULATION OF FEES

Therefore, a party funded through legal aid may become personally

liable for costs if she loses the case.**
As in the U.S., the prevailing party in Japan cannot recover
attorneys’ fees from the losing party as a matter of course.55* There
is an exception, however, for prevailing plaintiffs in tort actions
who sued to recover damages, were obligated to pay an attorney
reasonable fees, included legal fees in their damages claim, and did
not seek an unreasonable amount of damages.1’" Recovery of attor¬
neys’ fees has also been allowed in some contract cases that are
tantamount to tort claims.H1
According to one commentator, the uncertainty surrounding
fee recovery in Japan leads some potential litigants to avoid consul¬
tation with an attorney entirely.1’2 In 2001, the Japanese Justice
System Reform Council recommended that Japan implement a

“loser pays’’ fee-shifting system. Many groups, including the Japan

Federation of Bar Associations, labor organizations, and consumer
interest groups, opposed mandatory two-way fee-shifting, and the
recommendation did not result in any legislation."*'1

4. Choice of Law Regarding Fees

For lawyers who represent foreign clients or clients who oper¬

ate across national boundaries, an issue may arise as to which

country’s rules governing fees will apply. Some jurisdictions have

rules that address this choice of law issue. The CCBE Code provides
that:

Subject to any proper agreement to the contrary between a

lawyer and his client fees charged by a lawyer shall be
subject to regulation in accordance with the rules applied
to members of the Bar or Law Society to which he belongs.
If he belongs to more than one Bar or Law Society the
rules applied shall be those with the closest connection to
the contract between the lawyer and his client.'’1
In Germany, the parties can agree on what law will apply, but
if they have not done, so German choice of law principles will
presume that the law of the lawyer’s home office applies.*’’ German
law is applied, however, if the rule of the home jurisdiction violates

58. Id. at 109. 63. Matthew J. Wilson, Failed At¬

tempt to Undermine the Third Wave:
59. Joseph W.S. Davis, supra, note
31, at 370. Attorney Fee Shifting Movement in -Ja¬

60. Id. pan, 19 Emory Int’l L. Rev. 1457, 1466-

69 (2005).
61. Id. 64. CCBE Rule 3.4.2.

62. Hiroshi Oda, Japanese Law 94 65. Law Without Frontiers, supra
(1999). note 9, at 91.
68 COMPENSATING LAWYERS _ Ch. 4

the German "ordre public”"1’ Contingent fees, for example, have

been held to violate the ordre public.67

Discussion Questions:

4-1: Are contingent fees justified, despite any resulting conflicts

between lawyer and client, as a means for providing represen¬
tation to plaintiffs with meritorious cases who would not
otherwise be able to afford to bring suit? Are there other,
better ways to assure legal representation for persons with
meritorious claims?

4-2: As a matter of policy, does it make sense to distinguish

between contingent fees and “uplifts” or “success fees” that
are allowed by some European countries? Do these “condi¬
tional” fees create less potential for conflict than contingent
fees that are calculated as a percentage of the client’s recov¬
ery in the case?

4-3: Are fee schedules more likely to benefit consumers by provid¬

ing reasonable rates or more likely to harm them by eliminat¬
ing competition? Has the prohibition on fee schedules in the
U.S. resulted in affordable fees for most consumers of legal
services? Are there reasons why the market for legal services
does not operate efficiently? If so, is government intervention
in the form of fee schedules justified?

4-4: Which makes more sense as a matter of social policy, the

“English Rule” of loser pays or the “American Rule” under
which each party bears its own attorneys’ fees? Is the English
Rule likely to deter many meritorious cases? Will the Ameri¬
can Rule mean that many prevailing parties are not fully
compensated? Which rule will result in a more just outcome
in the majority of cases?

4-5: In the United Kingdom, award of attorneys’ fees to the

prevailing party is within the discretion of the court, which
can deny an award for good cause, and the rule does not
generally apply to losing parties funded by legal aid. Are
these and related limitations on the rule sufficient to regulate
any adverse effects that the English Rule would otherwise
have?

4-6: How might the differences between regulation of fees in

various jurisdictions affect lawyers and law firms that oper¬
ate in more than one country and/or represent clients with
multi-national interests? Would reliable choice of law provi¬
sions be significant for such lawyers and clients?

66. Id. 67. Id.

 69
Sec. B INDIGENT AND LOW-INCOME CLIENTS

B. REPRESENTATION OF INDIGENT AND

LOW-INCOME CLIENTS
How a legal system provides or fails to provide for representa¬
tion of indigent and low-income clients requires consideration to¬
gether of a triad of interrelated issues: (1) what level of funding
does the government provide for legal aid to the poor; (2) what
ethical duties, if any, do lawyers within the system have to provide
pro bono legal representation to those who cannot afford necessary
legal services; and (3) to what extent do litigants have a right to
counsel?

1. Government Provision of Legal Services

International organizations have recognized a duty of govern¬

ments and lawyers to provide legal services to the poor. The Basic
Principles on the Role of Lawyers adopted by the Eighth United
Nations Congress on the Prevention of Crime and the Treatment of
Offenders in 1990 articulate both a governmental duty to provide
funding for legal services and the ethical duty of lawyers to partici¬
pate in providing legal services to the poor. Those principles assert
that:

Governments shall ensure the provision of sufficient fund¬

ing and other resources for legal services to the poor and,
as necessary, to other disadvantaged persons. Professional
associations of lawyers shall cooperate in the organization
and provision of services, facilities and other resources. hS
The Committee of Ministers in the European Council has recom¬
mended that lawyers be “encouraged to provide legal services to
persons in an economically weak position” and that governments of
member states should “ensure effective access to justice [and] that
effective legal services are available ... in particular to persons
deprived of their liberty.”69 The CCBE Code presumes the existence
of legal aid and provides that “[a] lawyer shall inform his client of
the availability of legal aid where applicable.”'"
In some countries, there is extensive public assistance for legal
representation of low-income litigants. Most industrial democracies
invest a much greater percentage of their gross national products to

69. Council of Europe, Recommenda¬

La Ad by th Ei Un tion of the Committee of Ministers to
Nawye Co opt on the Prght it o
ed f Member States on the Freedom of Exer¬
ti rs ng ed e ev h
Cr o , an trh T of eOf cise of the Profession of Lawyer, Princi¬
im ns d ees re ntfe
Ha e Cu s Au at 27 to Se iond ple IV, § 2-3 (2000).
va ba g m pt n er
7, n 19 at, 2, usht ent em s, 70. CCBE Rule 3.7.2.
a, 9 t tp be
0,
english/law/lawyers, htm :/ (last visited
/w r
Jan. 11, 2006). ww.
oh
ch
r.
or
g/
70 COMPENSATING LAWYERS
Ch. 4

providing access to justice for their lower income populations than

does the United States.'1 These countries typically provide legal aid
to more than just the extremely poor. Under the Dutch legal aid
system, 40 percent of Dutch households could qualify for some form
of legal aid or assistance. Legal aid at one time paid for nearly half
of the attorneys’ fees for serious civil litigation in the United
Kingdom." A client and solicitor in the United Kingdom apply for
legal aid, and the solicitor is paid a negotiated hourly fee that is
typically lower than the going rate.'4

The Lawyers Law in the People’s Republic of China provides

expansively for legal aid to those who cannot afford a lawyer:
Article 41: If citizens require the assistance of a lawyer in
respect of matters such as provision for their family, work-
related injury, criminal procedure, claims for State com¬
pensation or claims for lawful payment of disability or
bereavement pensions, etc. but cannot afford a lawyer,
they may obtain legal aid in accordance with State regula¬
tions.

Article 42: Lawyers must undertake the duty of legal aid in

accordance with State regulations, and provide the recipi¬
ent with legal services in fulfillment of their duty and

responsibility.'0
Such legal aid includes non-litigation matters, criminal matters,
and civil and administrative proceedings.'1’ The 2003 Legal Aid
Regulations allocated significant responsibility to the government
to supervise and operate, and to lawyers and lawyer associations to
participate in the legal aid system."
A 1998 report concluded, however, that “Lin practice, legal aid
[in China] remains more of a hope than a reality” and that it would
"take 15 years or more for China to make good on the legal aid
71. Justice Earl Johnson, Jr., Equal supported by legal aid. Id. Conditional
Access to Justice: Comparing Access to fees are not allowed in cases involving
Justice in the United States and Other legal aid. Conversely, the advent of con¬
Industrial Democracies, 24 Fordham ditional fees has led to calls to embrace
Int’l L.J. 83, 96 (2000) (concluding that conditional fees as an alternative to legal
France and Germany invest 2.5 times aid in civil money damages cases. Id. at
more of their GNPs than does the U.S., 313.
and that England invests 17 times more 75. Lawyers Law, art. 41, 42
of its GNP than does the U.S. for access
(P.R.C.).
to justice for low-income individuals).
76. Zhang Fusen, China: Outlines of
72. J.M.J. Chorus, et al., Introduc¬
tion to Dutch Law 26 (1999). the Legal System of the People’s Repub¬
lic of China 297 (2004).
73. Maurer, supra note 7, at 310.
77. Albert Hung-yee Chen, An Intro¬
74. Id. Costs are not normally allo¬ duction to the Legal System of the Peo¬
cated under the loser pays rule against a ple’s Republic of China 108 (3d ed.
2004).
losing party whose representation is
Sec. B INDIGENT AND LOW-INCOME CLIENTS 71

promises set out in the Lawyers Law and other regulations.”'8

Moreover, China’s criminal procedure law fails to provide for man¬
datory appointment of counsel for all suspects who cannot afford a

lawyer.79

2. Pro Bono Legal Service

Where funding for legal aid is insufficient to provide for the

needs of those who cannot afford legal assistance, pro bono legal
service by private lawyers takes on particular significance. While
mandatory pro bono for U.S. lawyers has been proposed from time
to time, it has not been adopted by any U.S. jurisdiction.8" The ABA
Model Rules provide an aspirational goal of 50 hours per year:
Every lawyer has a professional responsibility to provide
legal services to those unable to pay. A lawyer shall aspire
to render at least (50) hours of pro bono publico legal

services per year.81

Rules of professional responsibility in other countries also often
articulate an ethical duty for lawyers to provide legal services to the
poor. For example, the Bar Council of India Rules provide that:
Every advocate shall in the practice of the profession of
law bear in mind that anyone genuinely in need of a
lawyer is entitled to legal assistance even though he cannot
pay for it fully or adequately and that within the limits of
an Advocate’s economic condition, free legal assistance to
the indigent and oppressed is one of the highest obligations
an advocate owes to society.82

3. The Right to Counsel in Civil Cases

The ABA passed a resolution in August of 2006 stating that the

government should provide representation for low-income persons
in civil cases where “basic human rights are at stake.”85 At around
the same time, the Chief Justice of the California Supreme Court

78. Lawyers in China, supra note 46, 81. Model Rule 6.1.
at 87, 90.
82. Bar Council of India, Rules Gov¬
79. Id. at 76-77.
erning Advocates, Rule 46.
80. The ABA rejected efforts to re¬
quire lawyers to provide pro bono legal 83. ABA House of Delegates Resolu¬
services in 1993 and again in 2001. See tion, August 7, 2006, http://www. abanet.
Deborah L. Rhode, Access to Justice 152 org/legalservices/sclaid/downloads/06A
(2004). However, an increasing number 112A.pdf (last visited Jan. 11, 2007)
of states require lawyers to report their
(noting such rights include those “in¬
pro bono activity. See ABA Overview of volving shelter, sustenance, safety,
State Pro Bono Reporting Policies, health or child custody, as determined
htt p ://www. abanet . org/legalservices/
probono/reporting.html (last visited Dec. by each jurisdiction”).
23, 2006).
72 _ COMPENSATING LAWYERS Ch. 4

urged the state to develop and fund pilot programs for providing
lawyers for low-income persons in certain family law and housing
cases. 81 There remains, however, no general right to legal counsel in
civil cases in the U.S., as a matter of either statutory or constitu¬
tional law.85
By contrast, most western democracies have statutes creating
the right to counsel in civil cases. Sh In Switzerland, courts have
interpreted law similar to the U.S. equal protection clause as
guaranteeing indigent civil litigants free legal representation in
civil matters.8'
In a 1979 decision, the European Court of Human Rights held
that the guarantee of a “fair hearing” in the European Convention
on Human Rights and Fundamental Freedoms (“European Conven¬
tion”) required the appointment of counsel in a civil domestic
relations case.88 The Irish Supreme Court had held that the plain¬
tiff, an indigent Irish woman who sought judicial separation from
her husband, did not have a right to appointed counsel. Because
Ireland is a signatory to the European Convention, she was able to
appeal that decision to the European Court of Human Rights,
which disagreed:

The Convention is intended to guarantee not rights

that are theoretical or illusory but rights that are practical
and effective. This is particularly so of the right to access
to the courts in view of the prominent place held in a
democratic society by the right to a fair trial .... The court
concludes . . . that the possibility to appear in person
before the [trial court] does not provide the applicant with
an effective right of access . . .

84. Bob Egelko, Chief Justice Seeks las v. Cortez, 593 P.2d 226 (Cal.), cert,
Lawyers for Poor in Civil Cases, S.F. denied 444 U.S. 900 (1979) (holding that
Chronicle, Dec. 20, 2006, available at in proceedings to determine paternity in
http://sfgate.com/cgi-bin/article.cgi?f=/c/ which state appeared as party on behalf
a/2006/12/20/BAGA8N2UKFl.DTL. of a mother or child, indigent defendants
85. See Lassiter v. Department of So¬ were constitutionally entitled to appoint¬
cial Services, 452 U.S. 18, 26-27 (1981) ed counsel).
(“the Court’s precedents speak with one 86. See Justice Earl Johnson, Jr.,
voice about what ‘fundamental fairness’ Equal Access to Justice: Comparing Ac¬
has meant when the Court has consid¬ cess to Justice in the United States and
ered the right to appointed counsel, and
we thus draw from them the presump¬ Other Industrial Democracies, 24 Ford-
tion that an indigent litigant has a right ham Int’l L. J. 83, 89-90 (2000); Justice
to appointed counsel only when, if he Earl Johnson, Jr., The Right to Counsel
loses, he may be deprived of his physical in Civil Cases: An International Perspec¬
L.A. L. Rev. 341, 344-48
liberty”); but see Payne v. Superior (1985).19 Loyola
tive,
Court, 553 P.2d 565 (Cal. 1976) (holding
equal protection requires the appoint¬ 87. Id. at 347.
ment of counsel for indigent civil defen¬
dants who are in prison and thus unable 88. Airey v. Ireland, 32 Eur. Ct. H.R.
(ser. B.) at 305 (1979).
to effectively represent themselves); Sa¬
Sec. B INDIGENT AND LOW-INCOME CLIENTS
73
The Irish Government maintains that ... in the pres¬
ent case there is no positive obstacle emanating from the
State and no deliberate attempt by the State to impede
access; the alleged lack of access to the court stems not
from any act on the part of authorities but solely from
Mrs. Airey’s personal circumstances, a matter for which
Ireland cannot be held responsible under the Convention.

The Court does not agree. ... In the first place, hin¬
drance in fact can contravene the Convention just like a
legal impediment. Furthermore, fulfillment of a duty un¬
der the Convention on occasion necessitates some positive
action on the part of the State; in such circumstances, the
State cannot simply remain passive and ‘there is ... no
room to distinguish between acts and omissions.’ The
obligation to secure an effective right of access to the

courts falls into this category of duty.''9

Twenty years after the decision in Airey v. Ireland, the Su¬
preme Court of Canada faced a similar issue in J.G. u. New

Brunswick.'"1 In that case, the mother of three children who were in

the custody of the Minister of Health and Community Services
under a court order, made a motion claiming a right to state-funded
legal counsel to represent her in opposing the Minister’s application
to extend the custody order by six months. While most Canadian
provinces would have provided legal aid as a matter of statutory
law, New Brunswick had denied her application for legal aid
because only permanent guardianships were covered under the
applicable guidelines. The mother’s motion was denied over a year
after it was first made and after the children had been returned to
her care. The New Brunswick Court of Appeal affirmed that deci¬
sion. The mother appealed to the Supreme Court of Canada, which
heard the appeal despite its mootness because it raised an issue of
“national importance” — whether a parent has a constitutional
right to state-funded counsel in child custody hearings — and be¬
cause similar cases would also likely be rendered moot by the time
they reached the Supreme Court.

NEW BRUNSWICK (MINISTER OF HEALTH

AND COMMUNITY SERVICES) v. G.(J.)
177 D.L.R. (4th) 124 (1999).

JUDGMENT: [1] LAMER C.J.C. (GONTHIER, CORY, MCLACH-

LIN, MAJOR AND BINNIE JJ. CONCURRING):— This case raises

89. Id. at 314-16. (J.), 177 D.L.R. (4th) 124 (1999), avail-
90. New Brunswick (Minister of able at 1999 WL 1556609.
Health and Community Services) v. G.
74 COMPENSATING LAWYERS Ch. 4

for the first time the issue of whether indigent parents have a
constitutional right to be provided with state-funded counsel when
a government seeks a judicial order suspending such parents’
custody of their children. It comes before the Court as a result of

Legal Aid New Brunswick’s decision not to provide legal aid to the
appellant after the Minister of Health and Community Services of
New Brunswick sought to extend an order granting the Minister
custody of the appellant’s three children for an additional six
months. The decision not to provide the appellant with legal aid
was made pursuant to a policy in force at the time of her applica¬
tion which stipulated that no legal aid certificates would be issued
to respondents in custody applications made by the Minister of
Health and Community Services.
[2] I have concluded that the Government of New Brunswick was
under a constitutional obligation to provide the appellant with
state-funded counsel in the particular circumstances of this case.
When government action triggers a hearing in which the interests
protected by s. 7 of the Canadian Charter of Rights and Freedoms
are engaged, it is under an obligation to do whatever is required to
ensure that the hearing be fair. In some circumstances, depending
on the seriousness of the interests at stake, the complexity of the
proceedings, and the capacities of the parent, the government may
be required to provide an indigent parent with state-funded coun¬
sel. Where the government fails to discharge its constitutional
obligation, a judge has the power to order the government to
provide a parent with state-funded counsel under s. 24(1) of the
Charter through whatever means the government wishes, be it
through the Attorney General’s budget, the consolidated funds of
the province, or the budget of the legal aid system, if one is in place

B. SECURITY OF THE PERSON

[56| The appellant argued that the Minister of Health and Com¬
munity Services’ application to extend the order granting the
Minister custody of her three children threatened to deprive her of
both her s. 7 rights to liberty and security of the person. I believe it

is possible to dispose of this appeal by focusing on the appellant’s

right to security of the person. Since the appeal can be disposed of
on this basis and there have been differing views expressed about

the scope of the right to liberty in the Court’s previous judgments, I

will not address the issue of whether the appellant’s right to liberty
was also engaged in this case.
[571 Were the Minister successful in his application, the appellant
would have been separated from her children for up to an addition¬
al six months. There would also be no guarantee that she would
regain custody of her children at the expiry of the order. The
Sec. B INDIGENT AND LOW-INCOME CLIENTS 75

separation of parent and child contemplated by the Minister’s

application would unquestionably have profound effects on both
parent and child. For the purposes of this appeal, however, what
must be determined is whether relieving a parent of custody of his
or her child restricts a parent’s right to security of the person.
(58| This Court has held on a number of occasions that the right
to security of the person protects “both the physical and psychologi¬
cal integrity of the individual”: see R. v. Morgentaler, 11988] 1
S.C.R. 30 at p. 173, 44 D.L.R. (4th) 385 (per Wilson J.); Reference
re ss. 193 and 195. 1( 1 Kc) of the Criminal Code, 11990 ] 1 S.C.R.
1123 at p. 1177; Rodriguez v. British Columbia (Attorney General),
[1993 ] 3 S.C.R. 519 at pp. 587-88, 107 D.L.R. (4th) 342. Although
these cases considered the right to security of the person in a
criminal law context, I believe that the protection accorded by this
right extends beyond the criminal law and can be engaged in child
protection proceedings. . . .

[631 Not every state action which interferes with the parent-child
relationship will restrict a parent’s right to security of the person.
For example, a parent’s security of the person is not restricted
when, without more, his or her child is sentenced to jail or con¬
scripted into the army. Nor is it restricted when the child is
negligently shot and killed by a police officer: see Augustus u.
Gosset, [19961 3 S.C.R. 268, 138 D.L.R. (4th) 617.
(641 While the parent may suffer significant stress and anxiety as
a result of the interference with the relationship occasioned by
these actions, the quality of the “injury” to the parent is distin¬
guishable from that in the present case. In the aforementioned
examples, the state is making no pronouncement as to the parent’s
fitness or parental status, nor is it usurping the parental role or
prying into the intimacies of the relationship. In short, the state is
not directly interfering with the psychological integrity of the
parent qua parent. The different effect on the psychological integri¬
ty of the parent in the above examples leads me to the conclusion
that no constitutional rights of the parent are engaged.
[65] I now turn to the question of whether the right to security of
the person extends beyond the criminal law context. In both Refer¬
ence re ss. 193 and 195. 1( l)(c) of the Criminal Code and B. (R.),
supra, I held that the restrictions on liberty and security of the
person that s. 7 is concerned with are those that occur as a result of

an individual’s interaction with the justice system and its adminis¬

tration. In other words, the subject matter of s. 7 is the state’s
conduct in the course of enforcing and securing compliance with
the law, where the state’s conduct deprives an individual of his or
her right to life, liberty, or security of the person. I hastened to add,
however, that s. 7 is not limited solely to purely criminal or penal
76 COMPENSATING LAWYERS Ch. 4

matters. There are other ways in which the government, in the

course of the administration of justice, can deprive a person of their
s. 7 rights to liberty and security of the person, i.e., civil committal
to a mental institution: see B. (R.), supra, at para. 22.
[66] A child custody application is an example of state action
which directly engages the justice system and its administration.
The Family Services Act provides that a judicial hearing must be
held in order to determine whether a parent should be relieved of
custody of his or her child.
[67 1 I therefore conclude that the Minister of Health and Commu¬

nity Services’ application to extend the original custody order

threatened to restrict the appellant’s right to security of the person.
I note that this conclusion is not inconsistent with the position I
adopted in B. (R. ), where I limited my comments to the issue of the
scope of the right to liberty under s. 7 and in particular, whether
the right to liberty includes the right of parents to choose medical
treatment for their child.
C. PRINCIPLES OF FUNDAMENTAL JUSTICE

[68] I now turn to consider whether the potential restriction of

the appellant’s right to security of the person would have been in
accordance with the principles of fundamental justice were she not
represented by counsel at the custody hearing.
[69] While relieving a parent of custody of his or her child
restricts the parent’s right to security of the person, this restriction
may nevertheless be in accordance with the principles of fundamen¬
tal justice. The principles of fundamental justice “are to be found in
the basic tenets of our legal system”: Re B.C. Motor Vehicle Act,
[1985] 2 S.C.R. 486 at p. 503, 24 D.L.R. (4th) 536. It is a time-
honoured principle that the state may relieve a parent of custody
when necessary to protect a child’s health and safety ....
Thus, the principles of fundamental justice in child protection
proceedings are both substantive and procedural. The state may
only relieve a parent of custody when it is necessary to protect the
best interests of the child, provided that there is a fair procedure
for making this determination.
[71| The appellant did not contest the legitimacy of the principle
that the state may relieve a parent of custody to protect the child’s
health and safety. Rather, she took issue with the fairness of the
procedure in this case.
[72] A fair procedure for determining whether a custody order
should be extended requires a fair hearing before a neutral and
impartial arbiter. The paramount consideration at the hearing
should be the child’s best interests. This is recognized in s. 53(2) of
the Family Services Act, which provides: 53(2) When disposing of
Sec. B INDIGENT ANI) LOW-INCOME CLIENTS
77

an application under this Part the court shall at all times place
above all other considerations the best interests of the child.

173| For the hearing to be fair, the parent must have an opportu¬
nity to present his or her case effectively. Effective parental partic¬
ipation at the hearing is essential for determining the best interests
of the child in circumstances where the parent seeks to maintain
custody of the child ....
174| The Family Services Act allows parents to be present at and
participate in the hearing, with or without counsel, hear all the
evidence and cross-examine witnesses, and present evidence and
make other representations to the court. However, it does not
provide for the payment of legal fees incurred by parents with
respect to an application by the Minister. Indigent parents must
resort to the legal aid scheme, if there is one, as is the case in New
Brunswick. If no legal aid is available, as in this case, the parent is
forced to participate in the proceedings without the benefit of
counsel. The majority of the Court of Appeal nevertheless held that
the procedural rights provided by the Family Services Act, if
complied with, would have been sufficient to “ensure reasonable
compliance with constitutional standards”.
1751 I respectfully disagree. In the circumstances of this case, the
appellant’s right to a fair hearing required that she be represented
by counsel. I have reached this conclusion through a consideration
of the following factors: the seriousness of the interests at stake,
the complexity of the proceedings, and the capacities of the appel¬
lant. I will consider each in turn ....

[79| At issue in this appeal is whether the custody hearing would

have been sufficiently complex, in light of the other two factors,
that the assistance of a lawyer would have been necessary to ensure
the appellant her right to a fair hearing. I believe that it would
have been. Although perhaps more administrative in nature than
criminal proceedings, child custody proceedings are effectively ad¬
versarial proceedings which occur in a court of law. The parties are
responsible for planning and presenting their cases. While the rules
of evidence are somewhat relaxed, difficult evidentiary issues are
frequently raised. The parent must adduce evidence, cross-examine
witnesses, make objections and present legal defences in the con¬
text of what is to many a foreign environment, and under signifi¬
cant emotional strain. In this case, all other parties were represent¬
ed by counsel. The hearing was scheduled to last three days, and
counsel for the Minister planned to present 15 affidavits, including
two expert reports.

[801 In proceedings as serious and complex as these, an unrepre¬

sented parent will ordinarily need to possess superior intelligence
or education, communication skills, composure, and familiarity with
78 COMPENSATING LAWYERS Ch. 4

the legal system in order to effectively present his or her case.

There is no evidence in Athey J.’s decision or the record to suggest
that the appellant possessed such capacities.
[81] In light of these factors, I find that the appellant needed to be
represented by counsel for there to have been a fair determination
of the children’s best interests. Without the benefit of counsel, the
appellant would not have been able to participate effectively at the
hearing, creating an unacceptable risk of error in determining the
children’s best interests and thereby threatening to violate both the
appellant’s and her children’s s. 7 right to security of the person. I
say this despite the motions judge’s finding to the contrary. . . .
[90] Without commenting on their correctness, I note that there
are a number of appellate court cases in Canada which have found
that legal representation of an accused may be necessary to ensure
a fair trial, pursuant to ss. 7 and 11(d) of the Charter. These cases
are noteworthy because the criteria employed by the courts to
determine whether counsel was warranted included the seriousness
of the interests at stake and the complexity of the proceedings: see
Rowbotham, supra; R. u. Robinson (1989), 63 D.L.R. (4th) 289
(Alta. C.A.); R. v. Rain (1998), 130 C.C.C. (3d) 167 (Alta. C.A.).
[91] I therefore conclude that the potential restriction of the
appellant’s right to security of the person would not have been in
accordance with the principles of fundamental justice had the
custody hearing proceeded with the appellant unrepresented by
counsel ....
D. SECTION 1

[94] Although this case involves a prospective violation of s. 7,

it is still necessary to engage in a s. 1 analysis. For if the prospec¬
tive s. 7 violation would otherwise have been saved by s. 1, then
there would be no need to order a remedy.
[95] Section 1 of the Charter provides:
1. The Canadian Charter of Rights and Freedoms guarantees the
rights and freedoms set out in it subject only to such reasonable
limits prescribed by law as can be demonstrably justified in a free
and democratic society.
In R. u. Oakes, [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200, this Court
set out the analytical framework for determining whether a law
constitutes a reasonable limit on a Charter right. Iacobucci J.
summarized this framework in Egan u. Canada, 11995] 2 S.C.R.
513 at p. 605, 124 D.L.R. (4th) 609:
A limitation to a constitutional guarantee will be sustained once
two conditions are met. First, the objective of the legislation must
be pressing and substantial. Second, the means chosen to attain
this legislative end must be reasonable and demonstrably justifiable
Sec. B INDIGENT AND LOW-INCOME CLIENTS 79

in a free and democratic society. In order to satisfy the second

requirement, three criteria must be satisfied: (1) the rights viola¬
tion must be rationally connected to the aim of the legislation; (2)
the impugned provision must minimally impair the Charter guaran¬
tee; and (3) there must be proportionality between the effect of the
measure and its objective so that the attainment of the legislative
goal is not outweighed by the abridgement of the right.
196| The appellant quite rightly is not directly challenging the
Legal Aid Act, but rather administrative decisions made pursuant
to it. The Legal Aid Act does not expressly or by necessary implica¬
tion deny state-funded counsel to respondents in custody applica¬
tions. On the contrary, both Legal Aid New Brunswick, pursuant to
s. 12 of the Act, and the Minister of Justice, pursuant to s. 24 may
provide state-funded counsel in these circumstances.
L97] Despite the fact that state-funded legal assistance could have
been provided in cases of custody applications pursuant to ss. 12
and 24, it was not. The Minister of Justice’s program did not cover
either guardianship or custody applications initiated by the Minis¬
ter of Health and Community Services. This decision was made in
order to avoid any potential conflicts of interest for Family Solici¬
tors, who would be forced to act against the government while
being paid by the Minister of Justice. As a result, Legal Aid New
Brunswick agreed to continue providing legal aid certificates in
cases of guardianship applications, but expressly refused to do so
for custody applications. This had been Legal Aid New Brunswick’s
policy prior to 1993, when the Minister of Justice’s program was
first introduced. In December of 1991, the Council of the Law
Society adopted a policy of limiting the provision of legal aid
certificates to victims of family violence involved in private family
litigation and to respondents to guardianship applications by the
Minister of Health and Community Services. This policy was
adopted pursuant to s. 12(14) of the Act, which provides that the
Law Society may limit the provision of legal aid in certain matters
when the Legal Aid Fund is in danger of being depleted. Conse¬
quently, the Charter infringement in this case is not caused “by the
legislation itself, but by the actions of a delegated decision-maker in
applying it”: see Eldridge v. British Columbia (Attorney General),
[1997] 3 S.C.R. 624 at para. 20, 151 D.L.R. (4th) 577. See also
Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038 at
p. 1078, 59 D.L.R. (4th) 416.
[98] Assuming without deciding that the policy of not providing
state-funded counsel to respondents in custody applications was a
limit prescribed by law, that the objective of this policy — controlling
legal aid expenditures — is pressing and substantial, that the policy
is rationally connected to that objective, and that it constitutes a
minimal impairment of s. 7, I find that the deleterious effects of the
80 COMPENSATING LAWYERS Ch. 4

policy far outweigh the salutary effects of any potential budgetary

savings. . . .

[1001 In the circumstances of this case, the Government of New

Brunswick argues that the objective of limiting legal aid expendi¬
tures is of sufficient importance to deny the appellant a fair
hearing. The proposed budgetary savings, however, are minimal. In
their factum, Legal Aid New Brunswick and the Law Society of
New Brunswick report that the projected annual cost of their new
policy, effective September 22, 1997, of issuing legal aid certificates
to respondents in custody applications for their first hearing would
be under $100,000. Although the present appeal concerns the right
to state-funded counsel at a hearing to extend an original custody
order, the additional cost of providing state-funded counsel in these
circumstances is insufficient to constitute a justification within the
meaning of s. 1. Moreover, the government is not under an obli¬
gation to provide legal aid to every parent who cannot afford a
lawyer. Rather, the obligation only arises in circumstances where
the representation of the parent is essential to ensure a fair hearing
where the parent’s life, liberty, or security is at stake. In my view, a
parent’s right to a fair hearing when the state seeks to suspend
such parent’s custody of his or her child outweighs the relatively
modest sums, when considered in light of the government’s entire
budget, at issue in this appeal.
E. REMEDY

[101] There are only two possible remedies a judge can order
under s. 24(1) to avoid a prospective s. 7 breach in circumstances
where the absence of counsel for one of the parties would result in
an unfair hearing: an order that the government provide the
unrepresented party with state-funded counsel, or a stay of pro¬
ceedings. A stay of proceedings is clearly inappropriate in this case,
as it would result in the return of the children to the appellant’s
custody. Children should not be returned to their parent’s care
when there is reason to suspect that they are in need of protection.
Indeed, this would run contrary to the purposes of Part IV of the
Family Services Act. The government must, therefore, provide the
appellant with state-funded counsel.

Discussion Questions:

4-7: Should litigants in civil cases have a right to legal counsel

whether or not they can afford it? In all cases or only in some
cases? If only in some cases, to what kind of cases should the
right to counsel apply?

4-8: Should the government provide legal assistance to those who

cannot afford it whether or not there is right to counsel? If
Sec. B INDIGENT AND LOW-INCOME CLIENTS 81

only in some cases, in what kind of cases should legal aid be

available? Should those eligible for legal aid include those
with claims for monetary recovery? For monetary recovery
against the government?
4-9: If the government does not provide legal assistance, do
lawyers have an ethical duty to provide pro bono legal
representation? Should ethical requirements for pro bono
service be mandatory rather than aspirational? If mandatory,
should lawyers be allowed to provide monetary contributions
in lieu of actual pro bono assistance? What values and
interests argue for and against mandatory pro bono?

4-10: Do the differences among jurisdictions with regard to a right

to counsel in civil cases and the availability of legal aid affect
your analysis of whether contingent fees should be allowed
in any given jurisdiction? Do they affect your analysis of the
advisability of fee schedules?

4-11: Do the differences among jurisdictions with regard to a right

to counsel in civil cases and the availability of legal aid
reflect differences in concept regarding a lawyer’s role in
society?
 Chapter 5

C ONFIDENTIALITY

A. CONFIDENTIALITY AND PRIVILEGE— GEN¬

ERAL PRINCIPLES AND COMPARISONS

In the United States, a lawyer’s duty to maintain client confi¬

dences and the privilege against compelled disclosure of lawyer-
client communications are considered crucial to a lawyer’s effective
representation of a client, which depends on candid and full ex¬
change of relevant information in an atmosphere of trust. As
articulated in the comments to ABA Model Rule 1.6 (“Confidential¬
ity of Information”):
A fundamental principle in the client-lawyer relationship is
that, in the absence of the client’s informed consent, the
lawyer must not reveal information relating to the repre¬
sentation .... This contributes to the trust that is the
hallmark of the client-lawyer relationship. The client is
thereby encouraged to seek legal assistance and to commu¬
nicate fully and frankly with the lawyer even as to embar¬
rassing or legally damaging subject matter. The lawyer
needs this information to represent the client effectively
and, if necessary, to advise the client to refrain from

wrongful conduct.1
The duty of confidentiality is nonetheless subject to exceptions
in all U.S. jurisdictions, which have varying formulations of when a
lawyer may become a whistle-blower and disclose client confidences
to prevent prospective harm to third persons.2 What circumstances
1. Model Rule 1.6, cmt. |2|. death or substantial bodily harm, or to

2. See, e.g., Model Rule 1.6(b) (giv- prevent or mitigate substantial injury to
ing lawyer discretion to disclose client the financial interests of property of an-
confidences as she reasonably believes other resulting from a client crime or
necessary to prevent reasonably certain fraud in furtherance of which the law-

82
Sec. A GENERAL PRINCIPLES AND COMPARISONS
83

justify such disclosure has been a matter of heated and continuing

debate and revision in the United States:'
Protection of client confidences and privileged communications
is also central to the professional responsibilities of lawyers in most
if not all other countries. Indeed, in a number of countries, improp¬
er disclosure of confidential client information is a criminal offense.
In some countries, however, including most civil law countries, the

duty of confidentiality is considered part of a lawyer’s public

obligation to the administration of justice and a right and duty of
the lawyer as much or more than an obligation to the client. The
statement of general principles in the CCBE confidentiality rule,
while similar to the articulation of principles in the comment to
ABA Model Rule 1.6, reflects this dual emphasis.

It is the essence of a lawyer’s function that he should be

told by his client things which the client would not tell to
others, and that he should be the recipient of other infor¬
mation on a basis of confidence. Without the certainty of
confidentiality there can be no trust. Confidentiality is
therefore a primary and fundamental right and duty of the
lawyer.

The lawyer’s obligation of confidentiality serves the interest

of the administration of justice as well as the interest of
the client. It is therefore entitled to special protection by

the State.1
Whether a system emphasizes client rights, on the one hand, or
the lawyer’s public obligations to the administration of justice, on
the other, may lead to somewhat different rules of confidentiality.
In some civil law countries, for example, the client has no right to
waive confidentiality, and a lawyer’s communications with other

yer’s services have been used). Some ju¬ A Handbook on the Model Rules of Pro¬
risdictions make disclosure of client fessional Conduct § 1.6:100, at 127
confidences mandatory in some circum¬ (Supp. 1993) (“By a wide margin, Rule
stances. See, e.g., New Jersey Rule of 1.6 was the most controversial rule dur¬
Professional Conduct 1.6(b) (1998) (re¬ ing the drafting and adoption process.
quiring lawyer to reveal confidential As each successive draft of the Rules of
client information to proper authorities Professional Conduct was presented to
as reasonably necessary to prevent the profession and to the public, only
client “from committing criminal, ille¬ the rule on confidentiality drew any sig¬
gal or fraudulent act likely to result in nificant comment from the news media
death or substantial bodily harm or
substantial injury to the financial inter¬ and the lay public.”). In the wake of
corporate fraud scandals, this debate has
est or property of another”). U.S. juris¬ focused most recently on whistle-blow¬
dictions also allow a lawyer to reveal
client confidences to establish a defense ing in the corporate context. Disclosure
of client confidences in the corporate
on behalf of the lawyer or to comply
with a court order. See, e.g., Model Rule context is addressed in Chapter 7, “Rep¬
1.6(b)(5) & (6). resenting Organizations.”
3. See Geoffrey C. Hazard, Jr. & W. 4. CCBE Rule 2.3.1 (emphasis add¬
William Hodes, 1 The Law of Lawyering: ed).
84 CONFIDENTIALITY Ch. 5

counsel are protected as confidential even from the client. In other

countries, such as China, duties of disclosure to the state and/or
protection of “state secrets” may outweigh the duty to protect
client confidences.

As a result of the different roles of counsel and categories of

legal service providers in other legal systems, the scope of the
evidentiary privilege for communications with a “lawyer” may also
vary. One of the most significant areas of difference, the treatment
of communications with in-house counsel, arises in the representa¬
tion of corporations or other organizations and is addressed in
another chapter (Chapter 7, “Representing Organizations”).

1. United Kingdom

As in the United States, lawyers in the United Kingdom have a

duty to protect client confidences. The Guide to the Professional
Conduct of Solicitors requires a solicitor to keep confidential the
affairs of clients and to ensure that other staff do so.0 Similarly,
barristers may not reveal confidential client information without
the client’s consent or as permitted by law, and may not use
confidential information to the client’s detriment or to another
client’s advantage. h
Lawyer-client communications in the U.K. are protected from
compelled disclosure. The equivalent of the U.S. “attorney-client
privilege” is known in the U.K. as the “legal advice doctrine.” It is
considered not merely an evidentiary rule but a rule of law govern¬
ing the administration of justice. The House of Lords recently
reaffirmed the importance of this doctrine:
[T]he restraining and controlling framework [of the legal
advice doctrine] is built upon a belief in the rule of law,
that communications between clients and lawyers, where¬
by the clients are hoping for the assistance of lawyers’
legal skills in the management of their (the clients’) af¬
fairs, should be secure against the possibility of any scruti¬
ny from others, whether the police, the executive, business

competitors, inquisitive busybodies or anyone else.'

Parallel to the U.S. attorney-client privilege, the legal advice
doctrine applies to all communications between a person and a
solicitor made in confidence for the purpose of giving or receiving
legal advice. As in the United States, there are few exceptions to
the privilege, but the privilege does not extend to communications

5. Solicitors’ Practice Rules of 1990, 7. Three Rivers DC v. Bank of Eng-

Rule 16.01. land (No. 6), 12005 1 1 A.C. 610 (H.L.).
6. Bar Council of England and
Wales, Code of Conduct, Rule 702.
Sec. A GENERAL PRINCIPLES AND COMPARISONS 85

made to further a criminal or fraudulent purpose." Rather than

being regarded strictly as an “exception” to the privilege, “the
traditional view is that where crime and fraud are brought in to the
equation, the lawyer-client relationship does not exist at all, since
they fall outside the scope of the professional relationship.”9
British courts have held that the privilege applies to communi¬
cations with foreign lawyers. In IBM Corp. u. Phoenix International
(Computers ) Ltd,w the court upheld the privilege though the advice
was given by U.S. attorneys and related primarily to English law.

As in the United States, the privilege for legal advice can be

waived by the client.11 Waiver may result from providing otherwise
privileged documents to third parties or by referring to its contents
in a way that makes it unfair not to disclose the entire document.

2. Civil Law Countries

In most civil law countries, confidentiality and privilege are

conceived less as a duties to the client and more as public obli¬
gations necessary to maintain trust in the legal system and profes¬
sion. Protection of client confidences is typically required by statute
or professional conduct rules and often enforced by criminal penal¬
ties.12 While this “professional secrets doctrine” also includes a
privilege against testifying with regard to information obtained in
the course of the representation, the evidentiary privilege is less
significant than in common law countries because there is typically
little or no disclosure in litigation.

Unlike in the U.S. and other common law countries, a lawyer

cannot breach the duty of confidentiality even with client consent
in most civil law countries. Typical of civil law countries, Article 2.1
of the Harmonised Practice Rules of the French Bar provides that:

The lawyer’s duty to respect confidentiality is an obli¬

gation imposed by law. It is general, absolute and unlimit¬
ed in time. Since clients must necessarily confide in their
lawyers, this duty of confidentiality is established in the
public interest. Lawyers may not be released from this

8. See, e.g., Barclays Bank Pic v.

Eustice [1995] i WLR 1238.
cr Se ht _t di so be be

to
re

pr art.

co av

9. Sir Fred Phillips, Ethics of the

ve pn

nf ai
of
im e tp rasc n ca ca

al .

id la
es
e

at
Co

22si

Legal Profession: A New Order 86

en bl by
6-on
de

(2004).
ce e
13al

s. (“ a ei
,

10. [1995] F.S.R. 184.

:/ dulos
/w eint ur se se

Tph the mi
of
se

in s

11. See Andrew Boon & Jennifer

eer
w

fo uc
w. ru/c

¬ orr
rw

a
se pro
eitt po

rm h
le sto

Levin, The Ethics and Conduct of Law¬

cr fe
t

aot
h
goif edodef
s

et ss
hi raan pen

rio fu

yers in England and Wales 262 (1999).

e

f _

,
s tc a

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u u

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In
F
86 CONFIDENTIALITY Ch. 5

obligation by their clients, by any authority or, more

generally, by any other person.13
While the client is free to disclose confidential information, the
lawyer’s duty is not waived as a result.
The professional secrets doctrine, like the U.S. attorney-client
privilege and work product doctrine, provides protection against
compelled disclosure. Because it is not limited to communications
with the client (as is the attorney-client privilege) or to information
obtained in anticipation of litigation (as in the case of the work
product doctrine in most U.S. jurisdictions), its protection is even
broader." The professional secrets doctrine also extends in most
civil law countries to a broad range of other professionals, including
not only doctors and priests but accountants, financial advisers and
others. As a result, [t]he total effect under the civil law, as a
matter of long-established public policy, is that private information
is closely shrouded.”1-’
One of the most striking differences with U.S. confidentiality
conventions is the doctrine in most civil law systems that corre¬
spondence between a lawyer and his opposing counsel is protected
as confidential even from the client, unless the document bears a
stamp with a contrary indication. The official commentary on the
CCBE Code provides this explanation of the convention:
In certain member states communications between lawyers
(written or by word of mouth) are normally regarded as
confidential. This means that lawyers accept that those
communications may not be disclosed to others and copies
may not be sent to the lawyers’ own client. This principle
is recognised in Belgium, France, Greece, Italy, Luxem¬
bourg, Portugal and Spain. Such communications if in
writing are often marked as ‘confidential’ or ‘sous la foi du

One Palais. ,lfi

commentator describes this convention as it exists in

France as exemplary of the French lawyer’s greater independence

from clients and greater association with fellow lawyers.
Perhaps the strangest of French rules, from the United
States perspective, renders communications between avo-

sion, is punished by one year’s imprison¬ discovery rules as “a fundamental cul¬

ment and a fine of 15,000.”). tural difference”).
13. National Bar Council of France,
Harmonised Practice Rules, art. 2.1.
du in Th ve du to sp

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on
ar

5.

(a
t.

3 Ma

do
m,

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14. Geoffrey C. Hazard, Jr. & Angelo

Ma

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in ro

2p0t
9e8n orfia

0e6odl
pes E

yt MemE
y

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Dondi, Legal Ethics: A Comparative

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Study 208-09 (2004).

r
edd noamon
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15. Id. (describing this difference

io

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w
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with compelled disclosure under U.S.

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 87
Sec. A GENERAL PRINCIPLES AND COMPARISONS

cats confidential, meaning that an avocat may not disclose

them even to a client. This rule obtains not only in France
but also, with variations, in Greece, Italy, Portugal, Spain,
and other nations. In France, it has rested not on legisla¬
tion but on the regulations of the various bars, which are
based on tradition. It is flanked by other confidentiality
rules that also, to an American, seem at first sight to
subordinate clients to avocats ....
How can clients endure the rule of confidentiality, and
what purpose does it serve? One avocat I encountered
defended the rule as permitting more successful negotia¬
tions between counsel — an interesting contrast with the
United States, where some business clients believe that
settlement is more likely if lawyers, not clients, are on the
sidelines. Another, although favoring restriction of confi¬
dentiality, praised its use by one avocat to tell another that
his or her client is a cheat. A third skeptically described it
as one of the few rules generally obeyed because it discour¬
ages revelation of one avocat’ s misconduct by injured op¬
posing parties. All three of these explanations indicate how
the rule distances avocats from their clients while bringing
them closer to each other.1.
While the confidentiality of communications between counsel is
associated primarily with civil law regimes, England, a common law
country, recognizes a similar convention. It protects as confidential,
communications between lawyers that are designated “without

prejudice. ”ls
On the other hand, protection of the confidentiality of commu¬
nications between lawyers is by no means universal among Europe¬
an civil law countries. In Germany, a lawyer has an obligation to
disclose to her client communications between lawyers in the case,
and those communications may be admitted in court as evidence.111
Similarly, in Denmark a lawyer has a duty keep her client informed
of important correspondence from opposing counsel.2" Such corre¬
spondence will be admissible in a Danish court unless it is marked

the absence of evidentiary rules prohib¬

As Pu Kl La & Bu iting introduction of hearsay. Id.
b si
ne pen De lis fr uew Jo wL
e ¬ 18. Hazard, supra note 14, at 211.
ss p h o e h u
Th In ar ers of m th r Bna in bsFdr
e de tm , e r oarn 19. CCBE Explanatory Memoran¬
Le pe Fren Co Le fcE,et
ar n om t mp g :h dum, Commentary on art. 5.3 (adopted
d a ¬
ic niin La enc Prar & Id l A in May 1989, superseded in May 2006).
s , n g w e a a e a J.
Co ye Vi 27ctti 28 (Jl
This material is quoted from the older
e 5, icv 2- osh:
Ba mpa I &rs’Row C. eeCr 8 n eds
rc ra II ge a 3 .,t version of the Explanatory Memoran¬
19 el ti(f orm mApc o
99 v oo it cto dum. The newer version of the Explana¬
th ) sa e tn co te th ornru al
e me o t mm d ). e d l
ine s o tory Memorandum omits references to
“s a mo es enpr fu bgy pr
e
ve rv th ien r t o
atsa n
in ct ev e ¬of specific countries.
nt e e tr i to i id 20. Id.
co ings od borc, aon en in
mm uc et vo ce
ti w c
un on ee a ts
ic n ”
at
io
88 CONFIDENTIALITY Ch. 5

“without prejudice,” in which case the court will disregard it, and
the lawyer offering it will have violated the rules of professional
conduct.21
A primary purpose of the CCBE Code is to provide guidance to
lawyers engaged in transnational practice who are faced with the
dilemma of “double deontology,” which arises when lawyers are
subject to differing sets of ethical rules. Recognizing that the
convention of confidentiality for correspondence between counsel
may vary among jurisdictions, the CCBE Code provides specific
guidance for designating correspondence between lawyers as confi¬
dential.

5.3 Correspondence Between Lawyers

5.3.1. If a lawyer intends to send communications to
a lawyer in another Member State, which the
sender wishes to remain confidential or with¬
out prejudice he or she should clearly express
this intention prior to communicating the doc¬
uments.

5.3.2. If the prospective recipient of the communica¬

tions is unable to ensure their status as confi¬
dential or without prejudice he or she should
inform the sender accordingly without delay.22

3. Japan

The Japanese Code of Ethics for Practicing Attorneys provides

broadly that:
An attorney shall not disclose or utilize, without due
reason, confidential information of a client which is ob¬
tained in the course of his or her practice.21
Japanese lawyers who divulge confidential client information with¬
out “due reason” face criminal sanctions.-1
The Japanese duty of confidentiality may create a dilemma for
Japanese lawyers who represent companies subject to securities
regulation in the United States. In 2002, Congress passed the
21. Id.
gaged in such profession disclose, with¬
22. CCBE Rule 5.3.
out justifiableinformation
confidential grounds, another person’s
which has come
23. Japanese Federation of Bar Asso¬
ciations, Basic Rules on the Duties of to be known in the course of such pro¬
Practicing Attorneys, art. 23. fession, imprisonment with work for not
more than 6 months or a fine of not
24. Keiho |Japanese Penal Code],
art. 134 (“When a physician, pharma¬ more than 100,000 yen shall be im¬
cist, pharmaceuticals distributor, mid¬ posed.”), translation available at http://
wife, attorney, defense counsel, notary www.cas.go.jp/jp/seisaku/hourei/data/PC.
public or any other person formerly en¬ pdf (last visited Jan. 11, 2007).
Sec. A GENERAL PRINCIPLES AND COMPARISONS 89

Sarbanes-Oxley Act to address corporate fraud.2,1 The Securities

and Exchange Commission proposed regulations under the Sar¬
banes-Oxley Act that would have required a covered lawyer to
disaffirm documents and withdraw from representation if the law¬
yer discovered that documents she had prepared on behalf of a

publicly traded corporation were materially false or misleading. 2h

Several Japanese law firms argued that the rule conflicted with the
Japanese duty of confidentiality.

[T]he obligation to report to the Commission would, in

most instances, result in a breach of Article 23 of Chapter
IV of the Practicing Attorney Law of Japan .... Article 23
imposes a duty of confidentiality on all Japanese Attorneys
requiring them to maintain the confidentiality of informa¬
tion obtained in the course of their duties unless otherwise
required under a Japanese statute. This duty of confiden¬
tiality is regarded as one of the most important duties
imposed on Japanese Attorneys and is regarded as a funda¬
mental prerequisite for Japanese Attorneys to properly
represent clients and provide legal services ....

Exemptions from this duty are limited to those permitted

by statute, not rules or regulations prescribed by an agen¬
cy of the government. In addition, Japanese courts have
only allowed exceptions to the attorney-client privilege in
extremely limited circumstances, such as when disclosure

would prevent a serious violent crime.27

4. China

In its articulation of a lawyer’s duty of confidentiality, the

Lawyers Law of the People’s Republic of China emphasizes the
protection of “State secrets” as well the secrets of clients. It
provides that:

Lawyers shall maintain the confidentiality of any State

secrets and commercial secrets of the parties concerned

25. Sarbanes-Oxley Act of 2002, at http://www.sec.gov/rules/proposed/

Pub. L. No. 107-204, 116 Stat. 745. s74502/nagashimal.htm (last visited
Dec. 26, 2006); see also Stewart M.
26. Implementation of Standards of
Young, Comment, Whistleblowing in a
Professional Conduct for Attorneys, 67 Foreign Key: The Consistency of Ethics
Fed. Reg. 71,670 (proposed Dec. 2. 2002)
Regulation under Sarbanes-Oxley with
(codified, in part, at 17 C.F.R. pt. 205). the WTO GATS Provisions, 32 Denv. J.
27. Letter from Nagashima, Ohno & Int’l L. & Pol y 55, 77 (2003) (detailing
Tsuneshima to Jonathan G. Katz, Secre¬ responses from Japanese law firms to
tary, SEC (Dec. 18, 2002), available SEC regulations).
90 CONFIDENTIALITY Ch. 5

that they learn in the course of their practice. Lawyers

may not reveal the private affairs of the parties con¬

cerned.2*
Revealing the "the commercial secrets of a party” or the "private
affairs of an individual party” can result in suspension from prac¬
tice for three months to a year and confiscation of "illegal in¬
come. Revealing State secrets can lead to cancellation of a

lawyer’s practicing certificate and criminal liability.30

The need to protect the confidentiality of "State secrets” may
inhibit a Chinese lawyer’s ability to represent the interests of a
client accused of a crime. In cases involving "State secrets,” a
suspect may be denied counsel in the investigation phase of a case.31
When access is allowed to a client, authorities may insist on
remaining within hearing distance or record attorney-client conver¬
sations, thus breaching attorney-client confidentiality.32 As de¬
scribed by one commentator:

Often characterized as an official right to "be present” at

the lawyer-client meeting (hujian zaichang quaj), officials
insist on being present during meetings between lawyers
and suspects. Most officials attending such meetings are
those in charge of the criminal investigation in question.
Their presence naturally has a direct impact on the nature
of the conversation. Moreover, some local officials installed
video cameras or tape recorders to monitor the conversa¬
tion between lawyers and suspects.33
The duty of confidentiality to a client may also conflict with a
lawyer’s duty of disclosure to the state. While a lawyer has a duty
not to reveal "commercial secrets” or "private affairs” of clients,31
a lawyer can lose her practicing certificate and be subject to
criminal charges for "concealing important facts.”3’

5. Exceptions to Confidentiality
As noted above, the ABA Model Rules of Professional Conduct
and the rules of all U.S. jurisdictions allow for exceptions to a
28. Lawyers Lav/, art. 33 (P.R.C.). Rights; Lawyers Committee for Human
29. Lawyers Law, art. 44 (P.R.C.). Rights, Lawyers in China: Obstacles to
30. Lawyers Law, art. 45 (P.R.C.). Independence and the Defense of Rights
76 (1998).
31. See Ping Yu, Glittery Promise us.
Dismal Reality: the Role of a Criminal 32. Lawyers Comm, for Human
Lawyer in the People’s Republic of China Rights, Lawyers in China: Obstacles to
after the 1996 Revision of the Criminal
Independence and the Defense of Rights
Procedure Law, 35 Vand. J. Transnat’l 78 (1998).
L. 827, 836 (2002) (“Many complaints
have charged that lawyers were denied 33. Yu, supra note 31, at 839.
meetings with their clients under the
34. Lawyers Law, art. 33 (P.R.C.).
pretext that the case involved ‘state se¬
crets.’ ”); Albert Hung-yee Chen, An In¬ 35. Id. at 119; Zhang Fusen, China:
troduction to the Legal System of the
Outlines of the Legal System of the Peo¬
People’s Republic of China 188 (3d ed. ple’s Republic of China 295 (2004).
2004); Lawyers Committee for Human
Sec. A GENERAL PRINCIPLES AND COMPARISONS
91

lawyer’s duty of confidentiality. Those exceptions define circum¬

stances in which a lawyer may (or in some jurisdictions must)
disclose client confidences to prevent or mitigate harm to third
parties. ”’ They also generally allow a lawyer to disclose confidences
to defend herself against criminal or civil claims and to support
claims or defenses in a controversy with the client.3'
Some European jurisdictions make similar exceptions to the
duty of confidentiality. In the United Kingdom, a solicitor can
reveal confidential client information to prevent the client or a
third person from committing a crime that she reasonably believes
will lead to serious bodily harm.38 A solicitor is also not bound by
confidentiality when her services are being used to facilitate the
commission of a crime or fraud.”' Under drug trafficking and
terrorism legislation, a lawyer may have a duty enforced by crimi¬
nal sanctions to reveal to the police confidential though not privi¬
leged information regarding money laundering or financial assis¬
tance to terrorism even though the solicitor is in no way involved.1"
Disclosure is also allowed when necessary for a solicitor to establish
a defense to claims by a client or in disciplinary proceedings."
These exceptions to the duty of confidentiality are typical of those
in the rules of other legal systems, including, for example, the rules
of the International Tribunals for Rwanda and the former Yugo¬

slavia.12
The CCBE’s articulation of the principle of confidentiality
provides, however, for no exceptions.

2.3.2. A lawyer shall respect the confidentiality of all

information that becomes known to the lawyer in
the course of his or her professional activity.

2.3.3. The obligation of confidentiality is not limited in

time.

2.3.4. A lawyer shall require his or her associates and

staff and anyone engaged by him or her in the
course of providing professional services to observe

the same obligation of confidentiality.13

36. See Model Rule 1.6(b). 42. See International Criminal Tri¬
bunal for Rwanda, Code of Professional
37. Id.
Conduct for Defence Counsel, art. 8; In¬
38. See Boon, supra note 11, at 257. ternational Criminal Tribunal for the
Former Yugoslavia, Code of Professional
39. Id.-, see supra notes 8-9 and ac¬ Conduct for Defence Counsel Appearing
companying text. before the International Tribunal, art
40. Boon, supm note 11, at 260. 13.
41. Id. at 261. 43. CCBE Rules 2. 3.2-2. 3.4.
92 CONFIDENTIALITY Ch. 5

At least one commentator is skeptical that this rule reflects a true

consensus or common principle among member countries,44 and
points to the 1977 Declaration of Perguia, which found that:
While there can be no doubt as to the essential principle of
the duty of confidentiality, the [CCBE] has found that
there are significant differences between the member
countries as to the precise extent of the lawyer’s rights and
duties. These differences, which are sometimes very subtle
in character especially concern the rights and duties of a
lawyer vis-a-vis his client, the courts in criminal cases, and
administrative authorities in fiscal cases.45
Indeed, whereas in France the lawyer’s duty of confidentiality
is defined as “general, absolute, and unlimited in time,”46 other
European community civil law countries explicitly recognize excep¬
tions to confidentiality. In Italy, for example, the ethical code
permits disclosure broadly where “necessary” to prevent the client
from committing any “particularly serious crime” or for self-de¬
fense in a controversy with a client.47

Discussion Questions:

5-1: Should a client have the right to waive confidentiality or

privilege regarding communications with the client’s lawyer?
What values or interests are served by requiring a lawyer to
protect confidentiality or assert the privilege on behalf of a
client even if the client is willing to waive?
5-2: Should a lawyer be allowed to communicate with lawyers who
represent opposing interests on a basis of confidentiality sim¬
ply by designating the communication confidential? Would a
lawyer’s freedom to do so tend to advance or inhibit the
resolution of disputes? Should the lawyer be allowed or re¬
quired to keep such communications even from her own
client? What advantages, if any, and what problems, if any, do
you see arising from such a rule?
5-3: Do you think that maintenance of client confidentiality is
more or less important in the representation of a criminal

See Laurel S. Terry, An Intro¬

44. ugia were incorporated into the CCBE
Code of Conduct. See id. at 9; see also
duction to the European Community’s Council of Bars and Law Societies of
Legal Ethics Code Part I: An Analysis of
the CCBE Code of Conduct, 7 Geo. J. of Europe, History of the CCBE 2.1 (2005),
Legal Ethics 1, 27 (1993) (“Although available at http://www.ccbe.org/doc/
Rule 2.3 appears to be absolute, there histoire/en/sommaire_en.htm (last visit¬
may be more disagreement lurking be¬ ed Jan. 19, 2007).
hind this rule than the rule suggests.”). 46. National Bar Council of France,
45. Id., quoting The Declaration of
Harmonised Practice Rules, art. 2.1.
Perugia on the Principles of Professional
Conduct of the Bars and Societies of the 47. Ethical Code for Italian Lawyers,
European Community (1977). Most of art. 9.
the principles of the Declaration of Per¬
Sec. B TRANSNATIONAL LITIGATION 93

defendant than in representation of a civil client? Why? What

difficulties would criminal defense counsel face if unable to
have confidential communications with her client?

5-4: While most jurisdictions make exceptions to client confiden¬

tiality to protect the interests of third parties, not all do. And
among those that do, there are significant differences as to
when exceptions are made. Do these differences tell us any¬
thing about the comparative values that jurisdictions place on
confidentiality and competing duties? On the role of attorneys
within those jurisdictions? Are you surprised at all by which
jurisdictions make the narrowest or broadest exceptions? Why
or why not?
5-5: As global commerce increases, do you expect that the confi¬
dentiality rules of various jurisdictions will become more
uniform? Why or why not?

B. CONFIDENTIALITY AND PRIVILEGE IN

TRANSNATIONAL LITIGATION
A lawyer whose practice extends across national boundaries
may be subject to the dilemma of conflicting legal and ethical
demands. What is required by one jurisdiction may be considered
unethical in another jurisdiction. Such a dilemma was faced by
foreign lawyers in China in 1996 when the Chinese Ministry of
Justice demanded that foreign law firms submit client question¬
naires that called for confidential client information.

Patricia Ginsberg
An Ethical Dilemma of American Attorneys in China:
The Conflict Between the Duty of Confidentiality to
Clients and the Requirement of Disclosure to the
Chinese Government
in Rights, Liability, and Ethics in International
Legal Practice 397, 403-06 (Mary C. Daly & Roger J. Goebel eds., 2nd Ed. 2004). 1

In September 1996, the [Ministry of Justice (“MOJ”)] demand¬

ed quarterly reports from foreign lawyers and requested from them
information usually considered confidential. The information re¬
quested included client lists, locations of projects under consider¬
ation, affiliations with Chinese law firms, business reference lists,
and the value of deals in negotiation. For an American attorney
who has obeyed more stringent confidentiality rules, compliance
with the MOJ’s demand would jeopardize his or her attorney-client
relationship and also conflict with the attorney’s duty as defined by
the American Bar Association’s Model Code and Rules. . . .
Although both the Model Code and the Model Rules have
exceptions to the duty of confidentiality, they apply only in limited

1. Reprinted with permission of Jur- www.jurispub.com.

is Publishing, Huntington, New York,
94 CONFIDENTIALITY Ch. 5

circumstances. ... In light of the American lawyers’ strict duty of

confidentiality, they face a dilemma when the Chinese government
demands certain client information.

Because the MOJ failed to provide a policy justification for the

requirement, most lawyers are still unclear as to the exact use of
the information requested or, worse, as to the possibilities for
misuse of the information. In China, corruption is rampant. Since
most foreign law firms’ clients and work relate to investment, if
confidential client information (such as investment value) leaks
into the wrong hands, the monetary losses could be enormous.
At the moment, some foreign attorneys are simply complying
at a minimum. Some notify their clients of the type of information
they are submitting, while others provide only non-committal re¬
sponses. However, that may be insufficient, since the government
asks for detailed information ....
The client questionnaires may have the effect of restricting the
activities of foreign lawyers. To say the least, it could deter prospec¬
tive clients from using foreign law firms, prevent candor between
the lawyers and clients, and adversely affect legal counseling. The
MOJ’s protectionism may be the driving force behind this require¬
ment, for the same disclosure requirement has not been applied to
local firms. However, several factors will continue to prevent for¬
eign companies from entrusting local law firms with all their legal
work.
First, members of the Chinese legal profession remain a less
autonomous group than their Western counterparts, despite the
grant of more independence under the Lawyers’ Law. For instance,
if the policedemand a lawyer’s fdes, the local attorney may be
powerless to resist compliance. Western companies familiar with
the intricate mesh of Chinese bureaucracy, politics, and police
powers are probably fully aware of the danger of information falling
into the wrong hands. Second, as mentioned earlier, few of China’s
lawyers have the training and experience needed for conducting the
sophisticated legal services most multinational companies seek. For
example, in 1996 almost thirty percent of China’s lawyers lacked
university degrees or instruction beyond that level. Therefore, even
if the disclosure requirement of the client questionnaires discourag¬
es prospective clients form seeking services from foreign law firms,
most local law firms may be unqualified to take up the challenges of
current and future legal demands. Finally, China still has a dearth
of lawyers. With only about one lawyer for every twelve thousand
Chinese, the number of Chinese lawyers will not satisfy the legal
needs generated by China’s rapid social and economic development.
It is likely that foreign lawyers will try to persuade the MOJ to
eliminate the client questionnaire. Nevertheless, foreign attorneys
Sec. B TRANSNATIONAL LITIGATION
95
need to be aware that their legitimacy in China at the moment is
subject to the political, cultural, and economic atmosphere of the
country. Like many things in China, foreign attorneys’ activities in
China are contingent upon the state’s perception of what are
national priorities, which could change. Therefore, cultural and
political sensitivity must be a vital part of foreign lawyers’ ap¬
proach. Thus, they may not want to base their reasoning entirely
on the American legal standard. By basing arguments solely on, for
example, the ABA Model Code and Model Rules, foreign attorneys
may sound condescending or too centered on American experiences
and ignorant of the special circumstances existing in China. China’s
special circumstances include, among other things, its protection¬
ism toward the newly revived legal community, its national priority
of economic development, and its desire to participate as a world
leader. Teaming up with local lawyers when arguing for changes in
the Chinese protectionism procedure may make the lobbying effort
more effective, especially if the local attorneys recognize that, while
the government may today only require disclosure from foreign
attorneys, tomorrow the government may exert even more control
over local attorneys by using similar or even more draconian
measures.

What happens when disclosure of communications privileged

under the ethical code or laws of one country is demanded in an
international proceeding by a commission whose member states
protect the privilege to varying degrees? This issue arose when the
European Commission ordered a British company, AM & S Europe
Ltd., to submit itself to a documentary verification procedure.
When the Commission rejected the company’s claim of privilege
with regard to certain documents, the question was brought before
the European Court of Justice. Finding common criteria for protec¬
tion of lawyer-client communications among European Economic
Community (“EEC”) Member states, the Court upheld the privilege
for communications with an independent lawyer in connection with
the defense of a client.48 In doing so, the Court recognized that the
contours of and rationales for the privilege may vary among EEC
member states.

AM & S EUROPE LTD. v. COMMISSION

Case 155/79 [1982] E.C.R. 1575, [19821 2 C.M.L.R. 264.

As far as the protection of written communications between lawyer

and client is concerned, it is apparent from the legal systems of the

48. The implications of the require- in the next chapter, Chapter 7, “Repre-
ment of independence for communica- senting Organizations.”
tions with in-house counsel are explored
96 CONFIDENTIALITY Ch. 5

Member States that, although the principle of such protection is

generally recognized, its scope and the criteria for applying it vary,
as has, indeed, been conceded both by the applicant and by the
parties who have intervened in support of its conclusions.

Whilst in some of the Member States the protection against disclo¬

sure afforded to written communications between lawyer and client
is based principally on a recognition of the very nature of the legal
profession, inasmuch as it contributes towards the maintenance of
the rule of law, in other Member States the same protection is
justified by the more specific requirement (which, moreover, is also
recognized in the mentioned states) that the rights of the defence
must be respected.
Apart from the differences, however, there are to be found in the
national laws of the Member States common criteria inasmuch as
those laws protect, in similar circumstances, the confidentiality of
written communications between lawyer and client provided that,
on the one hand, such communications are made for the purposes
and in the interests of the client’s rights of defence and, on the
other hand, they emanate from independent lawyers, that is to say,
lawyers who are not bound to the client by a relationship of
employment.
Viewed in that context Regulation no. 17 must be interpreted as
protecting, in its turn, the confidentiality of written communica¬
tions between lawyer and client subject to those two conditions, and
thus incorporating such elements of that protection as are common
to the laws of the Member States.

Discussion Questions:

5-6: Assume you represent for purposes of U.S. litigation a French

individual who has business interests in the United States.
French counsel for the client has engaged in communications
with counsel for opposing parties and has designated the
correspondence as “sous la foi du Palais.” That correspon¬
dence is now called for by discovery requests in the U.S.
litigation. Can you legitimately refuse on behalf of your client
to produce that correspondence? What arguments could be
made for or against production?
5—7 : You continue to represent the same French client. You are a
member of the bar of the state of New Jersey. New Jersey
Rule of Professional Conduct 1.6(b) provides, in part, that: “A
lawyer shall reveal (confidential client] information to the
proper authorities, as soon as, and to the extent the lawyer
reasonably believes necessary to prevent the client: (1) from
committing a criminal, illegal or fraudulent act the lawyer
believes is reasonably is likely to result in death or substantial
Sec. B TRANSNATIONAL LITIGATION 97

bodily harm or substantial injury to the financial interest or

property of another.” Your client reveals to you that he
intends to exaggerate the extent of his financial holdings in
the United States for purposes of a $5 million Euro commer¬
cial loan application to a Paris bank. What are your ethical
duties?

5-8: You are a U.S. lawyer and a member of the California bar who
works in your firm’s Shanghai office. Most of your work is
advising Chinese companies with regard to distribution of
their products in the United States and investment in U.S.
markets. You are summoned to an interview at a Chinese
government agency and requested to provide information
about your clients’ plans for further investment in the United
States. What are your ethical duties? Assume that you are
told that your continued practice in China depends on your
cooperation with the Chinese government agency.
 Chapter 6

INCOMPATIBLE RELATIONS

A. CLIENT LOYALTY; INCOMPATIBLE RELA¬

TIONS OF LAWYERS

Basic to the lawyer-client relationship is the premise that

lawyers owe clients a duty of loyalty. Included in the duty of loyalty
is the responsibility of providing the client with independent profes¬
sional judgment. When an outside influence threatens the lawyer’s
ability to provide independent judgment, a conflict of interest
arises. This commonly occurs when a lawyer, serving multiple
clients, obtains confidential information from one client that would
benefit another. In such a situation the lawyer must decide between
breaching one client’s confidentiality or failing to serve the other
client’s interest to the best of his ability. Either choice is a breach
of independent professional judgment and thus a conflict problem
that must be analyzed.

Analysis of the varying conflicts of interest has become increas¬

ingly important for several reasons. First, lawyers change jobs
during a career with much greater frequency today than did law¬
yers of even twenty years ago. With his old clients, the moving
lawyer carries potential conflicts of interest with him into the new
job. Second, corporate mergers, acquisitions, dissolutions and dives¬
titures occur at a much greater rate today than they did even
twenty years ago. When corporate clients and their adversaries buy
or sell parts of their firm, potential conflicts arise. Third, law firms
are much bigger today than firms of even twenty years ago. Many
types of conflicts are now presumed to effect entire firms rather
than the individual conflicted lawyers within the firms, thus con¬
flicts increase on an exponential level with the increasing size of
the firm. Finally, the job changing effect on conflicts of interest is
magnified considering that many large firm lawyers move to other
large firms and continue to do work within their specialized field of

98
Sec. B INDEPENDENCE 99

expertise. The result is that moving lawyers are much more likely
to acquire confidential information from opposing clients in the
same or substantially similar matters.
Conflicts of interest occur in at least three common situations:
1) third party interference, 2) conflicting lawyer and client inter¬
ests, 3) conflicting interests of multiple clients. The central princi¬
ple implicated in all conflict of interest problems is that a lawyer
must be able to exercise independent judgment on behalf of each
client. When a lawyer is unable to exercise independent judgment
on the behalf of each client, a potential conflict arises. When
analyzing conflict of interest problems, it is important to ask the
following questions:
1. What is the source of the conflict?

2. Does the conflict meet the threshold requirement of

the rule that is implicated?
3. Is the conflict one that imputes to the entire law
organization?
4. If so, can the affected lawyer be effectively screened or
isolated form the organization?
5. Is the conflict of a type that allows client waiver?
6. If so, what has to occur for the waiver to be effective?
It is important to recognize at the onset that these questions go
to the heart of the interests that underline the rules regulating
conflicts of interest: 1) the concern that confidence must be main¬
tained 2) the concern that loyalty to the client not be compromised
and 3) the concern that even the appearance of impropriety is to be
avoided.

B. INDEPENDENCE

The term “independence” is used to describe a necessary

lawyer attribute when dealing with conflict of interest issues.
Considering the extensive use of the term “independence,” it is
important to understand what lawyers must be independent of in
order to fulfill their duty of loyalty to their clients. The definition of

independence depends largely on a country’s legal system and the

specific jurisdiction in which the conflict arises. In some European
jurisdictions, “independence” is often considered in relation to
state control. In this sense, “independence” connotes a willingness
to oppose the state’s position. In the United States, this meaning of
independence is largely a foregone conclusion as the concept of
state control of lawyers is anathema to the American legal system.
Instead, the term “independence” refers to other influences that
100 INCOMPATIBLE RELATIONS Ch. 6

would jeopardize the lawyer’s loyalty to the client such as the

lawyer’s own personal interest, third parties that seek to influence
the lawyer’s decisions or other clients whose interests compete with
those of the client in question.

In some European jurisdictions, the term “independence” can

take on an alternative meaning that refers to the client’s own
demands. This occurs when a client’s demands are unreasonable or
harmful to the public interest and the lawyer must remain indepen¬
dent of the client’s wishes. In France, the term independence
reflects an especially radical ideal. Traditionally, a lawyer (or avo-
cat) was an independent person who lends his eloquence and
credibility to someone in whose cause he believes and who needs his
help. An avocat was not an agent of the client, and thus the client
had no control over the avocat. The avocat was free to accept or
reject a client, and even after accepting, to withdraw after giving
proper notice. Furthermore, communication between avocats was
considered confidential meaning that an avocat would not disclose
any such communications even to their own client.
In the United Kingdom, the makeup of the legal profession has
specific implications on the concept of legal independence. The legal
profession in the United Kingdom is divided into two branches:
barristers and solicitors. Barristers are governed by the Bar Code of
Conduct which contains no provisions concerning conflicts of inter¬
est. This is due to the fact that barristers can only be instructed by
solicitors and have not direct clients except for solicitors. For the
barrister, the primary duty of loyalty is to the lay client (the
solicitor’s client) and not to the professional client (the solicitor). If
a barrister should become aware of a conflict between his lay client
and his professional client, he should advise the lay client to seek
another professional advisor. Solicitors, on the other hand, are
governed by the Solicitor’s practice rules which do include provi¬
sions prohibiting conflicts of interest. The substance of these rules
is similar to those in the United States. The principle advantages

for the client of having both barristers’ and solicitors’ duties

regulated by their respective professional bodies is the dual layer of
protection against conflicts of interest and the fact that the law¬
yer’s duties can be enforced much more quickly than through the
normal legal process.
In the United States, a related meaning of the term means
nearly the opposite. In the United States, lawyers may reject
clients, but once having accepted a client, a lawyer must follow
many of their instructions and may withdraw only for cause unless
the client consents. Thus, the American lawyer is not responsible
for the views of the client and is given a kind of independence that
allows the lawyer to engage in advocacy for distastefully motivated
clients as long as that advocacy is within legal limits. In this
Sec. C STANDARDS 101

chapter, the term “independence” refers mainly to the idea of

independent judgment, judgment not subject to the influence of
threatening, competing interests of third parties, the lawyer’s per¬
sonal interests, other clients, and the state.

C. STANDARDS
1. U.S. Standards

The ABA Model Rules discussing conflicts of interest are found

in MR 1.7 through 1.13 and 1.18. Model Rule 1.7 sets out the
general standards for the three primary sources of conflict of
interests: third party interference, lawyer interests, and multiple
client interests. MR 1.7(a) states, in part that:
A lawyer shall not represent a client if the representation involves a
concurrent conflict of interest. A concurrent conflict of interest
exists if:

1) the representation of one client will be directly adverse

to another client; or
2) there is a significant risk that the representation of
one or more clients will be materially limited by the
lawyer’s responsibilities to another client, a former
client, or a third person or personal interest of the
lawyer.
To determine whether a direct conflict of interest exists, the
American lawyer should adopt reasonable procedures, appropriate
for the size and type of the firm and practice, to determine in both
litigation and non-litigation matters and the persons involved. Even
where there is no direct adverseness, a conflict of interest exists if

there is significant risk that a lawyer’s ability to consider, recom¬

mend or even carry out an appropriate course of action will be
materially limited as a result of the lawyer’s other responsibilities
or interests. This can occur if the conflict in effect forecloses
alternatives that would otherwise be available to the client. The
critical questions in identifying conflicts are the likelihood that a
difference in interests will eventuate and, if it does, whether it will
materially interfere with the lawyer’s independent professional
judgment in considering alternatives or foreclose courses of action
that reasonably should be pursued on behalf of the client.
Because most conflicts put client interests at risk and because
client autonomy and decision-making are values worthy of some
respect, clients are empowered to waive most conflicts of interest.
MR 1.7(b) states,
Notwithstanding the existence of a concurrent conflict of inter¬
est ... a lawyer may represent a client if:
102 INCOMPATIBLE RELATIONS Ch. 6

1- the lawyer reasonably believes that the lawyer will be

able to provide competent and diligent representation
to each affected client;

2. the representation is not prohibited by law;

3. the representation does not involve the assertion of a

claim by one client against another client represented
by the lawyer in the same litigation or other proceed¬
ing before a tribunal; and

4. each affected client gives informed consent, confirmed

in writing.

Informed consent requires that each affected client be aware of

the relevant circumstances and the material and reasonably fore¬
seeable ways that the conflict could have adverse effects on the
interests of that client. The information required depends on the
nature of the conflict and the nature of the risks involved. The
requirement of a writing does not supplant the need for the lawyer
to discuss the risks and advantages of representation burdened by
the conflict. The writing is required in order to impress upon
clients the seriousness of the decision the client is being asked to
make and to avoid disputes that might later occur in the absence of
a writing. Ordinarily, clients may consent to representation not¬
withstanding a conflict. However, some conflicts are non-consenta-
ble, meaning that the lawyer involved cannot properly ask for such

agreement or provide representation on the basis of a client’s

consent. Consentability is typically determined by considering
whether the interests of the clients will be adequately protected if
the clients are permitted to give their consent to representation
burdened by the conflict.

A variety of particular transactions between lawyers and

clients are governed by specific conflicts rules. Model Rule 1.8(a)
addresses business transactions between lawyer and client, and
requires the client be informed of his right to independent legal
counsel, that the transaction be objectively reasonable, and that the
transaction itself be in writing and in terms that can be understood
by the client. Other particular situations, described in Model Rule
1.8 give rise to unique conflict rules
• A lawyer is prohibited from drafting a document that

makes a substantial gift to the lawyer or the lawyer’s

close relatives (MR 1.8(c))

• A lawyer is prohibited from obtaining media rights

about a clients case before the representation has con¬
cluded (MR 1.8(d))
Sec. C STANDARDS 103

• A lawyer is prohibited from providing the client with

financial assistance outside of the scope of the repre¬
sentation itself (MR 1.8(e))

• A lawyer is prohibited from entering into a contract

with a client that prospectively limits the lawyer’s
liability for malpractice MR 1.8(h)

• A lawyer is prohibited from settling malpractice claims

with unrepresented clients or former clients, unless the
lawyer first advises the client or former client that
independent counsel is advisable. MR 1.8(h).
• A new Model Rule adopted in February 2002, 1.8(j),
prohibits most sexual relationships between lawyers
and clients. The rule does not prohibit sexual relation¬
ships that predated the beginning of the lawyer-client
relationship.
Model Rule 1.9 outlines the duties that a lawyer owes to their
former clients. Specifically, the rule prohibits a lawyer who has
represented a client in a specific matter from representing another
client in a substantially related matter when the second client’s
interest are materially adverse to the former client. Furthermore,
in regards to matters that are not substantially related, a lawyer is
not allowed to use any information gained during the former
representation to the disadvantage of a former client. This rule
reflect that even after the formal termination of the lawyer/client
relationship, the lawyer has certain continuing duties of loyalty and
confidentiality that remain steadfast.
As a general rule, according to Model Rule 1.10, when a lawyer
has a conflict of interest, that conflict imputes to (transfers to,
extends to) all of the lawyers in the law organization (usually a law
firm) in which the lawyer works. Imputed disqualification rule is
mainly based on the notion that confidential information possessed
by one lawyer is effectively possessed by all lawyers in the same
firm. Motions to disqualify counsel and entire law firms for which
the disqualified lawyer works have become a favored tactical device
in litigation, effectively denying an opposing party her counsel of
choice and preserving the integrity of the justice system from the
threat of conflicts of interest.

An increasing number of courts, supported by Model Rules

1.10, 1.11, and 1.12, have ruled that effective screening procedures
will prevent the application of the imputed disqualification rules.
Under such procedures the conflicted lawyer is isolated from other
lawyers in the organization by various devices. When a court is
considering a motion to disqualify, several factors may be consid¬
ered in addition to the conflicts principles that are relevant in the
disciplinary context. Effective screening procedures instituted after
104 INCOMPATIBLE RELATIONS Ch. 6

the conflicted lawyer has been in the law firm for some time or,
worse yet. after the motion to disqualify is filed, make the screening
procedures less likely to excuse imputed disqualification. By con¬
trast, a motion to disqualify filed well after the moving party had
reason to know of the presence of the conflicted lawyer or, worse
yet, close to the date of trial when the presence of the conflicted
lawyer had been known to the moving party for some time, make
the motion to disqualify less likely to be successful. When a motion
to disqualify is granted, litigation is set back while replacement
counsel becomes familiar with the matter.

Resolution of a conflict of interest requires the American

lawyer to 1) clearly identify their client or clients; 2) determine
whether a conflict exists; 3) decide whether the representation may
be undertaken despite the existence of a conflict; and 4) if so,
consult with the clients affected and obtain their informed consent,
confirmed in writing.

2. European Standards

The relevant conflict of interest rules for lawyers in the Euro¬

pean Union are controlled by the Council of the Bars and Law
Societies of Europe and found in the CCBE Code § 3.2. The general
rule regarding conflicts of interest greatly resembles the American
rules discussed above. Rule 3.2.1 states that

a lawyer may not advise, represent or act on behalf of two

or more clients in the same matter if there is a conflict, or
a significant risk of a conflict, between the interests of
those clients.

However, there are several rules dealing with the lawyer’s

procedure once a conflict of interest has been established that are
in stark contrast to the American rules. First, once a conflict has
been recognized, CCBE Code $ 3.2.2 states that,

a lawyer must cease to act for both clients when a conflict

of interests arises between those clients and also whenever
there is a risk of a breach of confidence or where his
independence may be impaired.

Furthermore, the CCBE § 3.2.3 deals with new clients

Code
that potentially have conflicts of interest. In those situations, the
Code dictates that,* ‘a lawyer must also refrain from acting for a
new client if there is a risk of a breach of confidence entrusted to
the lawyer by a former client or if the knowledge which the lawyer
Sec. C STANDARDS 105

possesses of the affairs of the former client would give an undue

advantage to the new client.”
These rules reflect the principle in the European Union that
clients may not waive conflicts. This reflects the differing vision of
the independence of the lawyer from external influences. The
differing vision most likely results from the fact that the American
conflict of interest doctrine is rooted in principles of agency law
while the European Union is not.

Most European civil law countries follow the European Union’s

rules in regards to the client’s ability to waive a potential conflict of
interest. In these countries, the client often has no say in the
decision whatsoever. For example, Article 37(1) of the Ethical Code
for Italian lawyers states that, “if conflict is potential, the client
has no say in the matter. Lawyers must decline new business that
potentially creates a conflict with the interests of existing clients.”
In France, the Law Decree Article 155 states that, “if the conflict is
potential, a client may waive. If it is actual, the client may not. If
the potential is not apparent when the lawyer begins representa¬
tion but subsequently manifests, the lawyer must advise the client
to seek alternative representation.” In Germany, a lawyer cannot
participate in a matter where he or she has previously given advice
or represented the opponent. Engaging in conflicted representation,
like breaching confidentiality, amounts to criminal activity.

3. Japanese Standards

In Japan, the Code of Ethics for Practicing Attorneys and

Practicing Attorney Law enumerate the rules regarding conflicts of
interest. Generally, the rules governing conflict of interest are
similar to those in the United States in that they essentially allow a
client to waive a conflict of interest in some but not all matters.
Much like in the United States, communication with a client is
necessary once a potential conflict arises. Article 25 of the Code of
Ethics for Practicing Attorneys states that “if an attorney has a
special relation with the opposite party in a matter and it may be
prejudicial to the fiduciary relationship between him or her and his
or her client, he or she shall notify the client of such circum¬
stances.”
Article 26 outlines those general cases in which a client may
not waive the conflict of interest:
(1) A matter in which the opposite party has consulted
the attorney, and the degree and method of the con¬
sultation are based on a fiduciary relationship.

(2) A matter in which a client’s interest conflicts with

that of a client in another matter the attorney is
handling.
106 INCOMPATIBLE RELATIONS Ch. 6

(3) A matter in which the opposite party is at the same

time represented by the attorney in another matter.
As well as those general cases in which the client may waive
the conflict:

(4) A matter in which the attorney was asked by the

opposite party to take another matter the attorney is
handling.

(5) A matter which the attorney handled in the past as a

public servant, a person who engaged in public affairs
under laws and rules, or an arbitrator.

Article 25 of Practicing Attorney law also gives an expanded

list of cases that lawyers are not allowed to handle. In this section,
they are specified as:
1) Cases in which he/she supported the adverse party in
the consultation requested, or accepted the adverse
party as his/her client;
2) Cases in which he/she was consulted by the adverse
party and the extent and form of the consultation was
such that it could be considered as being based on the
lawyer-client relationship of mutual trust;
3) Any other case he/she is requested to undertake by the
adverse party to the case he/she has already undertak¬
en (can be waived by client);

4) Cases that he/she handled as a public servant in the

course of his/her duties;

5) Cases that he/she handled as an arbitrator in arbitra¬

tion procedures;

6) Cases in which the [attorney’s law office] supported

the adverse party in the consultation requested or
accepted the adverse party as its client, and in which
he/she was engaged as a partner of or practicing attor¬
ney employed by said [office]:
7) Cases in which the [law office] was consulted by the
adverse party and the extent and form of the consulta¬
tion was such that it could be considered as being
based on the lawyer-client relationship of mutual
trust, and in which he/she was engaged as a partner of
or practicing attorney employed by said [office];

8) Cases that have already been undertaken for the ad¬

verse party thereto by the llaw office] of which he/she
is a partner or employee:
Sec. C STANDARDS 107

9) Any other case that the corporation defined in Article

30-2, paragraph 1, of which he/she is a partner or
employee, is requested to undertake by the adverse
party to the case said corporation has already under¬
taken (and he/she is engaged in).

Articles 27-29 deal with specific issues related to conflict of

interest problems. Essentially, anytime a matter will inhibit a
lawyer’s fairness, because of other attorneys in his office, another
attorney’s clients, or the lawyer’s own clients, the lawyer is not
allowed to proceed with the matter. If the attorney has already
taken the matter and later learns of a potential conflict, the
attorney has an obligation to notify the client and take all appropri¬
ate steps to remove the conflict. The rules stress that the attorney
has a duty obtain as much knowledge as possible before taking the
matter so they should rarely learn of a conflict while already
representing a client with a conflict of interest.

4. Australian & New Zealand Standards

Conflicts of interest problems have become the most frequent

ethical problems facing Australian and New Zealand lawyers today.
A lawyer used to be able to expect confidence and understanding in
his relationship with a client and vice versa. The relationship has
become much more adversarial as lawyers must now anticipate
claims, litigation and possible disciplinary proceedings from their
client. The professional conduct rules emphasize the need for
lawyers to give “undivided fidelity’’ to a client’s interests. The need
for loyalty to a client will at times be detrimental to the lawyer’s
business requiring the rejection of another client. However, in
situations where client’s still wish to employ a lawyer, despite a
known conflict of interest , the various professional codes and rules
require lawyers to be fully open and candid with their clients.
Each jurisdiction has enacted rules designed to deal with the
problem of representing multiple parties in contentious matters.
Generally speaking there are two principal approaches to this
problem. The most common is “broad brush’’ approach, whereby a
single rule purports to govern every situation. With regard to
conflicts arising out of concurrent representation, the broad rule is
that lawyers need to give full and effective representation to their
clients and this may not be possible if the interests of two clients
actually or potentially clash. Rule 7.4 of the Professional Conduct
Rules states “A practitioner shall not give legal advice to a person
where he [or she] knows that the interests of that person are in
conflict or likely to be in conflict with the interests of his client
other than advice to secure the services of another practitioner.’’
The Northern Territory Professional Conduct Rule 9A3 echos this
108 INCOMPATIBLE RELATIONS Ch. 6

idea, stating "A practitioner . . . shall only represent both parties in

matters where to do so is not likely to prejudice the interests of
either client and both clients are fully informed of the nature and
implications of such conflict and voluntarily assent to the practi¬
tioner acting or continuing to act.” Similarly, Rule 1.04 of the New
Zealand Rules of Professional Conduct for Barristers and Solicitors

reads: "A practitioner shall not act for more than one party in the
same transaction or matter without the prior informed consent of
both or all parties.”

On the other hand, there is a “specific” approach, which aims

to identify and address individual instances of non-contentious
representation. The relevant Capital Territory rule illustrates this
approach in stating that prohibitions against a lawyer acting for
conflicting clients can be overcome in certain transactions and
under certain circumstances. Specifically, the rule only applies to
(1) buyers and sellers of a land or business; (2) mortgagor and
mortgagees in a matter concerning the mortgage of land; and (3)
lessor and lessee in a matter concerning the leasing of land. In
those situations, a lawyer can represent both sides of the transac¬
tion if (1) the parties are existing clients of the lawyer, or are
related corporations or are related by blood, adoption or marriage;
(2) the rule is brought to the knowledge of both parties; and (3)
both parties, having that knowledge, instruct the lawyer in writing
in a form specified by the rule.

With regard to conflicts that arise from the former representa¬

tion of a client, called successive conflicts, a court’s decision to
disqualify a lawyer depends on the balancing of several interests.
Specifically relevant are the interest of the former client (loyalty
and confidentiality), the interests of the general public (the appear¬
ance of impropriety), the interests of the current client (the choice
of legal representation), and the interests of the lawyer. First, in
balancing these interests, Australia and New Zealand have focused
on the appearance of impropriety as a justification for restraining
practitioners from acting in relation to litigation. Second, it is the
possibility, not the probability, of misuse of confidential informa¬
tion that the court will focus on in determining if disqualification is
necessary. The court must assess whether the reasonable observer
aware of all the relevant facts would perceive a real possibility of
misuse of confidential information. On the other hand, the require¬
ment that the possibility of disclosure be “to the detriment” of the
former client is a medium through which the lawyer is protected
from frivolous applications to disqualify. Usually, the burden is on
the plaintiff to identify the information and to prove on the balance
of probabilities that the information has been communicated to,
and misused by, the defendant.
Sec. D IMPUTED DISQUALIFICATION 109

D. A BIT MORE ON IMPUTED DISQUALIFICA¬

TION

The concept of imputed disqualification spreads a single law¬

yer’s conflict to the rest of her firm or other legal organization as if
it were a contagious disease. The basic notion is that what threat¬
ens one lawyer’s independent judgment, threatens that of everyone
associated with that lawyer: the law expects confidences to be
shared among lawyers in a firm and expects that lawyers in a firm
will have some loyalty to one another and their collective business
interests. Those underpinnings are less true for multinational legal
organizations whose Munich lawyers may never communicate with
their colleagues in Hong Kong or Los Angeles except when a
specific need for collaboration arises. The law is somewhat behind
the reality in continuing to assume imputation for most conflicts,
most of the time.

Relationship Between Lawyer & Finn

In many countries, if one lawyer in a firm has a conflict of
interest with a client, no lawyer in the same firm or other legal
services organization can represent the client. This seems to be
based on the idea that information can be so easily shared within a
firm, and zealous and unbiased representation might be endangered
if two lawyers in a firm represent clients with adverse interests.

Most modern legal ethics codes treat the legal firm as an

extension of the attorney himself. The CCBE Code includes a short
paragraph that applies the conflict of interest rules for an individu¬
al lawyer to the firm as a whole.1 The Code of Sweden also treats
the connection between a lawyer’s own conflicts and a resulting
conflict for the firm as almost assumed. Although Sweden’s Code
does not provide a separate section for conflicts for the firm, it
includes the idea directly in the original conflict of interest rule,
stating

A Member must decline an engagement offered if he, an

assistant lawyer of his firm or a Member who is his
employer or partner or with whom he shares office facili¬
ties: . . ,2 and goes on to provide conflict of interest rules.
There is often no differentiation between the conflict of

1. Code of Conduct for Lawyers in 2. Code of Conduct for Members of

the European Union (Oct. 28, 1988), the Swedish Bar Association (Nov. 9
http:/ www\ ccbe.org/doc/En/code2002_ 1984), http://www.ccbe.org/doc/En/code_
en.pdf (“Where lawyers are practicing in sweden_en.pdf.
association, paragraphs 3.2.1 to 3.2.3
above shall apply to the association and
all its members.”).
110 INCOMPATIBLE RELATIONS Ch. 6

interest rules for an individual attorney and for the firm as

a whole.

In Japan, the rules for legal firms are similar to the rules for
the individual bengoshi himself. Based on whether the “matter” is
unrelated or related, a bengoshi may have to get the client’s
consent before representing a client whose interests conflict with a
client being represented by another bengoshi in the firm. 5 If the
matters are related, or if the two clients are opposing parties in the
same matter, a bengoshi who is part of a legal firm may not
represent the client, even with the client’s consent/ Much like
many of the other legal ethics codes, Japan’s code treats the firm as
an extension of the attorney himself.
In Australia, only the Law Institute of Victoria has issued a
ruling on the matter of lawyer screening. It states that a conflict of
interest may still exist “not withstanding that the firm had ar¬
rangements in place to exclude the person in possession of the
confidential information from having involvement with the file.”
Similarly, the New Zealand Law Society recently issued a new Rule
1.07 stating that a practitioner shall cease to act in the event of a
conflict or likely conflict among clients “even though a notional
barrier known as a ‘Chinese Wall’ may be or may have been
constructed. Such a device does not overcome a conflict situation.”
In several countries, including the United States, a lawyer in a
firm may represent a client who has a conflict of interest with

another lawyer in the firm if there is some sort of “wall” between

the two lawyers.5 This wall entails separate staff and files for the
two attorneys, and requires that the attorneys never speak to one
another. This situation is desirable for firms with many different
offices, perhaps some international, which could easily entirely
separate certain attorneys. This practice is becoming more widely
used despite some opposition. h

Discussion Problems:

6-1: Twenty-three year old Aleksa approaches Lawyer for repre¬

sentation in a divorce action. Aleksa is between employment,
and Lawyer agrees to represent Aleksa for 100 Euro per hour,
one-half of Lawyer’s usual fee. The next day, Lawyer receives
3. Statement from Kazumasa Kuboi, 5. Geoffrey C. Hazard. Jr. & Angelo
Dondi, Legal Ethics. A Comparative Study
President, Japan Federation of Bar As¬
185 (2004).
sociations, Moving Towards a Uniform
Code of Conduct for the Legal Pro¬
fession in Asia (Oct. 8 2001), http:// 6. G.E. Dal Pont, Lawyers’ Profes¬
sional Responsibility in Australia and N ew
www.nichihenren.or.jp/en/activities/state
Zeaijvnd, 177 (1996) (criticizing the prac¬
ments/data/HI_03 l_PS_12thPOLA2.pdf.
tice as the United States’ attempt at
4. Id. justifying conflicts of interest).
Sec. D IMPUTED DISQUALIFICATION 111

a telephone call from Aleksa’s Mother. She tells Lawyer that

Aleksa has told her of their arrangement and that she wants
to pay the balance of Lawyer’s usual fee. She further indi¬
cates that because Aleksa is “foolishly proud,’’ she prefers to
pay this fee without informing Aleksa. How should Lawyer
respond? What alternatives exist?
6-2: Until two years ago, Marko worked seven years as an associ¬
ate and three more after making partner with Perovic and
Jankovic Law Firm. At Perovic and Jankovic, Marko was a
member of a team that represented “Peugeot” company in
various class action defenses to claims brought against the
vehicle manufacturer. Perovic and Jankovic represented
“Peugeot” in matters involving claimed brake system defects,
heater malfunctions, and fuel system defects. Two years
ago, Marko and a colleague left Perovic and Jankovic to form
their own firm. A month ago, Marko was approached by a
prospective client. The client’s child had been killed in a
tragic collision. The client was driving her “Peugeot” minivan
when it was struck from the left rear by a drunk driver. The
latch on the minivan’s rear door had popped open in the
collision and the child was thrown out, suffering fatal injuries.
Marko knows from reading various legal periodicals that a
class action is pending against “Peugeot” based on claimed
defects in the rear door latches. Marko is considering under¬
taking the matter. How should his analysis proceed? How
would you advise him?
6-3: Antic and Peric Law Firm has its main office in Belgrade and
branch offices in five other cities, including Ni. In Ni, Ivan
Jelic does routine corporate work for Foto Toto, a small entity
that owns and operates one-hour photo finishing kiosks in
shopping center parking lots. Foto Toto is a very modest
subsidiary of Laguna., a sprawling corporate entity with hold¬
ings in a wide variety of industries. Ilija Antic of the Belgrade
office is approached by a representative of a major interna¬
tional organization that proposes to make a takeover offer to
Laguna. Antic very much wants to undertake this representa¬
tion. What, if any, options does Antic have that would allow
the representation to go forward?
When a law firm has a lawyer doing a modest amount of work
for a client and that work will create a conflict preventing the
firm from undertaking a substantial amount of work for a
prospective client, the firm may consider ways of making the
current client a former client. Why might the change from
current to former client status make the firm’s argument for
being able to undertake the prospective client’s work stronger?
At least three ways of making the current client a former
client might be considered: complete the work for the current
client and write a letter clearly indicating that the representa-
112 INCOMPATIBLE RELATIONS Ch. 6

tion has ended; “fire” the client (that is, withdraw from the
representation); fire the lawyer who does that client’s work,
allowing the fired lawyer to take the client with him. What are
the implications of each?

Write a two page analysis to your partner addressing the

propriety and wisdom of various courses of action by the firm.

6-4: Muris and Lilja were car-pooling to work one morning when
they were involved in a car accident. Muris was driving. Muris
and Lilja both believe the other driver to be primarily at fault,
but Muris was fumbling with his seat-belt at the time — an
issue that the fact-finder may find relevant, especially in their
comparative negligence state.

Muris and Lilja approach you, seeking joint legal representa¬

tion. Are there any circumstances under which you may repre¬
sent both Muris and Lilja, rather than advising one of them to
seek other counsel?

6-5: Assume that the facts are the same as those given in the
above question. Muris and Lilja seek joint representation for
their suit against the other driver in a car accident. However,
in this case, interviews with the prospective clients and two
different witnesses reveal that Muris had been drinking prior
to the incident and may have been largely at fault for the
collision. After a full consultation, Muris and Lilja still insist
that they wish to be jointly represented and they waive any
possible conflicts. Can you represent them?

6-6: Judge Cejvan recently moved from the bench to private

practice with Ibrahim and Pasic law firm. The firm is ap¬
proached by Galenika company for legal representation.
While still acting as a judge, a motion came before Judge
Cejvan involving the same case against Galenika. The Judge
ruled that Galenika. had not complied with discovery request
deadlines and ordered the company to either turn over the
requested materials or face contempt charges. Is Judge
Cejvan disqualified from this representation?

6-7: Maria approaches Lawyer Javier concerning a possible lawsuit

against a local real estate agency. In fact, the agency is owned
and managed by Javier’s wife, and some of the couple’s
personal funds were invested to start the business. Javier is
confident, however, that he can remain neutral and, after a
complete consultation with Maria, Maria voluntarily agrees to
waive the conflict of interest. Is Javier’s representation of
Maria against the agency a violation of the ethics rules?
6-8: Vincenzo, an attorney in private practice, takes a pro bono
tort case for an indigent client. Because his client is poor,
Vincenzo offers to cover the expenses involved in taking
Sec. D IMPUTED DISQUALIFICATION 113

several depositions, including a very expensive expert-witness

doctor. One of Vincenzo’s friends questions whether Vincenzo
can do this under the rules, but Vincenzo assures his friend
that he had the client sign a waiver of the conflict of interest.
Does Vincenzo’s paying for the depositions violate the ethics
rules? Should it?

6-9: An attorney with the Labor Ministry learns of a case in which

the Circus Workers Union has figured out a loophole to one of

the Department’s regulations. In response to the Union’s

activity, the attorney launches an initiative that results in an
amended regulation preventing further Union activity. Now
that she is in private practice, may the attorney represent the
Union in defending an agency-brought action based on the
regulation?

6-10: As you attempted to cross the street in the safe haven of a

crosswalk one afternoon, a driver ran a stop sign and hit
you. You suffered severe injuries and incur sizable medical
bills. Seeking redress, you go to Lawyer Keti. You give her
all of the basic details about the accident, your insurance
coverage, and your medical history and problems. Keti be¬
lieves you have a claim but regretfully declines to represent
you when she discovers a potential conflict of interest. If you
discover that Keti later agreed to represent the driver in the
accident, is Keti subject to discipline?

6-11: You have a casual attorney friend named Lasha You like
Lasha, but recently you have learned of some disturbing
activity in which Lasha was involved. You know that law¬
yers are prohibited from drafting instruments in which they
are personal beneficiaries. However, you have discovered
that Lasha recently drafted his aunt’s will in which he is
named as one of the beneficiaries. Do you have a duty to
report Lasha?

6-12: Family law in your jurisdiction allows uncontested divorce

parties to “share” the same attorney when it is reasonable
to do so. Attorney Milena has in the course of her divorce
practice represented several such couples, acting as a suc¬
cessful intermediary. Today, Nikola and Alisa enter her
office, and they seem perfect for the same situation. They
have no children, no hard feelings, and have already divided
the assets. In light of their situation, Milena has them sign a
contract for services without any further discussion. They
begin to discuss the specific details of the divorce. Has
Milena violated any rules?
 Chapter 7

REPRESENTING
ORGANIZATIONS

Although an organizational client is an entity distinct from its

officers, employees or other constituents or agents,1 it can only act
and speak through them. Analysis of a lawyer’s duties and rights
when representing an organizational client, including those of
confidentiality and privilege, depends on defining who speaks, lis¬
tens, and acts for the client in various circumstances. Can an
organization have attorney-client communications with its own
employees, that is, its in-house counsel? Can disclosure of confiden¬
tial client information that exposes wrongdoing on behalf of the
organization ever be loyal to the best interests of the organization?
Different concepts of a lawyer’s proper role and relationship with a
client may lead to different answers to these and other questions
regarding a lawyer’s professional responsibilities to an organiza¬
tional client. Because corporations and other business organizations
increasingly operate across national boundaries, lawyers who repre¬
sent these organizational clients increasingly encounter circum¬
stances in which the laws and rules of the multiple jurisdictions in
which they operate on behalf of their clients conflict. This chapter
explores some of those circumstances.

A. ATTORNEY-CLIENT PRIVILEGE
1. In-House Counsel

In the United States, courts have extended the attorney-client

privilege to communications with in-house counsel as well as out¬
side counsel, as long as the in-house lawyer is providing legal advice

1. See Model Rule 1.13(a) (“A lawyer through its duly authorized constitu-
employed or retained by an organization ents.”).
represents the organization acting

114
Sec. A ATTORNEY-CLIENT PRIVILEGE 115

or services rather than functioning in a non-legal, business capaci¬

ty." Similarly in the United Kingdom, the privilege is recognized for
communications with in-house lawyers who are sufficiently inde¬
pendent, as demonstrated by their admission as a barrister or
solicitor and their holding a current practicing certificate. ’
However, most civil law jurisdictions, in which in-house coun¬
sel are governed by different professional codes and standards than
outside counsel, have traditionally not recognized an evidentiary
privilege for communications with in-house counsel due to their
lack of “independence.” While some civil law countries have recent¬
ly reformed their laws in this regard, many still do not provide
protection for communications with in-house counsel.1
In upholding claims of attorney-client privilege for attorney
communications with a corporate client in its landmark decision in
AM & S Europe Ltd .f the European Court of Justice carefully
limited its holding to client communications with “an independent
lawyer, that is to say one who is not bound to his client by a
relationship of employment.”'’ That holding is currently under
reconsideration, however, in the case of Akzo Nobel Chemicals Ltd.
and Akcros Chemicals Ltd. v. Commission of the European Commu¬
nities.1
The privilege issue in Akzo Nobel resulted from a dawn raid on
the company’s England offices. The documents seized included
communications between company executives and in-house counsel
in the Netherlands. When the Commission refused to recognize the
privilege for these documents, Akzo Nobel applied to the European
Union Court of First Instance for preliminary relief. Though find¬
ing that the communications were not covered by the privilege
doctrine enunciated in AM & S, the court recognized the trend

2. See, e.g., Upjohn Co. v. United domestic law, seven of the fifteen mem¬
States, 449 U.S. 383 (1981); United ber states of the European Union do not
States v. Rowe, 96 F.3d 1294 (9th Cir. recognize the privilege for communica¬
1996). tions between in-house counsel and a
corporate client. Those states are: Aus¬
3. See New Victoria Hospital v.
tria, Belgium, France, Italy, Luxem¬
Ryan, [1993] I.C.R. 201, 203 (EAT) bourg, The Netherlands, and Sweden.
(“[I]n our opinion the [attorney-client] The existence or precise scope of the
privilege should be strictly confined to
privilege is uncertain in five other mem¬
legal advisers such as solicitors and ber states: Denmark, Finland, Germany,
counsel, who are professionally qualified,
who are members of professional bodies, Spain, and Switzerland.”).
5. AM & S Europe Ltd. v. Commis¬
who are subject to the rules and eti¬ sion, Case 155/79 [1982] E.C.R. 1575,
quette of their professions, and who owe [19821 2 C.M.L.R. 264; see discussion
a duty to the court.”). and excerpt of opinion in Chapter 5,
4. Mary C. Daly, The Cultural, Ethi¬ “Confidentiality”, part B.
cal, and Legal Challenges in Lawyering 6. Id. at H 27.
for a Global Organization: The Role of 7. Akzo Nobel Chemicals Ltd. u.
the General Counsel, 46 Emory L.J. Commission, Case T-125/03 [2003]
1057, 1103-04 (1997) (“As a matter of E.C.R. 11-4771.
116 REPRESENTING ORGANIZATIONS Ch. 7

among member states towards extending the privilege to communi¬

cations with in-house counsel and ordered the documents sealed
pending consideration of the merits.

AKZO NOBEL CHEMICALS LTD. v. COMMISSION

OF THE EUROPEAN COMMUNITIES
Case T-125/03 [2003] E.C.R. 11-4771.

THE PRESIDENT OF THE COURT OF FIRST INSTANCE OF

THE EUROPEAN COMMUNITIES

Registrar: J. Plingers, Administrator, makes the following

Order

1. On 10 February 2003, the Commission adopted a decision

under Article 14(3) of Council Regulation No 17 of 6 February
1962, First Regulation implementing Articles [81] and [82] of the
Treaty (OJ, English Special Edition 1959-1962, p. 87) (the decision
of 10 February 2003), amending the decision of 30 January2003
whereby the Commission ordered, among other undertakings, Akzo
Nobel Chemicals Ltd and Akcros Chemicals Ltd (the applicants)
and their respective subsidiaries to submit to an investigation
aimed at seeking evidence of possible anti-competitive practices (the
decision of 30 January 2003).
2. On 12 and 13 February 2003, Commission officials accompanied
by representatives of the Office of Fair Trading carried out an
investigation on the basis of those decisions at the applicants’
premises in Eccles, Manchester (United Kingdom). During the
investigation, the Commission officials made copies of a large
number of documents.

3. In the course of the investigation, the applicants’ representa¬

tives informed the Commission officials that certain documents in a
particular file might be covered by the legal professional privilege
that protects communications with lawyers and that the Commis¬
sion could not therefore have access to them .

80. As regards, last, the Set B e-mails, the applicants maintain

that they constitute written communications between the General
Manager of Akcros Chemicals and a member of Akzo Nobel’s Legal
Department. The latter person is a member of the Netherlands Bar,
subject to professional obligations as regards independence and
respect for the rules of the Bar comparable to those of an external
lawyer. Those rules prevail over his duty of loyalty towards his
employer. In that regard, the applicants are agreed that the Com¬
munity case-law does not at present recognise that the work of in-
house lawyers is protected by professional privilege; none the less,
they maintain, essentially, that numerous changes in the profes-
Sec. A ATTORNEY-CLIENT PRIVILEGE 117

sional rules of the Member States have occurred since the judgment
in AM & S v Commission, cited at paragraph 66 above, tending, in
particular, to extend the cover of professional privilege to the
activities of certain in-house lawyers. The applicants also rely, by
analogy, on the judgment in Case T-92/98 Interporc v Commission
[1999) ECR 11-3521, paragraph 41, where the Court of First In¬
stance considered that correspondence between the Commission’s
Legal Service and its various Directorates-General could not be
disclosed. Furthermore, the limitation of professional privilege to
written communications with outside counsel constitutes a breach
of the principle of non-discrimination and, against the background
of the modernisation of competition law, adversely affects an under¬
taking’s assessment of the compliance of its activities with competi¬
tion law. Last, the communications in question were between two
persons in the United Kingdom and the Netherlands respectively,
i.e. in two States which recognise that written communications
from in-house lawyers are protected by professional privilege when
the lawyers belong to a Bar. . . .

117. It is necessary to examine, last, the two Set B e-mails

between the General Manager of Akcros Chemicals and the Akzo
Nobel’s competition law coordinator.
118. In that regard, it should be pointed out that, in application of
the principles laid down in AM & S v Commission, cited at
paragraph 66 above, the protection afforded by Community law,
especially in the context of Regulation No 17, to written communi¬
cations between lawyer and client applies only in so far as those
lawyers are independent, i.e. not bound to the client by a relation¬
ship of employment (AM & S v Commission, cited at paragraph 66
above, paragraph 21).
119. In the present case, it is common ground that the e-mails in
question were exchanged between the General Manager of Akcros
Chemicals and a lawyer employed on a permanent basis by Aikzo
Nobel. Following AM & S v Commission, cited at paragraph 66
above, those communications are therefore not in principle covered
by professional privilege.
120. None the less, the President considers that the arguments
put forward by the applicants and the interveners raise a question
of principle which merits very special attention and which cannot
be resolved in the present interim proceedings.
121. On the one hand, as the Commission emphasises, the Mem¬
ber States do not unanimously recognise the principle that written
communications with in-house lawyers must be covered by profes¬
sional privilege. Furthermore, as the Commission also points out, it
is necessary to ensure that an extension of professional privilege
cannot facilitate abuses which would enable evidence of an infringe-
 REPRESENTING ORGANIZATIONS Ch. 7

ment of the Treaty competition rules to be concealed and thus

prevent the Commission from carrying out its task of ensuring
compliance with those rules.

122. On the other hand, however, the solution in AM & S v

Commission, cited at paragraph 66 above, is based, inter alia, on an
interpretation of the principles common to the Member States
dating from 1982. It is therefore necessary to determine whether, in
the present case, the applicants and the interveners have adduced
serious evidence of such a kind as to demonstrate that, taking into
account developments in Community law and in the legal orders of
the Member States since the judgment in AM & S v Commission,
cited at paragraph 66 above, it cannot be precluded that the
protection of professional privilege should now also extend to writ¬
ten communications with a lawyer employed by an undertaking on
a permanent basis.

123. The President considers that arguments to that effect have

been submitted in the present case and that they are not wholly
unfounded.

124. First, the applicants, the Algemene Raad van de Nederlandse

Orde van Advocaten and ECLA have adduced evidence which
indicates that, since 1982, a number of Member States have
adopted rules designed to protect written communications with a
lawyer employed by an undertaking on a permanent basis, provided
that he is subject to certain rules of professional conduct. That
appears to be the position, in particular, in Belgium and the
Netherlands. At the hearing, ECLA further stated that in most
Member States written communications with in-house lawyers sub¬
ject to particular rules of professional conduct were protected by
professional privilege. The Commission, on the other hand, con¬
tended in its observations that it was only in a minority of Member
States that communications with in-house lawyers were covered by
professional privilege.
125. Without its being possible at this stage to ascertain and to
embark upon a thorough and detailed analysis of the evidence
adduced by the applicants and the interveners, that evidence none
the less appears prima facie to be capable of showing that the role
assigned to independent lawyers of collaborating in the administra¬
tion of justice by the courts, which proved decisive for the recogni¬
tion of the protection of written communications to which they are
parties (AM & S v Commission, cited at paragraph 66 above,
paragraph 24), is now capable of being shared, to a certain degree,
by certain categories of lawyers employed within undertakings on a
permanent basis where they are subject to strict rules of profession¬
al conduct.
Sec. A ATTORNEY-CLIENT PRIVILEGE 119

126. The evidence therefore tends to show that increasingly in the

legal orders of the Member States and possibly, as a consequence,
in the Community legal order, there is no presumption that the link
of employment between a lawyer and an undertaking will always,
and as a matter of principle, affect the independence necessary for
the effective exercise of the role of collaborating in the administra¬
tion of justice by the courts if, in addition, the lawyer is bound by
strict rules of professional conduct, which where necessary require
that he observe the particular duties commensurate with his status.

127. It must therefore be held that the applicants and the inter¬
veners have presented arguments which are not wholly unfounded
and which are apt to justify raising again the complex question of
the circumstances in which written communications with a lawyer
employed by an undertaking on a permanent basis may possibly be
protected by professional privilege, provided that the lawyer is
subject to rules of professional conduct equivalent to those imposed
on an independent lawyer. In the present case, the applicants
maintained at the hearing, without being clearly contradicted on
that point by the Commission, that the lawyer whom they employed
on a permanent basis was in fact bound by professional rules
equivalent to those governing independent lawyers of the Nether¬
lands Bar.

128. Nor does that question of principle appear prima facie to

have to be rejected at this stage as a result of the Commission’s
argument that recognition of professional privilege for written
communications with lawyers employed on a permanent basis
would give rise to different regimes within the European Union,
depending on whether or not in-house lawyers are authorised by
the Member States to be members of a Bar.

129. This complex question must be examined thoroughly, in

particular as regards, first, the precise scope of the right which
would then be recognised, second, the Community rules and nation¬
al rules applicable to the professions of lawyer and in-house lawyer
and, third, the legal and practical alternatives available to compa¬
nies established in Member States which do not allow in-house
lawyers to be members of a Bar.

130. It must therefore be concluded that, in the present case, the

applicants have, by their second plea, raised a delicate question of
principle, which requires a complex legal assessment and must be
reserved for the Court when it adjudicates on the main application.
% sfe sfc * * * *

A little less than a year later, however, this decision was

reversed by the European Court of Justice, which held that the
120 REPRESENTING ORGANIZATIONS Ch. 7

standard for preliminary relief had not been met.s The Court noted
that the Commission had already made an initial review of the
documents. It reasoned that the harm which might possibly result
from a more detailed reading of those documents was not sufficient
to establish “urgency” or the existence of serious and irreparable
harm since, if its actions were ultimately found unlawful, the
Commission would be required to remove the documents from its
files and would be unable to use them as evidence.9

2. The Scope of the Privilege

The leading federal case in the United States regarding the
scope of the organizational attorney-client privilege is Upjohn Co. v.
United States,1" decided by the Supreme Court in 1981. Upjohn
rejected the “control group” test, which protected only communica¬
tions with senior management, in favor of a subject matter test:
matters within the scope of an employee’s duties for the purpose of
facilitating the giving of legal advice to a corporation are privileged.
As a matter of federal common law, the Court held that communi¬
cations by counsel with even low and mid-level employees for the
purpose of gathering information necessary to defend against po¬
tential litigation were protected by the privilege. Because Upjohn
construed the privilege only as a matter of federal common law,
however, states within the United States remain free to define the
scope of the organizational client privilege differently, and not all
have chosen to follow Upjohn.
In the Azko Nobel case, in addition to considering whether the
privilege should apply to communications with in-house counsel,
the European Union Court of the First Instance considered wheth¬
er a memoranda prepared by a company officer based on internal
discussions with other employees, purportedly for the purpose of
obtaining legal advice from outside counsel, was covered by the
privilege. As in the case of the communications with in-house
counsel, the court found that the claim of privilege regarding these
documents raised a serious issue, and it ordered the documents
sealed until that issue had been resolved.

Further Excerpt from

AKZO NOBEL CHEMICALS LTD. v. COMMISSION

OF THE EUROPEAN COMMUNITIES
Case T-125/03 [2003] E.C.R. 11-4771.
* Jjc * * * * *

6. The first of these documents is a two-page typewritten memo¬

randum dated 16 February 2000 from the General Manager of
8. See Commission v. Akzo Nobel 9. Id. at 1111 45-52.
Chemicals Ltd., Case-7/04 [2004] E.C.R. 10. 449 U.S. 383 (1981).
1-8739.
Sec. A ATTORNEY-CLIENT PRIVILEGE 121

Akcros Chemicals to one of his superiors. According to the appli¬

cants, this memorandum contains information gathered by the
General Manager of Akcros Chemicals in the course of internal
discussions with other employees. They state that the information
was gathered for the purpose of obtaining outside legal advice in
connection with the competition law compliance programme al¬
ready put in place by Akzo Nobel.

7. The second of these documents is a second copy of the two-page

memorandum described in the preceding paragraph, which also
contains handwritten notes referring to contacts with one of the
lawyers representing the applicants and mentioning him by
name. . . .

97. In the present case, the applicants do not claim that the Set A
documents constitute in themselves a communication with an out¬
side lawyer or a document reporting the text or the content of such
a communication. They maintain, on the contrary, that both docu¬
ments are memoranda drafted for the purpose of a telephone
conversation with a lawyer.

98. The President considers that the applicants’ plea raises very
important and complex questions concerning the possible need to
extend, to a certain degree, the scope of professional privilege as
currently delimited by the case-law.
99. It should be observed, first of all, that according to settled
case-law, in all proceedings in which sanctions, especially fines or
periodic penalty payments, may be imposed, observance of the
rights of the defence is a fundamental principle of Community law,
which must be complied with even if the proceedings in question
are administrative proceedings [citations omitted].

100. Second, the protection of the confidentiality of written com¬

munications between lawyer and client is an essential corollary to
the full exercise of the rights of the defence, the protection of which
Regulation No 17 itself, in particular in the 11th recital in its
preamble and in the provisions contained in Article 19, takes care
to ensure (AM & S v Commission, cited at paragraph 66 above,
paragraph 23).

101. Third, professional privilege is intimately linked to the con¬

ception of the lawyer’s role as collaborating in the administration of
justice by the courts and as being required to provide, in full
independence, and in the overriding interests of that cause, such
legal assistance as the client needs (AM & S v. Commission, cited at
paragraph 66 above, paragraph 24).
122 REPRESENTING ORGANIZATIONS Ch. 7

102. In order that a lawyer may effectively and usefully exercise

his role of collaborating in the administration of justice by the
courts with a view to the full exercise of the rights of the defence, it
may prove necessary, in certain circumstances, for the client to
prepare working or summary documents, notably for the purpose of
gathering the information which the lawyer may find useful, or
indeed indispensable, in understanding the context, the nature and
the scope of the facts in respect of which his assistance is sought.
Furthermore, the preparation of such documents may prove partic¬
ularly necessary in matters involving considerable and complex
information, which is the case, in particular, of proceedings initi¬
ated with a view to imposing sanctions for infringements of Articles
81 EC and 82 EC.

103. In that context, although Regulation No 17 has given the

Commission wide powers of investigation and placed undertakings
under an obligation to cooperate in the measures of investigation, it
is settled case-law that it is none the less necessary to prevent the
rights of the defence from being irremediably impaired during
preliminary inquiry proceedings including, in particular, investiga¬
tions which may be decisive in providing evidence of the unlawful
nature of conduct engaged in by undertakings for which they may
be liable (Joined Cases 46/87 and 227/88 Hoechst v. Commission
[1989] ECR 2859, paragraph 15, and Case 374/87 Orkem v. Com¬
mission [1989] ECR 3283, paragraph 33).
104. If, in the context of investigations ordered under Article
14(3) of Regulation No 17, the Commission were able to copy
working or summary documents prepared by an undertaking solely
for the purpose of the exercise of the rights of defence by its lawyer,
the consequence might prima facie be an irremediable impairment
of the rights of defence of that undertaking, since the Commission
would have evidence of such a kind as to provide it with immediate
information on the defence options available to the undertaking.
There is reason to conclude, therefore, that such documents are
capable of being covered by professional privilege.
105. It is therefore necessary to determine whether, in the present
case, the Set A documents may belong to such a category.
106. The applicants claim that the Set A typewritten memoranda
were drafted in the context of a competition law compliance pro¬
gramme set up by outside lawyers. More specifically, the Set A
memoranda were drawn up by the General Manager of Akcros
Chemicals on the basis of discussions with lower-level employees,
initially communicated to his superior and then, Finally, discussed
with the applicants’ external counsel.
107. The President considers at this stage that, as the Commis¬
sion has stated, the mere existence of a competition law compliance
 123
Sec. A ATTORNEY-CLIENT PRIVILEGE

programme set up by outside lawyers is not prima facie sufficient to

establish that a document prepared in the context of such a
programme is covered by professional privilege. Owing to their
extent, those programmes include tasks which frequently extend
far beyond the exercise of the rights of the defence.

108. Having made that clear, the President none the less consid¬
ers that, in the present case, it cannot be precluded prima facie
that, because of other factors, the Set A typewritten memoranda
were in fact drafted for the sole purpose of obtaining legal advice
from the applicants’ lawyer in the context of the exercise of the
rights of the defence.
109. First, after examining the Set A memoranda, the President
found that, in the light of their content, virtually the sole purpose
of those documents was prima facie to compile information of the
kind which would be communicated to a lawyer for the purpose of
obtaining his assistance on questions involving the possible applica¬
tion of Articles 81 EC and 82 EC ....

110. Second, the applicants produced before the President the

minute of a telephone conversation drafted by one of the applicants’
lawyers on the day on which the conversation took place. As this
minute might itself be protected by professional privilege, it could
not be communicated to the Commission. It gives the impression,
however, that certain points discussed did in fact relate prima facie
to information contained in the Set A documents.

111. Third, one of the two copies of the Set A memorandum bears
handwritten notes mentioning the name of the applicants’ counsel
and tends to indicate that a telephone conversation did indeed take
place with him on the actual day on which he drafted the minute of
his telephone conversation referred to in the preceding paragraph.
112. Consequently, in the circumstances of the present case, the
President considers that this evidence tends to confirm the possibil¬
ity that the Set A memoranda were drafted for the sole purpose of
obtaining the assistance of a lawyer.
113. As regards, last, the condition relating to the exercise of the
rights of the defence, it is apparent upon examining the Set A
documents that they relate to facts which are prima facie capable of
justifying consultation of a lawyer and of being connected either
with the investigation currently being carried out by the Commis¬
sion or with other investigations which the applicants were reason¬
ably able to fear or anticipate and in view whereof they intended to
draw up a strategy and prepare in advance, if necessary, the
exercise of their rights of defence. Prima facie, however, it remains
necessary, for the purpose of examining the present plea, to deter¬
mine the precise conditions in which such documents may, particu-
124 REPRESENTING ORGANIZATIONS Ch. 7

larly from a temporal and material viewpoint, constitute a means of

exercising the rights of the defence.
114. It follows from the foregoing, therefore, that, in so far as it
concerns the Set A documents, the applicants’ second plea raises
numerous delicate questions of principle requiring a detailed exami¬
nation in the main proceedings and that it does not therefore
appear, at this stage, to be manifestly unfounded.
jH * * * if:

3. Transnational Attorney-Client Privilege Issue

What if the attorney-client privilege is asserted with regard to

testimony or documents that would not be privileged in the country
of their origin? How should a U.S. court resolve those claims of
privilege? What if the person providing advice is not a member of
the bar of her country but performs functions similar to functions
performed by lawyers in the United States? In Renfield Corp. u. E.
Remy Martin & Co., S.A.,1- a U.S. federal district court considered
claims of privilege for corporate documents reflecting communica¬
tions with French in-house counsel that would not be privileged
under French law.

RENFIELD CORP. v. E. REMY MARTIN & CO., S.A.

98 F.R.D. 442 (D.Del.1982).

MEMORANDUM OPINION

Stapleton, District Judge:

This is an antitrust action brought by plaintiffs Renfield Corpora¬

tion and Renfield Importers (“Renfield”) against E. Remy Martin &
Co., S.A. (“Remy S.A.”), Remy Martin Amerique, Inc. (“Remy
Amerique”), and other defendants. Renfield has moved under Fed.
R.Civ.P. 37(a)(2) for an order compelling production of certain
documents withheld by the Remy defendants on the ground of
attorney-client privilege ....

I. AVAILABILITY OF THE ATTORNEY-CLIENT PRIVILEGE.

The communications at issue are documents that reflect communi¬

cations between officials of both Remy defendants and employees of

Remy S.A. identified as its French “in-house counsel.” Renfield

challenges Remy’s assertion of the attorney-client privilege on the
basis that the privilege does not apply to communications with
French “in-house counsel.” I shall consider separately the docu-
12. 98 F.R.D. 442 (D. Del. 1982).
 125
Sec. A ATTORNEY-CLIENT PRIVILEGE

ments located in the offices of Remy S.A. in France and those

located in the New York offices of Remy Amerique.
A. DOCUMENTS LOCATED IN THE OFFICES OF REMY S.A.
IN FRANCE.

The parties are not in disagreement that the Hague Evidence

Convention governs discovery of any of the documents located in
France; they are in disagreement, however, as to the meaning of
the relevant provisions of that convention.

Two provisions are pertinent. Article 21(e) provides that: A person

requested to give evidence may invoke the privileges and duties to
refuse to give the evidence contained in Article 11.

Article 11, in turn, provides that: [“IThe person concerned may

refuse to give evidence insofar as he has a privilege or duty to
refuse to give the evidence — (a) under the law of the State of
execution; or (b) under the law of the State of origin . . . . ”
Defendants read these provisions to assure that a witness will have
the benefit not only of privileges recognized by the forum State, but
also privileges recognized by the State where the letters are execut¬

ed.'
Renfield reads them to permit a witness to assert only a privilege of
the State of origin or State of execution which is otherwise applica¬
ble under conflict of laws principles. While there is room for

argument, I find Renfield’s reading of the language employed less

plausible than that of defendants’. Moreover, I believe defendant’s
interpretation is more compatible with the limited “legislative
history” of the Convention currently available to me. Both the
United States and France in their answers to Question 10 of the

“Questionnaire on the Taking of Evidence Abroad” ’’ made in prepa¬

ration for the Hague Convention evinced their intent that the
treaty be a privilege creating, rather than privilege limiting, law.1
Thus, I conclude that if a privilege is recognized by either French
or United States law, the defendants may invoke it.

2. Article 11 goes on to indicate that State? d) only those decreed by both

a signatory of the Convention may elect legislations cumulatively?
to afford the witness the benefit of the
privileges of other jurisdictions, such as
the privilege recognized by the witness’s
ef li to ap by of wi th a or

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her
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What privileges are available to wit¬

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decreed either by the law of the request¬

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126 REPRESENTING ORGANIZATIONS Ch. 7

For the purpose of this motion, I assume that French law would not
grant a privilege to refuse to disclose these documents. Therefore, I
must consider whether United States law provides such a privilege.
I conclude that it does. Preliminarily, it is clear that the communi¬
cations were intended and reasonably expected to be confidential:1
Thus, the only issue of any substance is whether the privilege is
available where the attorney is a French “in-house counsel.” Plain¬
tiffs have urged that because French “in-house counsel” are not
members of a bar, the privilege is unavailable. In order to decide
this, it is necessary to have some understanding of the structure of
the French legal profession.
The organization of the French legal profession is unlike that in the
United States. In France, there are several categories within the
practicing legal profession and each category performs a different
function that, in the United States, would all be performed by an
American lawyer (Affid. of Cournot 5, Appendix D to p.b.). For
example, the “avocat” provides legal advice to clients and appears
in court but may not be employed by any person or organization.
The “conseil juridique” is allowed to provide legal advice but may
not appear in court and may only be employed by, or associated
with, other “conseils juridiques.” (Cournot 6, 7; Affid. of Goldman
35, 39, Appendix E to d.b.). Thus, an individual who is employed by

a corporation is not permitted by law to be on the list of “avocats”

or “conseils juridiques.” Nevertheless, these individuals are not
prohibited from giving legal advice.

Because there is no clear French equivalent to the American “bar,”

in this context membership in a “bar” cannot be the relevant
criterion for whether the attorney-client privilege is available. Rath¬
er, the requirement is a functional one of whether the individual is
competent to render legal advice and is permitted by law to do so.
French “in-house counsel” certainly meet this test; like their
American counterparts, they have legal training and are employed
to give legal advice to corporate officials on matters of legal signifi¬
cance to the corporation.'1
5. The communicators did not expect privilege law of the jurisdiction whose
the recipients to share the information laws would be applicable under such
other than perhaps with outside counsel. conflicts rules.
Renfield erroneously equates the issue
6. In a related argument, Renfield
of whether the communications were
asserts that, as a matter of law, the
reasonably expected to be confidential communications cannot be treated as
with the issue of whether they are pro¬
tected by an attorney-client privilege un¬ ones seeking legal advice where the law¬
der the law which would be applicable yers are French and, therefore, pre¬
under conventional conflict of law prin¬ sumptively unqualified to render advice
on United States law. I disagree. While
ciples. To equate those issues in this
the fact that a lawyer is not a member of
context would be to defeat what I be¬
the bar of a United States jurisdiction
lieve to be the intent of the Hague Evi¬
dence Convention — that a witness shall may be relevant in determining whether
not be limited to the attorney-client a communication is for the purpose of
 127
Sec. A ATTORNEY-CLIENT PRIVILEGE

B. DOCUMENTS IN THE NEW YORK OFFICE OF REMY AME-

RIQUE.
The Hague Evidence Convention is not applicable to documents
located in the United States. Therefore, I must apply choice-of-law
principles to determine whether United States or French privilege
law applies.

There is no dispute that the choice-of-law standard is that the

applicable law is that of the state with the most significant relation¬
ship with the communications. Restatement (Second) of Conflict of
Laws § 139(1) (1971). In this case, the United States has the most
significant relationship with the communications. The officials lo¬
cated in the New York office of Remy Amerique are the ones who
have sought the legal advice and the United States has the same
interest in protecting the freedom of these individuals to obtain
legal advice as it does for any other American residents. For the
same reasons stated above in connection with the Remy S.A.
documents, the United States privilege law does recognize the
Remy Amerique communications as privileged. It follows, therefore,
that the attorney-client privilege is also appropriately applied to
communications of Remy Amerique officials with French “in-house
counsel.”

In Honeywell, Inc. u. Minolta Camera Co., Ltd.,11 another

federal district court considered the assertion of the attorney-client
privilege regarding the testimony of a Japanese corporate employee
who was not a member of the bar of Japan. The magistrate in the
case had found the employee was the functional equivalent of an
attorney and upheld the privilege under the rationale of Renfield
Corp. v. E. Remy Martin & Co., S.A." When the magistrate’s ruling
was appealed to the district court, the court rejected the reasoning
of Renfield Corp. and rejected the claim of privilege.

HONEYWELL, INC. v. MINOLTA CAMERA CO., LTD.

1990 WL 66182 (D.N.J.).

Honeywell’s appeal concerns on-going depositions which are being

conducted in Japan. During the taking of the deposition of Kessoku,
he was directed not to answer certain questions pursuant to the
attorney-client privilege and the work product doctrine. It is undis¬
puted that Kessoku is not admitted to the bar of Japan or any other

securing legal advice, it is not necessari- 14. 98 F.R.D. 442 (D. Del. 1982).
ly determinative of that issue.
13. 1990 WL 66182 (D.N.J. 1990).
128 REPRESENTING ORGANIZATIONS Ch. 7

country and is not a registered patent agent of Japan or any other

country.

Honeywell moved by telephone application from Japan for an order

compelling Kessoku to answer the line of questioning and to compel
Minolta to produce certain documents requested in connection with
the questioning of Kessoku. After the telephone conference, the
Magistrate permitted the filing of additional and supplemental
briefs. The Magistrate’s Order of August 22, 1989 denied the
application of Honeywell on the ground that Kessoku was the
‘‘functional equivalent” of an attorney under the rationale of
Renfield Corp. v. E. Remy Martin & Co., S.A., 98 F.R.D. 442
(D. Del. 1982), and was entitled to assert the attorney-client privilege
and work product doctrine. Honeywell appealed that decision to
this Court ....

.... The Renfield court expanded the attorney-client privilege to

encompass employees of a french corporation who acted in the
capacity of “in-house” counsel, although the employees were not
members of the organized french bar. The court discussed only the
factual circumstances of the case before it and cited no authority
for this expansion of the privilege. The specific holding of Renfield
has not been adopted by the Third Circuit, nor has the functional
equivalence rationale been applied as a general proposition.

Minolta cites Vernitron Medical Products, Inc. v. Baxter Laborato¬

ries, Inc., et al., 186 U.S.P.Q. 324 (D.N.J.1975), for the proposition
that a functional equivalence test, similar to the one employed by
the court in Renfield, has been applied in this district. Vernitron
Medical Products was an earlier case which dealt with the applica¬
tion of the attorney-client privilege to communications between a
client and a patent agent registered to practice in front of the U.S.
Patent Office. In the area of patent law, registered patent agents
have been made a specific exception to the general rule that an
attorney must be involved for the assertion of an attorney-client
privilege. See e.g. Sperry v. State of Florida, 373 U.S. 379, 83 S.Ct.
1322 (1963). There is no indication that this specialized exception
was intended to be applied in a general fashion.
The Third Circuit was guided by the requirements of United States
v. United Shoe Machinery Corp., 89 F.Supp. 357, 358-59 (D.Mass.
1950)1 in its application of the attorney-client privilege in In Re

1. The “oft-quoted” passage of that is acting as a lawyer; (3) the communica¬

case provides that: The privilege applies tion relates to a fact of which the attor¬
only if (1) the asserted holder of the ney was informed (a) by his client (b)
privilege is or sought to become a client; without the presence of strangers (c) for
(2) the person to whom the communica¬ the purpose of securing primarily either
tion was made (a) is a member of the (i) an opinion on law or (ii) legal services
bar of a court, or his subordinate and (b) or (iii) assistance in some legal proceed¬
in connection with this communication ing, and not (d) for the purpose of com-
 129
Sec. A ATTORNEY-CLIENT PRIVILEGE

Grand Jury Investigations, 599 F.2d 1224, 1233 (3d Cir.1979). This
Court has failed to find any case which indicates that the Third
Circuit has since altered its approach to the application of the
attorney-client privilege. Therefore, the Court finds that the Magis¬
trate’s application of the rationale of Renfleld was contrary to the
law of this Circuit and must be reversed.

Next, the Court must examine whether the Magistrate’s factual

determination that Kessoku was the functional equivalent of an
attorney was clearly erroneous. The Court has thoroughly reviewed
all of the submissions of the parties, including the affidavits sub¬
mitted which attest to Kessoku’s duties, background and training,
the voluminous affidavits submitted which explain Japanese law on
the subject, and the factual circumstances of the Renfleld decision.
The Court notes that Kessoku has never been licensed to practice
law in any country and has never been registered as a patent agent
in Japan or in the United States. Kessoku has a Bachelor’s of
Science degree and, over the years, has attended various seminars,
lectures and classes concerning legal and patent issues. The Court
finds this is insufficient factual support for the finding that Kesso¬
ku is a de facto attorney. On the entire evidence, the Court “is left
with the definite and firm conviction that a mistake has been

committed.” Therefore, the Court finds that the Magistrate’s deter¬

mination as to Kessoku status as a de facto attorney for the
purposes of the applying the attorney-client privilege and the work
product doctrine is clearly erroneous and must be reversed.2

Discussion Questions:

7-1: Should communications with in-house counsel be protected by

the attorney-client privilege? Should the privilege be recog¬
nized in all cases or should recognition depend on the circum¬
stances of each case?

7-2: If recognition of the privilege for communications with in-

house counsel should depend on the circumstances of each

mitting a crime or tort; and (4) the terest of Japan is implicated in this ac¬
privilege has been (a) claimed and (b) tion where depositions have been con¬
not waived by the client. Id. ducted in Japan merely as a courtesy to
2. In their exhibits and at oral argu¬ Minolta. Also, the Court notes that the
ment, Minolta raised the issue that this affidavits of the parties explaining Japa¬
Court, under the principles of comity, nese law on the subject of privileges
ought to apply Japanese law to provide conflict with each other and do not pro¬
Kessoku with a privilege which would vide a proper basis from which this
prevent the discovery at issue. This Court could determine any applicable
Court has considered Minolta’s argu¬ law.
ments, as well as the exhibits of the
parties, and finds that no sovereign in¬
130 _ REPRESENTING ORGANIZATIONS _ Ch. 7

case, what criteria should determine the applicability of the

privilege? The district court in the Renfield Corp. case said
that “the requirement is a functional one of whether the
individual is competent to render legal advice and is permit¬
ted by law to do so.” Should this requirement be sufficient?
In countries where lay persons without legal training are
allowed to give legal advice would this expand the privilege to
communications for the purpose of legal advice with anyone
who has some basis for giving such advice?

7-3: European countries that have failed to recognize the privilege

for in-house counsel have emphasized in-house counsel’s lack
of “independence.” Should this be a crucial factor in deter¬
mining whether the privilege applies? If so, how independent
of company management are in-house counsel in a typical
U.S. corporation?

7-4: The district court in the Honeywell case rejects the functional
equivalence test and applies established criteria for assertion
of the privilege, including that “the person to whom the
communication was made ... is a member of the bar of a
court, or his subordinate and ... in connection with this
communication is acting as a lawyer.” Do these criteria al¬
ways make sense when applied to persons giving legal advice
in a foreign country?

7-5: Does some version of the “functional equivalence” test make

sense? Why or why not?

7-6: Though the court in Renfield Corp. specifically rejects the

holding in Honeywell , can the two decisions be reconciled?
Are they factually distinguishable in a significant way?

7-7: What values or interests are served by a narrow interpreta¬

tion of the attorney-client privilege when applied transnation-
ally? By a broad interpretation?

B. CORPORATE WHISTLE-BLOWING
In the United States, it is a foundational principle that a

lawyer who represents a corporation or other organization repre¬

sents the organizational entity, not its officers or directors or other
constituents.1’ When a lawyer for an organization discovers that an
officer or employee or another agent of the organization is involved
in wrongdoing that could be imputed to the organization, and thus
create substantial injury to the organization, the lawyer has a duty
of loyalty to the entity client to act in the best interest of the
organization.16 That duty will generally require the lawyer to
15. Model Rule 1.13(b). 16. Model Rule 1.13(b).
Sec. B CORPORATE WHISTLE-BLOWING 131

“climb the corporate ladder” to seek appropriate corrective action. ‘‘

If climbing the corporate ladder is unavailing, recent amendments
to the ABA Model Rules of Professional Conduct give a lawyer
discretion to reveal confidential client information outside of the
organization to the extent the lawyer reasonably believes doing so
is necessary to prevent substantial injury to the organization.1*
Such disclosure is considered part of the lawyer’s duty of loyalty to
the client because it is made to prevent injury to the organizational
entity even if it involves disclosure of wrongdoing by officers or

employees of the organization.11'

Lawyers who represent companies publicly traded on U.S.
stock exchanges have additional duties enforced by federal law as a
result of the Sarbanes-Oxley Act (“SarbOx”), enacted by Congress
in 2002 in response to corporate scandals.*" Whereas ABA Model
Rule 1.13 requires corrective action by a lawyer for an organization
who “knows” of constituent wrongdoing related to the lawyer’s
representation of the organization, SarbOx and SEC regulations
implementing SarbOx require a lawyer to report up the corporate
ladder whenever she has credible evidence of a material violation of

securities law or a breach of fiduciary duties.21 The SarbOx stan¬

dard requires the organizational lawyer to go to independent di¬
rectors if appropriate corrective action is not taken,22 and the
lawyer may reveal confidential client information to the SEC if she
reasonably believes doing so is necessary to prevent or rectify a
material violation likely to cause substantial injury to the financial
interest or property of the client or investors, or to prevent client
fraud in an SEC investigation or proceeding.2 1
Lawyers in other legal systems often do not have similar legal
or ethical duties to report wrongdoing by organizational clients.21
The CCBE Code has no provisions comparable to Model Rule 1.13
and, indeed, no provisions that speak specifically to a lawyer’s
duties when representing an organizational client. Japan’s rules,
similar to ABA Model Rule 1.13(b) but with no equivalent to Model
Rule 1.13(c), require in-house attorneys who know of wrongdoing to
report that wrongdoing within the organization, including to the
board of directors when appropriate:
17. Id. 21. See 15 U.S.C. § 7245; 17 C.F.R.
18. Model Rule 1.13(c). § 205.2(d), (e), (Z ) and § 205.3(b).
22. Id.
19. See, e.g., George C. Harris, Tak¬ 23. 17 C.F.R. § 205.3(d).
ing the Entity Theory Seriously: Lawyer
Liability for Failure to Prevent Harm to 24. As noted by one set of commen¬
Organizational Clients Through Disclo¬ tators, “[t]he professional discourse on
sure of Constituent Wrongdoing, 11 Geo. the problems of representing a corpora¬
tion is very sparse except in the United
J. Legal Ethics 597 (1998).
States.” Geoffrey C. Hazard Jr. & Ange¬
20. Sarbanes-Oxley Act of 2002, lo Dondi, Legal Ethics: A Comparative
Pub. L. No. 107-204, 116 Stat. 745. Study 220 (2004).
132 REPRESENTING ORGANIZATIONS Ch. 7

If, in the course of performing his or her duties, an in-

house attorney gains knowledge of a person within the
organization performing or attempting to perform an ac¬
tion in violation of any law in the course of that person’s
duties, the in-house attorney shall provide full disclosure
or a recommendation to the head of the department of the
offending person or of the in-house attorney, the head of
the organization, the board of directors, governing body or
other superior organization, or take other appropriate

steps within the organization.2'’

A lawyer for a corporation or other organization that operates
in more than one country may be subject to various and conflicting
rules regarding reporting within the organization (“reporting up”)
or disclosure outside of the organization (“reporting out”) in the
event of misconduct by constituents of the organization. In the case
of a foreign company traded on U.S. stock exchanges, the lawyer
may be subject not only to conflicting ethical standards but to
demands of U.S. federal law inconsistent with duties of confiden¬
tiality in the foreign jurisdiction.
U.S. adoption of stricter reporting requirements for lawyers
may also implicate U.S. duties under the World Trade Organiza¬
tion’s General Agreement on Trade in Services (“GATS”).2<1 GATS
requires members to increasingly liberalize their regulations gov¬
erning the ability of foreign legal service providers to practice
within the member country.2’ One commentator has argued that
the SEC’s imposing stricter professional responsibility rules on all
lawyers who represent public companies would violate this provi¬
sions of GATS.2’'
Representation of organizational clients that operate transna-
tionally may pose cultural as well as legal challenges and may be
complicated by the differing roles of legal counsel in different
countries. In one much-discussed case, a Japanese corporation,
Daiwa Bank Ltd., received a letter from one of its New York traders

confessing to having concealed more than $1 billion in losses.29

28. Stewart M. Young, Comment,
25. Japanese Federation of Bar Asso¬
ciations, Basic Rules on the Duties of Whistleblowing in a Foreign Key: the
Consistency of Ethics Regulations under
Practicing Attorneys, art. 51 (“Duty to
Take Appropriate Action Toward Illegal Sarbanes-Oxley with the WTO GATS

Actions”). Provisions, 32 Denv. J. Int’l L. & Pol’y

55 (2003).
26. General Agreement on Trade in 29. Karen Donovan, Was Culture a
Services, Jan. 1, 1995, WTO Agreement,
Annex IB, available at http://www.wto. Player in Daiwa’s Illegal Cover-Up ?
Japanese Bank’s In-house Probe Carries
org/english/docs_e/legaLe/26-gats.pdf
(last visited Jan. 19, 2007) [hereinafter No Weight with Prosecutor. Are Ameri¬
GATS]. can Businesses Treated the Same?, Na¬
tional Law Journal, Mar. 11, 1996, at
27. Id. at art. VII. Bl.
Sec. B CORPORATE WHISTLE-BLOWING 133

Rather than engaging outside counsel to conduct an investigation,

the company conducted its own investigation before consulting with
counsel or making any disclosure to U.S. authorities. The ultimate
result was a guilty plea to 16 felony counts and $340 million in
penalties. One account of these events described the differences in
legal culture that may have led to this outcome.
IN JAPAN, WHERE reverence for harmony permeates
every aspect of life, businessmen have a code of behavior
that often vexes the pushy Americans with whom they do
deals. . . .

Not surprisingly, lawyers are left out of most decisions in

this culture, even when trouble strikes.

That could explain why Daiwa Bank Ltd.’s executives in

Osaka-after receiving a letter last July from a New York
trader in which he confessed that he had concealed more
than $1 billion in losses-acted as they did. The bankers,
their defenders say, decided to hide the losses until they
could put a better face on the situation, rather than
consult with their lawyers at New York’s Sullivan & Crom¬
well, their legal counsel for more than a decade.
But prosecutors had another, decidedly American word for
the bank’s conduct-cover-up ....
For U.S. lawyers lured to lucrative work for Japanese
financial institutions, the scandal offers a subtler lesson:
the agility to operate in a business culture where almost
every move is orchestrated by indirect action must some¬
how be blended with the candor U.S. laws require....
.... In a country that admits only 700 out of 20,000
applicants annually to its bar of “bengoshi,” or outside
lawyers, attorneys are rarely consulted-and then, only in
emergencies.

Discussion Questions:

7-8: You are in-house counsel for a Japanese corporation that is

traded on the New York stock exchange. An acquaintance in
the accounting department tells you over lunch that, contrary
to Generally Accepted Accounting Principles, the company
has prematurely recognized certain sales in order to improve
its quarterly financial report. What are your ethical duties?
7-9: If a lawyer represents an organizational client in multiple
jurisdictions with different ethical rules regarding when whis¬
tle-blowing is allowed or required, how should that lawyer’s
30. Id.
134 REPRESENTING ORGANIZATIONS Ch. 7

conduct be guided? What choice of law principles should

apply?

7-10: ABA Model Rule 8.5(b)(2) includes a “safe harbor” provision

that: “A lawyer shall not be subject to discipline if the
lawyer’s conduct conforms to the rules of a jurisdiction in
which the lawyer reasonably believes the predominant effect
of the lawyer’s conduct will occur.” Does this kind of safe
harbor rule make sense? Should it be made to apply general¬
ly as a matter of international agreement?

7-11: What do the differences in ethical rules regarding whistle¬

blowing reflect, if anything, about the differing roles of
lawyers in various jurisdictions?

7-12: If in-house counsel are independent enough to be subject to

whistle-blowing rules, should they also be independent for
application of the attorney-client privilege? Vice versa?

C. FOREIGN CORRUPT PRACTICES ACT

Lawyers who represent corporations that operate multi-nation-

ally are well-advised to pay particular attention to the Foreign
Corrupt Practices Act (“FCPA”),31 which prohibits payments to
foreign officials to obtain or retain business and provides criminal
penalties for violations. Such payments may be a common feature
of doing business in some countries. Lawyers need to be aware of
the provisions of the FCPA in order to properly advise their
corporate clients, who may be faced with the apparent need to
make such payments, and in order to protect themselves from
potential civil and criminal liability. They must also monitor the
actions of foreign lawyers or other agents on behalf of the client,
since those actions also may result in FCPA violations.

The FCPA was enacted in 1977 in response to Watergate-

related investigations that revealed the widespread practice by U.S.
companies of making payments to foreign government officials in
order to secure business in foreign countries.32 For many years, the
United States was alone in prohibiting such payments, while most
countries took the position that each nation must take responsibili¬
ty for preventing the bribery of its own officials.33 Some developed
countries even allowed tax deductions for such bribes."1 A number
31. Foreign Corrupt Practices Act of Advocacy Commentary on 15 U.S.C.
1977, Pub. L. 95-213, 91 Stat. 1494 78dd-l, available at LEXIS, 15 US
(1977) (codified as amended in scattered NITA 78dd-l.
sections of 15 U.S.C. ). „ . ,
32. Philip Urofsky & Catherine L.
Razzano, National Institute for Trial 34. Id.
Sec. C FOREIGN CORRUPT PRACTICES ACT 135

of international agreements now require signatory nations to enact

criminal laws similar to the FCPA.'55
In the following Second Circuit opinion, the court considered
whether a lawyer who allegedly gave erroneous legal advice regard¬
ing the reach of the FCPA could be held liable for malpractice
despite his corrupt client’s guilty plea to criminal charges and its
admission in making that plea that it “corruptly” and “knowingly”
bribed foreign officials. The lawyer, while advising his client that it
was prohibited from making the payment at issue, allegedly led the
company to believe that it could make the payment through its
foreign affiliate without incurring criminal liability under the
FCPA. The district court had held that the corporation was es¬
topped by its guilty plea from claiming that the lawyer had caused
the corporation to think such arranging of payments would not
violate the FCPA.

STICHTING TER BEHARTIGING VAN DE

BELANGEN VAN OUDAANDEELHOUDERS IN
HET KAPITAAL VAN SAYBOLT INTERNATIONAL
B.V. (FOUNDATION OF THE SHAREHOLDERS’
COMMITTEE REPRESENTING THE FORMER
SHAREHOLDERS OF SAYBOLT
INTERNATIONAL B.V.) v. SCHREIBER
327 F.3d 173 (2d Cir. 2003).

The plaintiff, Stichting ter behartiging van de belangen van

oudaandeelhouders in het kapitaal van Saybolt International B.V.
(Foundation of the Shareholders’ Committee Representing the For¬
mer Shareholders of Saybolt International B.V.), appeals from a
decision of the United States District Court for the Southern
District of New York (Jed S. Rakoff, Judge) granting the defen¬
dants’ motion for summary judgment. See Stichting ter behartiging
van de belangen van oudaandeelhouders in het kapitaal van Saybolt
International B.V. v. Schreiber, 145 F. Supp. 2d 356 (S.D.N.Y. 2001)
(“Stichting”). The plaintiff claims that the erroneous legal advice
given by defendant Philippe E. Schreiber caused a United States-
based corporation that was a subsidiary of a Dutch company to
violate the Foreign Corrupt Practices Act, 15 U.S.C. § § 78dd-l, et
seq. (“FCPA”). The corporation pleaded guilty in a Massachusetts
35. Id. Those agreements include the Council of Europe, Criminal Law Con¬
Organization of American States. Inter- vention on Corruption, Jan. 27, 1997, 38
American Convention Against Corrup¬ I.L.M. 505; Council of Europe, Agree¬
tion, Mar. 29, 1996, 35 I.L.M. 724; Or¬ ment Establishing The Group of States
ganization for Economic Cooperation
Against Corruption — GRECO, May 5,
and Development (OECD), Convention
1998, State Dept. No. 04-170; United
on Combating Bribery of Foreign Public
Officials in International Business Nations, Convention Against Corrup¬
tion, Dec. 11, 2003, 43 I.L.M. 37.
Transactions, Dec. 18, 1997, 37 I.L.M. 1;
136 REPRESENTING ORGANIZATIONS Ch. 7

federal district court to violating the FCPA, and its former chief
executive officer (“CEO”) was convicted of violating the FCPA by a
New Jersey federal district court jury.
In the case at bar, the district court concluded that the guilty
plea and the conviction collaterally estop the plaintiff, as the
corporation’s assignee, from claiming that Schreiber caused the
corporation to think that its acts would not violate the FCPA. We

disagree with the district court’s conclusion that the corporation’s

guilty plea is inconsistent with the plaintiffs theory of how
Schreiber misled the corporation .
Beginning in late 1994 or early 1995, Saybolt de Panama S.A.
(“Saybolt de Panama”), a subsidiary of Saybolt International under
Mead’s supervision, sought to acquire property in Panama for the
construction of a laboratory and office complex. Sometime in 1995,
Mead was told that Saybolt de Panama had identified suitable
property in the Panama Canal Zone but that the lease could be
acquired only if the company would first pay a $50,000 bribe to a
Panamanian government official.
Mead raised the issue of the bribe in a Saybolt North America
board meeting held in New Jersey on November 9, 1995. Schreiber,
a lawyer admitted to practice in New York State, was present at the
meeting. In addition to serving as a director of Saybolt North
America, Schreiber occasionally provided legal services to the corpo¬
ration. At the meeting, Schreiber advised those present that Say¬
bolt North America could not pay the proposed bribe to the Pana¬
manian official without subjecting the corporation and its officers
and directors to potential liability. Then and in the weeks that
followed, however, Schreiber allegedly led Mead and others to
believe that “the bribe payment could legally be made under U.S.
law by [their] Dutch affiliate,” Saybolt International. Am. Compl. P
13. Allegedly on this basis, on December 17, 1995, an employee of
Saybolt North America traveled by commercial airline from New
Jersey to Panama for purposes of arranging the bribe. On Decem¬
ber 21, 1995, Saybolt International wired $50,000 from the Nether¬
lands to a bank account controlled by Saybolt de Panama. The
Saybolt North America employee then directed an employee of
Saybolt de Panama to deliver the $50,000 to an individual acting as
an intermediary for the Panamanian official ....
The Malpractice Suit

Saybolt International’s former shareholders assigned their le¬

gal malpractice causes of action to the plaintiff, which brought this
diversity action in the United States District Court for the South¬
ern District of New York on November 18, 1999. In its amended
complaint, the plaintiff alleged that Schreiber, and through him
Walter, Conston, Alexander & Green, P.C., defendant-third-party-
Sec. C FOREIGN CORRUPT PRACTICES ACT 137

plaintiff, a law firm with which Schreiber was affiliated, committed

legal malpractice by failing to advise Saybolt North America that
“the bribe payment as proposed to be paid by a Dutch company to
Panamanian officials would violate the FCPA.” Am. Compl. P 110.
Without Schreiber’s malpractice, the amended complaint alleged,
“the bribe payment would not have been made, even at the cost of
the entire Panama deal.” Am. Compl. Pill. The plaintiff further
alleged that by committing such malpractice, Schreiber also breach¬
ed his lawyer’s fiduciary duty to Saybolt North America and
breached his contract to provide competent professional services.
Finally, the plaintiff alleged that Schreiber’s malpractice cost the
former Saybolt International shareholders $4.2 million, mostly in
criminal fines.

In a June 12, 2001, Memorandum Order, the district court

granted the defendants’ motion for summary judgment on all
claims. Stichting, 145 F. Supp. 2d at 359. The court noted that the
plaintiff alleged that Schreiber’s erroneous advice led Saybolt North
America to act without the knowledge that its conduct violated
United States law. Id. at 357. The court then held that this

allegation necessarily contradicts Saybolt North America’s guilty

plea to the charges that it violated the FCPA:
To enter such a plea Saybolt [North America! had to affirm, as
it did, that it undertook the misconduct in question with
knowledge of the corruptness of its acts. Since, if it had in fact
relied on Schreiber’s allegedly erroneous and misleading ad¬
vice, Saybolt [North America] would not have believed at the
time that its misconduct was unlawful or corrupt, it could
never have made this admission at its allocution or, indeed,
entered its guilty plea at all.
Id. (citations to the record omitted). On this basis, the district court
concluded that under the doctrine of collateral estoppel, Saybolt
North America’s guilty plea forecloses the plaintiffs theory of
causation. “Since Saybolt did . . . plead guilty and admit its crimi¬
nal intent, it is bound by those admissions, and therefore cannot
now contend either that it relied on Schreiber’s alleged advice or
that that advice, even if erroneous, . . . proximately caused whatev¬
er damages ... were incurred by Saybolt.” Id. at 357-58....
As the district court described it, the plaintiff s claim in its civil
suit is that its lawyer, Schreiber, “advised Saybolt [North America]
that a bribe payment by a foreign affiliate might be legal but also
failed to advise Saybolt [North America] that any involvement by
Saybolt [North America] or its officers in arranging the affiliate’s
payment could result in criminal liability.” Stichting, 145 F. Supp.
2d at 357. “If Saybolt [North America] had in good faith relied on
Schreiber’s advice, Saybolt [North America] would have believed
138 _ REPRESENTING ORGANIZATIONS Ch. 7

that its arranging the bribe through a foreign affiliate was permis¬
sible.” Id.
By pleading guilty, Saybolt North America admitted the six
elements of the FCPA crime: that (1) it was a domestic concern, (2)
that it made use of a means or instrumentality of interstate
commerce, (3) corruptly, (4) in furtherance of an offer or payment
of something of value to a person, (5) while knowing that the
money would be offered or given directly or indirectly to a foreign
official, (6) for purposes of influencing an act or decision of that
foreign official in his official capacity. But by pleading guilty,
Saybolt North America did not admit that at the time of the
criminal act it knew that the act of arranging, rather than paying,
such a bribe was criminal. Knowledge by a defendant that it is
violating the FCPA — that it is committing all the elements of an
FCPA violation — is not itself an element of the FCPA crime.
Federal statutes in which the defendant’s knowledge that he or she
is violating the statute is an element of the violation are rare; the
FCPA is plainly not such a statute. Saybolt North America did not,
therefore, by pleading guilty, preclude an assertion in a subsequent
civil action — the case at bar — that it did not know it was violating
the FCPA at the time of the violation.

The plaintiff is thus not collaterally estopped by Saybolt North

America’s criminal plea from arguing in this civil suit that, even
though Saybolt North America admittedly did commit a violation of
the FCPA, it did not know that it was committing a violation of the
FCPA at the time; that it did not know it was committing such a
violation because Schreiber negligently told it that it was not
committing a violation by causing a foreign entity to pay the bribe;
and that it suffered damages as a result of the negligent advice.
We therefore conclude that the case should be remanded to the
district court to permit the plaintiff to attempt to establish what
the district court identified as its claim: that the defendant advised
Saybolt North America that a bribe payment by a foreign affiliate
might be legal, but failed to advise Saybolt North America that any
involvement by Saybolt North America or its officers in arranging
the affiliate’s payment could result in criminal liability, i.e., as
stated in the Complaint, that “Schreiber erroneously advised [Say-
bolt North America] that the bribe payment could legally be made
under U.S. law by a Dutch affiliate,” Am. Compl. P 13; and that, as
stated by the district court, Saybolt North America “in good faith
relied on Schreiber’s advice” that “arranging the bribe through a
foreign affiliate was permissible,” Stichting, 145 F. Supp. 2d at 357 .
B. The “Corruptly” Element
To be sure, by pleading guilty, Saybolt North America admitted
that it acted “corruptly” — the element of the crime that we num-
Sec. C FOREIGN CORRUPT PRACTICES ACT 139

bered “3” in the discussion above — in its actions related to the

Panamanian bribe. The defendants see in this admission a collater¬
al bar to the plaintiffs assertion that Saybolt North America did
not know that it was violating the FCPA at the relevant time and,
indeed, was misled into believing that it was acting legally. The
district court apparently agreed. See Stichting, 145 F. Supp. 2d at
357. We do not. We conclude that an admission that an act was

done “corruptly” in this context is not equivalent to an admission

that the person committing it knew that it violated the particular
law at the time the act was performed. . . .

We thus conclude that the word “corruptly” in the FCPA

signifies, in addition to the element of “general intent” present in
most criminal statutes, n8 a bad or wrongful purpose and an intent
to influence a foreign official to misuse his official position. But
there is nothing in that word or any thing else in the FCPA that
indicates that the government must establish that the defendant in
fact knew that his or her conduct violated the FCPA to be guilty of
such a violation ....

We conclude that the question whether Saybolt North America

acted with knowledge that its conduct violated the FCPA was not
answered by its guilty plea, and thus that the plea does not
collaterally estop the plaintiff from litigating the issue in its claim
against Schreiber and the law firm with which he was affiliated.
See N.L.R.B. v. Thalbo Corp., 171 F.3d 102, 109 (2d Cir. 1999)

(collateral estoppel applies only to issues “actually decided” in the

previous proceeding).

Discussion Questions:

7-13: As a matter of public policy, should a company that incurs

criminal fines for bribing foreign officials be able to recover
the amount of those fines in a malpractice action against its
lawyer? Why or why not?

7-14: Assume, contrary to fact, that the company in this case could
not be prosecuted under the FCPA as long as the payment
was made by a foreign affiliate and that, though illegal in the
country of the foreign affiliate, such payments were never
actually prosecuted in that country. Would there be anything
unethical about the lawyer, Schreiber, advising his client to
that effect? Or actually arranging the payment by the foreign
affiliate?
140 REPRESENTING ORGANIZATIONS Ch. 7

7-15: Assuming that the FCPA can be violated through the actions
of foreign counsel on behalf of a corporation in a foreign
country, what steps should U.S. counsel reasonably take
when engaging the assistance of foreign counsel on behalf of
a corporate client in order to avoid violation of the FCPA?
 Chapter 8

DUTIES TO THE COURT

AND OTHERS

In all legal systems, lawyers owe duties not only to the client
but to the court, opposing parties and counsel, and third parties,
including witnesses. In the U.S., the ABA Model Rules address
specifically, for example, Candor Toward the Tribunal (Rule 3.3),
Fairness to Opposing Party and Opposing Counsel (Rule 3.4),
Impartiality and Decorum of the Tribunal (Rule 3.5), Trial Publici¬
ty (Rule 3.6), Truthfulness in Statement to Others (Rule 4.1),
Communications with a Person Represented by Counsel (Rule 4.2),
Dealing with Unrepresented Persons (Rule 4.3), and Respect for the
Rights of Third Persons (Rule 4.4). The ethical rules of most
countries address similar topics, though with varying emphasis and
sometimes with different results when duties conflict. How a legal
system balances conflicting duties may reflect basic differences in
its concept of the lawyer’s role and duties.

A. DUTIES TO THE COURT

1. Conduct with Regard to Court Proceedings

Ethical codes generally provide rules for a lawyer’s conduct in

court proceedings.1 The Japanese Code, for example, provides that

1. See, e.g., CCBE Rule 4.3 (“A law¬ Council of India, Rules Governing Advo¬
yer shall [] maintain[] due respect and
cates, Rule 1 (“An advocate shall, during
courtesy towards the court.”); Bar the presentation of his case and while
Council of England and Wales, Code of otherwise acting before a court, conduct
Conduct, Rule 708 (‘‘A barrister when himself with dignity and self-respect.”);
conducting proceedings in Court (a) is International Bar Association, Interna¬
personally responsible for the conduct
and presentation of his case and must tional Code of Ethics, Rule 6 (“Lawyers
shall always maintain due respect to¬
exercise personal judgement upon the
substance and purpose of statements wards the court.”); Ethical Code for Ital¬
ian Lawyers, art. 20 (“In addition to the
made and questions asked[.]”); Bar
141
142 _ DUTIES TO THE COURT AND OTHERS Ch. 8

‘■[a]n attorney shall endeavor to realize a fair trial and proper

procedure/' “shall not cause any delay in judicial proceedings by
negligence or for illegitimate purposes” and “shall not use his or
her personal relations with a judge, prosecutor or another public
servant involved in court proceedings in handling any matter.”2
With regard to court demeanor, the CCBE Code notes the
lawyer’s duty to “maintain!] due respect and courtesy towards the
court’ but also the lawyer’s duty to “defend the interests of his
client honourably and fearlessly without regard to his own interests
or to any consequences to himself or to any other person.”3 Similar¬
ly, the Code of Ethics of the International Bar Association provides
that “[l]awyers shall always maintain due respect towards the
court” but couples that with the declaration that “[ljawyers shall
without fear defend the interests of their clients and without regard
to any unpleasant consequences to themselves or to any other

person.”1
Ethical rules in most jurisdictions prohibit lawyers, with limit¬
ed exceptions, from having ex parte contacts with judges or juries.
ABA Model Rule 3.5 prohibits a lawyer from “seekfing] to influence
a judge, juror, prospective juror or other official by means prohibit¬
ed by law” and from “communicating ex parte with such a person
during the proceeding unless authorized to do so by law or court
order.” CCBE Rule 4.2 provides similarly that a lawyer “must not
. . . make contact with the judge without first informing the lawyer
acting for the opposing party or submit exhibits, notes or docu¬
ments to the judge without communicating them in good time to
the lawyer on the other side unless such steps are permitted under

the relevant rules of procedure.”0

2. Adverse Authority

When a lawyer is aware of legal authority adverse to her

client’s position, she has conflicting duties of loyalty to the client
requirements of any provision of civil or (“When acting as an advocate, before
criminal law, a lawyer must, in dealing the trial of a case, a lawyer should not
with lawyers, judges, opposing parties, communicate with or cause another to
and third parties, avoid using unsuitable communicate with anyone that the law¬
and insulting expressions in court plead¬ yer knows to be a member of the jury
ings or documents and in his profession¬ panel.”); Bar Council of India, Rules
al activity in general.”). Governing Advocates, Rule 3 (“Private
2. Japanese Federation of Bar Asso¬ communications with a judge relating to
ciations, Basic Rules on the Duties of
Practicing Attorneys, art. 74, 76-77. a pending case are forbidden.”); Ethical
Code for Italian Lawyers, art. 53 (“Ex¬
3. CCBE Rule 4.3 (“Demeanour in cept in particular cases, a lawyer may
Court”). not discuss a judicial proceeding with
4. International Bar Association, In¬ the judge before whom the proceeding is
ternational Code of Ethics, Rule 6.
pending without the lawyer for the ad¬
5. See also Canadian Bar Associa¬
tion, Code of Conduct, ch. IX, cmt. 21 verse party being present.”).
 Sec. A DUTIES TO THE COURT 143

and candor to the court. Most ethical rules require the lawyer to
disclose adverse authority to the court, but they define that duty
with varying degrees of rigor.

ABA Model Rule 3.3(a)(2) prohibits a lawyer from “fail[ing] to

disclose to the tribunal legal authority in the controlling jurisdic¬
tion known to the lawyer to be directly adverse to the position of

the client and not disclosed by opposing counsel.” The Canadian

Code provides similarly but somewhat more broadly that a lawyer
shall not “deliberately refrain from informing the tribunal of any
pertinent adverse authority that the lawyer considers to be directly
in point and that has not been mentioned by an opponent.”"
English barristers have an even broader duty to “ensure that
the Court is informed of all relevant decisions and legislative
provisions of which he is aware whether the effect is favourable or
unfavourable towards the contention for which he argues.”' Accord¬
ing to case authority, a barrister must disclose “any authority

A barrister’s duty to the court to provide all relevant authority

is reinforced by the implicit public interest ethic and close-knit
nature of the English inns of court, which encourage and enforce
allegiance to the court. As described by one commentator:

In its hierarchy of values, the Bar’s implicit ethical model

puts considerable emphasis on the idea that barristers
e.”6 7 8
should try to serve the public interest as well as the
interests of clients. This encourages, at least to some
extent, a greater loyalty on the part of English advocates
to the courts, and to one another, than to their clients.
ch .... In a bigger, more anonymous legal system, a
might lawyer might be tempted to mislead a court by commission
throw
or by omission. The lawyer might reasonably hope that the
light
misrepresentation would not be discovered, or if discover¬
upon
ed, matters
that it would not be remembered and held against the
lawyer. But in the small world of the English courts, a
under
barrister caught bending the truth, or even neglecting to
inform the court of an unfavorable precedent, would be

6. Canadian Bar Association, Code of noted that “[t]he appeal succeeds upon
Conduct, ch. IX, cmt. 2(h), n.ll. As sup¬ grounds never put forward by the appel¬
port for this principle, the Canadian lants (though they should have been);
Code cites the decision of the English never alluded to by either of the parties
court in Glebe. See infra note 8.
in any Court. It may be that this omis¬
7. Bar Council of England and sion has brought about the entire litiga¬
Wales, Code of Conduct, Rule 708(c). tion, certainly I should think it has
8. Glebe Sugar Refining Company brought about this appeal.” Id. at 76.
Ltd. v. Trustees of Port and Harbours On that basis, contrary to the normal
and Greenock, [1921] 2 A.C. 66, 68. In rule of loser pays, the court ordered the
Glebe, the opinion by Lord Birkenhead parties to bear their own costs. Id.
144 DUTIES TO THE COURT AND Ch. 8
OTHERS

discredited among the colleagues and judges that the bar¬

rister works with (and sees in the Inns) every day. Word of
a barrister’s disgrace could also be expected to spread to
the fairly small circle of solicitors from whom any given
barrister probably draws the bulk of his or her work. Thus,
there are formidable peer pressures on practicing barris¬
ters to comply with the prevailing ethical expectations.9
A similar phenomenon may exist in other, but not necessarily all,
legal systems. According to one pair of commentators:
Unfortunately, lawyers in some systems try to get away
with as much evasion and dissimulation as they can. The
judges come to distrust almost everything that lawyers tell
them, and the duty of candor falls into desuetude. In some
systems, however — those of England, Germany, and Japan
in particular — the judges trust almost all the advocates. In
any event, if a judge mistrusts a lawyer’s statements where
the lawyer speaks of his own knowledge, the lawyer will
have great difficulty with future interactions with the
judge, and perhaps with other judges in that court.10

3. False Evidence and Client Perjury

Ethical codes universally prohibit a lawyer from providing false

evidence to the court. How this duty is interpreted and applied,
however, may vary significantly among jurisdictions. When the
client is a defendant in a criminal prosecution, this duty may
conflict with the defendant’s right to testify in her own defense.
The CCBE Code provides without elaboration that “[a] lawyer
shall never knowingly give false or misleading information to the
court.”11 The International Bar Code provides similarly that a
“(Lawyer shall never knowingly give to the Court incorrect infor¬
mation or advice which is to their knowledge contrary to the law.”12
Most country codes have parallel provisions. The Ethical Code for
Italian Lawyers provides, for example, that “[a] lawyer may not
deliberately introduce false evidence into the trial. In particular, an
attorney shall neither put on record nor introduce declarations of

persons concerning facts which the lawyer knows to be untrue.”11

9. Maimon Schwarzchild, Class, Na¬ 12. International Bar Association,
tional Character, and the Bar Reforms International Code of Ethics, Rule 6.
in Britain: Will There Always Be an 13. Ethical Code for Italian Lawyers,
art. 14(1). See also Japanese Federation
England?,
(1994). 9 Conn. J. Int’l L. 185, 198
of Bar Association, Code of Ethics for

10. Geoffrey C. Hazard, Jr. & Angelo Practicing Attorneys, art. 54 (“An attor¬
Dondi, Legal Ethics: A Comparative ney shall not entice a witness into com¬
Study 237 (2004). mitting perjury or making a false state¬
ment, nor shall he or she submit false
11. CCBE Rule 4.4.
evidence.”).
Sec. A DUTIES TO THE COURT 145

The China Lawyers Law provides, without any explicit

“knowing” requirement, that a lawyer shall not “provide false
evidence, conceal facts or intimidate or induce another with prom¬
ise of gain to provide false evidence, conceal facts, or obstruct the
opposing party’s lawful obtaining of evidence.”14 A Chinese lawyer
who “provides! false evidence” or “conceal[sl important facts” is
subject to revocation of his practice certificate and criminal prose¬
cution.10 Under criminal procedure law, defense lawyers are specif¬
ically prohibited, among other things, from helping criminal defen¬
dants conceal evidence or collude with other defendants and from

inducing witnesses to commit perjury or change their testimony."’

These provisions have reportedly been applied in a way that
has significantly inhibited lawyers’ representation of criminal de¬
fendants in China. According to one commentator, “lawyers in
China can risk their careers and even their personal liberty as a
result of confrontations with authorities in the course of represent¬
ing their clients.”1. As that commentator explains:
In practice, lawyers often run into serious legal trouble
because witnesses, defendants, or suspects change their
testimony or statements after lawyers become involved,
thus prompting suspicion among prosecutors that the law¬
yers have suborned perjury. . . . Some lawyers have been
convicted merely for acquiring a different story from that
given to officials.
.... Liu Jian was detained and prosecuted for illegally
obtaining evidence, which resulted in a retrial. In fact,
defense lawyer Liu simply collected the full testimony of
several witnesses and presented them to the court. One of
the witnesses had altered his testimony from the original
statement that he had given to authorities. According to
prosecutors, it was the defense attorney who “induced”
the witness to change the testimony; therefore, he commit¬
ted the crime of “defender impairing testimony” . . . under
Article 306 ....

Further, there is currently no judicial interpretation that

effectively distinguishes “inducement” from a “leading
question”.... One commentator argues that there could
be many reasons why a witness may give different testimo¬
ny at different times. One of the most likely reasons is that
the first statement, particularly if given by a defendant, is

14. Lawyers Law, art. 35(5) (P.R.C.L 17. Ping Yu, Glittery Promise vs.
Dismal Reality: the Role of a Criminal
15. Lawyers Law, girt. 45(3) (P.R.C.).
Lawyer in the People’s Republic of China
16. Criminal Procedure Law, art. 38 after Revision of the Criminal Procedure
(P.R.C.); Criminal Law, art. 306
Law, 35 Vand. J. Transnat’l L. 827, 852
(P.R.C.). (2002).
146 _ DUTIES TO THE COURT AND OTHERS Ch. 8

false and obtained through torture. The mental hostility of

prosecutors towards lawyers, however, means that their
first inclination is to blame the lawyer .... Any rebuttal of

the prosecutor’s accusations, whether challenging evidence

or reasoning, could lead to potential trouble for the law¬

When a lawyer suspects that a client who is a criminal defen¬

yer.18
dant intends to commit perjury, the lawyer’s duty of candor to the
court directly conflicts with the client’s right to determine if he or
she will testify in her own defense.19 The ABA Model Rules distin¬
guish between a lawyer’s duties with regard to potential false
testimony of a criminal defendant client and other potentially false
evidence. Whereas the Model Rules allow the lawyer to refuse offer
other evidence that she reasonably believes is false, a lawyer must

honor the client’s decision to testify unless she knows the testimony
will be false.2"
While the Canadian Code does not directly address the ques¬
tion of potential perjury by a client who is a defendant in a criminal
case, it does provide that a lawyer shall not “knowingly assist or
permit the client to do anything that the lawyer considers to be
dishonest or dishonourable” and shall not “knowingly attempt to
deceive or participate in the deception of a tribunal or influence the

course of justice by offering false evidence ... ”21 Commentary on

the Canadian Code states that if a lawyer “knows that his client is
making false statements under oath and does nothing to correct it,

his silence indicates, at the very least, a gross neglect of duty.”2' In

R v. Moore ,23 the Saskatchewan Court of Appeal considered whether
an accused received ineffective assistance of counsel because his
counsel refused to put him on the stand after he had failed a
polygraph. In considering that question, the Canadian appellate
court relied heavily on ABA ethical guidelines.

18. Id. at 855-856 (footnotes omit¬

ted). lawyer must honor the client’s decision
to testify.”).
19. See Model Rule 1.2(a). 21. Canadian Bar Association, Code
20. See comments to Model Rule 3.3 of Professional Conduct, ch. IX, cmt.
2(b) & (e).
(“Because of the special protections his¬
torically provided criminal defendants 22. Canadian Bar Association, Code
. . . this Rule does not permit a lawyer of Professional Conduct, ch. IX, cmt.
to refuse to offer the testimony of such a
2(e), n.8, quoting McLennan J.A. in Re
client where the lawyer reasonably be¬ Ontario Crime Commission, 119621 37
lieves but does not know that the testi¬ D.L.R.2d 382, 391 (Can.).
mony will be false. Unless the lawyer
knows the testimony will be false, the 23. |2002| 217 Sask. R. 259 (Can.).
Sec. A DUTIES TO THE COURT 147

R v. MOORE
120021 217 Sask. R. 259 (Can.).

Tallis J.A.:

I
Introduction
1 On October 13, 2000, following a non-jury trial in the Court of
Queen’s Bench at Battleford, Saskatchewan, the appellant Edward
Robert Moore was convicted of sexual assault on S.M.H. contrary to
Section 272(l)(a) of the Criminal Code. |FN1| On January 26, 2001,
he was sentenced to three years imprisonment and prohibited from
possessing firearms for a period of 10 years. With that, Mr. Moore
appealed both conviction and sentence ....

II
Factual and Procedural BackgTound
6 Mr. Moore who is now 32 years of age was arrested on September
3, 1999 for a sexual assault which was alleged to have occurred on
or about August 23, 1991.
7 Following a preliminary hearing in February of 2000, he was
committed to stand trial on a charge that between the dates of
August 19 and 22 of 1991, in committing a sexual assault on S.M.H.
he did use a weapon, to wit: a handgun and did commit an offence
contrary to Section 272(l)(a) of the Criminal Code . . . .
9 Mr. Moore did not testify at his trial. More will be said about that
later in these reasons.
10 The complainant S.M.H. was the principal witness at trial.
There was no other direct or circumstantial evidence supporting
her testimony as to events at the relevant time ....
16 In his testimony before this Court (and in his affidavit filed on
the application) Mr. Moore denied that he ever forced S.M.H. to
have intercourse and in particular he denied ever having forced her
to have intercourse at gunpoint. Without quoting details from his
testimony he testified that this was always his position — a position
that he endeavoured to convey to his trial counsel.
17 Although S.M.H. and Mr. Moore ceased dating in the fall of
1991, he testified that they continued to be on good terms. If he
had testified at trial, he would have detailed subsequent specific
contacts between them including a visit to her apartment where
they engaged in consensual intercourse.
18 Following his release from custody in September 1999, Mr.
Moore’s employer, Mr. St. Onge, suggested that he take a polygraph
examination. Although Mr. Moore knew nothing about polygraph
examinations he was willing to undergo such an examination be¬
cause he thought it would demonstrate his innocence on the charge.
148 DUTIES TO THE COURT AND OTHERS Ch. 8

He discussed Mr. St. Onge’s suggestion with Mr. Lindgren [Moore’s

counsel] who was opposed to it and indicated that the results would
not be admissible in Court ....

20 Faced with persistent advice and inquiries by Mr. St. Onge, Mr.
Moore again spoke to Mr. Lindgren about taking a polygraph
examination. Once again Mr. Lindgren advised against this and
indicated that if “he failed the test” it could limit his defence. Mr.
Moore has no recollection of any explanation as to how his defence
could be limited — this is one area where his testimony differs from
Mr. Lindgren’s recollection of events. Since there is no note or
memorandum of this discussion it is difficult to determine what
discussion actually took place.

21 Given the pressure felt by Mr. Moore to take a polygraph

examination, Mr. Lindgren arranged for him to take a private
examination on September 28, 2000, administered by Mr. M. Robin¬
son of Robinson Investigations. Following this polygraph examina¬
tion Mr. Robinson notified Mr. Lindgren that Mr. Moore had
“failed” — in other words deception was indicated. After receiving
word from Mr. Robinson, Mr. Lindgren advised Mr. Moore of the
results by phone. He was surprised at the result.
22 With the case scheduled for trial on October 11, 2000, Mr.
Lindgren and Mr. Moore met on October 10. During that meeting
Mr. Moore signed the following acknowledgment:

“I, Ted Moore, acknowledge Eldon Lindgren advising me that

if I took a polygraph test and did not pass, I would not be
placed in the witness stand to deny committing the offence I
am charged with. I also acknowledge him advising me that
someone else from his firm would not be able to question me

either.”
23 Mr. Moore’s failure to testify at his trial was intimately linked to
the “failed” polygraph examination. His counsel’s advice carried
with it the notion, as understood by Mr. Moore, that a deceptive
indication on the polygraph examination was proof of untruthful¬
ness that foreclosed counsel from calling him to testify in his own
defence.

24 We accept Mr. Moore’s testimony that as a result of the advice

Mr. Lindgren gave him he believed that all lawyers were ethically

bound to refrain from calling him to testify because of the “failed"

polygraph examination. Although there may have been some dis¬
cussion about being free to instruct other counsel, it was not
unreasonable for Mr. Moore to assume in these circumstances that
all lawyers were bound by the same ethical rules or guidelines. . . .
Sec. A DUTIES TO THE COURT 149

Application to this Case

43 In light of the above authorities this case concerns the adequacy
of trial counsel’s advice with respect to Mr. Moore’s right to testify
at his trial and whether as a consequence of that advice his trial
miscarried.

44 Put another way, this case presents the question whether trial
counsel’s pre-trial constraint on Mr. Moore’s ability and opportuni¬
ty to testify mandates a new trial.

45 As an initial matter it is important to point out what is not in

issue in this case. This is not a situation where trial counsel was
faced with a client who proposed to personally offer false testimony
in court to refute the complainant’s testimony. There is no sugges¬
tion that Mr. Moore sought his counsel’s cooperation in presenting
perjured testimony at his trial: See for example Nix u. Whiteside
(1986), 106 S. Ct. 988 (U.S. Iowa); Meek v. Fleming, 11961J 3 All
E.R. 148 (Eng. C.A.) and Myers u. Elman (1939), [19401 A.C. 282
(U.K. H.L.).

46 Counsel’s advice to Mr. Moore that a “failed” polygraph exami¬

nation would foreclose him calling Mr. Moore as a witness did not
arise from a strategic choice “made after thorough investigation of
law and facts relevant to plausible options”: See Strickland (1984),
466 U.S. 668 (U.S. Fla.), at 690.

47 Learned counsel for the Crown vigorously contended that Mr.

Moore made an election to proceed on the terms dictated by his
counsel and accordingly waived his right to testify before the trial
commenced. Given our finding that Mr. Moore was under a misap¬
prehension as to the legal consequences of a “failed” polygraph
examination, we cannot give effect to that contention. Any waiver
in these circumstances was “uninformed” having regard for the
intimate link between the polygraph examination results and coun¬
sel’s “ethical position” that he would not call Mr. Moore to testify
on his own behalf.

48 In dealing with the role and function of defence counsel one

must have regard for the specific circumstances of this case. Mr.
Moore was faced with a charge going back some eight years in time.
In realistic terms he was the only person who could answer to the
complainant’s direct testimony at trial. The decision whether he
should testify was critical. On that issue he was entitled to the full
and careful advice of his counsel, particularly after the prosecu¬
tion’s case has been closed: See for example: ABA Standards for
Criminal Justice Prosecution Function and Defense Function: Con¬
trol and Direction of the Case, 3d ed. (Washington: American Bar
150 DUTIES TO THE COURT AND Ch. 8
OTHERS

Association, 1993) Standard 4-5.2 at 199 where the following

commentary is offered as a sound guideline:
Allocation of Decision-making Power *
Certain basic decisions have come to belong to the client while
others fall within the province of the lawyer. [See ABA Model Rule
of Professional Conduct 1.2(a)].... With respect to the decision
whether the defendant should testify, the lawyer should give his or
her client the benefit of his or her advice and experience, but the
ultimate decision must by made by the defendant, and the defen¬
dant alone. [Cf. Rock v. Arkansas, 483 U.S. 44 (1987)]. In making
each of these decisions — whether to plead guilty, whether to accept
a plea agreement, whether to waive jury trial, whether to testify,
and whether to appeal — the accused should have the full and
careful advice of counsel. Although it is highly improper for counsel
to demand that the defendant follow what counsel perceives as the
desirable course or for counsel to coerce a client’s decision through
misrepresentation or undue influence, [See Standard 4-5. 1(b)
(counsel should not exert undue influence on the accused’s decision
as to his or her plea).] counsel is free to engage in fair persuasion
and to urge the client to follow the proffered professional advice.
Ultimately, however, because of the fundamental nature of deci¬
sions such as these, so crucial to the accused’s fate, the accused
must make the decisions himself or herself. . . .

49 We conclude that Mr. Moore’s defence was hampered by his

counsel’s “ethical” view of the effect of a failed polygraph examina¬
tion. Mr. Lindgren imposed this external constraint which affected
Mr. Moore’s ability to defend. This external but self-imposed con¬
straint limited his ability to advise Mr. Moore with respect to
testifying at the end of the prosecution’s case. . . .
50 Learned counsel for the Crown contended that Mr. Moore must
bear sole responsibility for his dilemma because he failed to ask
more questions and make further inquiries. This argument would
have merit if Mr. Moore was a sophisticated person knowledgeable
about legal proceedings. In this case Mr. Moore honestly assumed
that all counsel are “ethically” bound by the same guidelines or
governing rules that Mr. Lindgren adopted in his practice. Perhaps
he can be faulted for placing too much faith in the advice of his
employer but this factor overlooks the fundamental tests articulat¬
ed in B. (G.D.), supra, Strickland and other authorities.
51 In this regard Mr. Moore was entitled to clear advice with

respect to the controlling law or legal principles. Given Mr. Moore’s

lack of legal knowledge it was important for him to have a full
grasp of the controlling principles that governed his right to testify
as well as advice to assist him in making a decision on the question
whether or not he should testify. Had this advice been given we
Sec. A DUTIES TO THE COURT 151

think that there is a real probability that Mr. Moore would have
testified. We find that his defence was prejudiced by the failure to
fully advise him on this critical point in the trial.
52 We have no doubt that the course adopted by Mr. Lindgren was
well intentioned and taken with the best of motives — a sincere
regard for the professional obligation of an advocate. In Tombling
v. Universal Bulb Co., [1951] 2 T.L.R. 289 (Eng. C.A.), at 296,
Singleton L.J. quoted from Lord Macmillan in The Ethics of Advo¬
cacy at p. 17: “In the discharge of his office the advocate has a duty
to his client, a duty to his opponent, a duty to the Court, a duty to
the State and a duty to himself. . . .
53 In some instances counsel may face a difficult task in balancing
these duties. In this case we are all of the opinion that Mr.
Lindgren subordinated his duty to his client to his own ethical
decision that he would not call Mr. Moore to testify in light of his
“failed” polygraph examination. In hindsight it might have been
preferable for him to have withdrawn.

54 Given the jurisprudence on the reliability of polygraph examina¬

tions, the decision taken and the advice given to Mr. Moore in¬
volved insufficient regard to his duty to Mr. Moore in the special
circumstances of this case. A self imposed constraint on one’s
ability to advise a client, particularly at the crucial stage — the close
of the prosecution’s case — does not relieve an advocate of his duty
to give effective assistance to his client on the crucial question
whether to testify on his own behalf.
55 We conclude that the advice proffered to Mr. Moore with respect
to his ability to testify, though well intentioned and made with the
best of motives by an experienced and respected counsel, breached
the standards of effective representation articulated in B. (G.D .)
and Strickland. Having considered the evidence before us, we find
that but for this advice Mr. Moore probably would have testified at
trial and that had he testified, his testimony could reasonably be
expected to have affected the result. In short, and absent Mr.

Moore’s testimony, the trial cannot be relied upon as having

produced a necessarily just result.
56 In the exceptional circumstances we find that Mr. Moore has
met the heavy onus for admission of the fresh evidence on the
ineffective assistance argument. Accordingly we allow the appeal,
quash the conviction and order a new trial ....
Appeal allowed; new trial ordered.

According to one commentator, some civil law countries take a

very different approach to client perjury and do not give lawyers
the responsibility to prevent false client testimony.
152 DUTIES TO THE COURT AND Ch. 8
OTHERS

The approach taken by the ABA Model Rules to the

issue of [a] client’s perjury is in sharp contrast with one
taken, at least, by some European civil law countries.
Whereas the civil lawyer may not encourage her client or
another witness to lie, she is not responsible for how
witnesses, including her own client, testify. Thus, the
broader obligations with regard to witness testimony found
in the ABA Model Rules have no counterpart in some
European civil law systems. In those systems, the judge is
responsible for taking the testimony and warning wit¬
nesses of the penalties of perjury when sworn testimony is
taken, whereas lawyers are not expected to ‘filter out’ false
evidence.24

4. Arguing for False Inferences

While the subject of some debate,23 it is generally accepted in

the United States that a lawyer defending a client in a criminal
case can argue for logical inferences from truthful testimony even if
the lawyer knows that those inferences are false. Thus, for exam¬
ple, the lawyer can argue that the defendant was not at the scene of
the crime because no forensic evidence supports the defendant’s
presence and other evidence suggests the defendant’s presence
elsewhere, even though the lawyer knows as a result of confidential
confessions from the client that the client was there and committed
the crime. This is considered a legitimate way to test the prosecu¬
tion’s ability to prove its case beyond a reasonable doubt.
By contrast, a British barrister, while obligated to vigorously
defend her client and put the prosecution to its proof, is prohibited
from defending on the basis of an affirmative version of events, or
inferences from the evidence that are inconsistent with a confession
that the defendant has made to counsel. The standards for barris¬
ters in the Bar Council of England and Wales provide that:

[T]he mere fact that a person charged with a crime has

confessed to his counsel that he did commit the offence
charged is no bar to that barrister appearing or continuing
to appear in his defence, nor indeed does such a confession
release the barrister from his imperative duty to do all that
he honourably can for his client.

24. Professional Legal Ethics: A (1987) with John Mitchell, Reasonable

Comparative Perspective 70 (Maya Gold¬ Doubts Are Where You Find Them: A
stein Bolocan, ed., 2002).
Response to Professor Subin’s Position
25. Compare Harry Subin, The on the Criminal Lawyer’s “Different
Criminal Lawyer’s ‘Different Mission’: Mission”, 1 Geo. J. Legal Ethics 339
(1987).
Reflections on the ‘Right’ to Present a
False Case, 1 Geo. J. Legal Ethics 125
Sec. A DUTIES TO THE COURT 153

Such a confession, however, imposes very strict limitations

on the conduct of the defence. A barrister must not assert
as true that which he knows to be false. He must not
connive at, much less attempt to substantiate, a fraud.
While, therefore, it would be right to take any objections to
the competency of the Court, to the form of the indict¬
ment, to the admissibility of any evidence or to the evi¬
dence admitted, it would be wrong to suggest that some
other person had committed the offence charged, or to call
any evidence which the barrister must know to be false
having regard to the confession, such, for instance, as
evidence in support of an alibi. In other words, a barrister
must not (whether by calling the defendant or otherwise)
set up an affirmative case inconsistent with the confession
made to him.

A more difficult question is within what limits may counsel

attack the evidence for the prosecution either by cross-
examination or in his speech to the tribunal charged with
the decision of the facts. No clearer rule can be laid down
than this, that he is entitled to test the evidence given by
each individual witness and to argue that the evidence
taken as a whole is insufficient to amount to proof that the
defendant is guilty of the offence charged. Further than
this he ought not to go.2h
The Canadian rules similarly prohibit arguments by defense coun¬
sel that the defense counsel knows are based on false premises as a
result of privileged admissions by the defendant.2'
The crucial question of when a client has “confessed,” like the
parallel question of when the lawyer knows that the client intends
to commit perjury, may be difficult to answer in practice. The
standards for barristers acknowledge the difficulties that may at¬
tend this question.
The foregoing is based on the assumption that the defen¬
dant has made a clear confession that he did commit the
offence charged, and does not profess to deal with the very
difficult questions which may present themselves to a
barrister when a series of inconsistent statements are
made to him by the defendant before or during the pro¬
ceedings; nor does it deal with the questions which may
arise where statements are made by the defendant which
point almost irresistibly to the conclusion that the defen-

26. Bar Council of England and barcouncil.org.uk (last visited Jan. 19,
Wales, Written Standards for the Con- 2007).
duct of Professional Work, Standards 27. Canadian Bar Association, Code
12.2-12.5, available at http://www. of Professional Conduct, ch. IX, cmt. 11.
154 DUTIES TO THE COURT AND OTHERS Ch. 8

dant is guilty but do not amount to a clear confession.

Statements of this kind may inhibit the defence, but ques¬
tions arising on them can only be answered after careful
consideration of the actual circumstances of the particular

case.2s
5. Trial Publicity

ABA Model Rule 3.6, which regulates a U.S. lawyer’s conduct

with regard to trial publicity, prohibits a lawyer from making any
statements that “have a substantial likelihood of materially preju¬
dicing” the proceeding.21' Rule 3.6 and similar rules in most U.S.
jurisdictions do not, however, specifically prohibit a lawyer from
commenting on the merits of a case or giving the lawyer’s opinion
about the likely outcome of the case. Indeed, Rule 3.6 specifically
authorizes a lawyer to “make a statement that a reasonable lawyer
would believe is required to protect a client from the substantial
undue prejudicial effect of recent publicity not initiated by the

lawyer or the lawyer’s client.”311

In contrast, the U.K. Rules categorically prohibit a barrister
from commenting on the merits of a pending case.
A barrister must not in relation to any anticipated or
current proceedings or mediation in which he is briefed or
expects to appear or has appeared as an advocate express a
personal opinion to the press or other media or in any
other public statement upon the facts or issues arising in

the proceedings.31
This difference may be explained, at least in part, by greater
restrictions in the U.K. on press commentary on pending cases. An
English court can use the law of contempt to stay court proceedings
due to pre-trial publicity as part of its abuse of process jurisdiction
and obligation to protect a defendant from having to undergo a trial
which is unfair.32 In one case, the House of Lords stated that any
public prejudgment of the merits of a pending case (irrespective of
any influence it might exert on the trial participants) was punisha-
28. Bar Council of England and trial Publicity , Crim.L.R. 2002, 719, 720
Wales, Written Standards for the Con¬ (2002) (noting that the U.K. common
duct of Professional Work, Standard law standard and the European Conven¬
12.6, available at http://www.barcouncil. tion of Human Rights apply essentially
org.uk (last visited Jan. 19, 2007). the same test to determine whether pre¬
29. Model Rule 3.6(a). trial publication of information renders
30. Model Rule 3.6(c). a trial unfair: whether the risk of preju¬
31. Bar Council of England and dice is so grave that it cannot be re¬
moved by judicial direction), citing
Wales, Code of Conduct, Rule 709.1.
Montgomery v. H.M. Advocate, 12001] 2
32. T.M. Honess, Empirical and Le¬ W.L.R. 779 (per Lord Hope).
gal Perspectives on the Impact of Pre¬
Sec. A DUTIES TO THE COURT 155

ble by contempt of court because it constituted “trial by media.” !i

With greater court power to prevent prejudicial publicity, there is
less justification for allowing public comments by lawyers to coun¬
ter such prejudice.

Discussion Questions:

8-1: Jurisdictions generally require a lawyer to inform the court of

adverse legal authority but not adverse facts. Does it make
sense to treat legal authority and facts differently in this
regard? Why or why not?
8-2: Jurisdictions vary in the completeness of their requirement
that a lawyer inform the court of adverse legal authority. The
ABA Model Rules narrowly require disclosure of “legal au¬
thority in the controlling jurisdiction known to the lawyer to
be directly adverse to the position of the client and not
disclosed by opposing counsel,” whereas a U.K. barrister is
obligated to disclose “any authority which might throw light
upon matters under debate” whether favorable or unfavora¬
ble to the barrister’s client. Which rule is preferable? Why?
Do the rules reflect different concepts of a lawyer’s competing
duties to the client and the court?

8-3: Some jurisdictions give a lawyer an ethical duty to prevent a

criminal defendant client from giving false testimony. In
other jurisdictions a lawyer must not encourage any false
testimony by the client but is not responsible for how the
client testifies. Which approach strikes the best balance, tak¬
ing into account a lawyer’s duty of loyalty to a client, the
lawyer’s duty of candor to the court and the client’s rights of
self-defense? What problems are created by a system that
requires a lawyer to be the filter of the client’s testimony? By
a system that does not make the lawyer responsible for the
truthfulness of the client’s testimony?
8-4: If a lawyer is prohibited from introducing the testimony of a
criminal defendant client that the lawyer “knows” is false,
what standard should be applied for the lawyer’s knowledge?
Beyond a reasonable doubt? Some lesser or greater standard?
Was R v. Moore correctly decided? If the failed polygraph test
was not enough to trigger the lawyer’s duty to not present the
client’s testimony, what more should be required?
8-5: Should a lawyer for a criminal defendant be allowed to argue
inferences from the evidence that are possible but which the
lawyer knows to be false because of the client’s confidential
confessions to the lawyer? Can a lawyer adequately test the

33. Attorney-General v. Times News- scandal because it would prejudice a civil

papers Ltd., [1974] A.C. 273 (banning action),
newspaper from printing stories about a
156 DUTIES TO THE COURT AND OTHERS Ch. 8

prosecution’s burden to prove guilt beyond a reasonable doubt

without the ability to make any argument supported by the
evidence? Do the different resolutions of these questions by
the U.S. and other jurisdictions reflect a different balance
between the lawyer’s duties to the client, on the one hand,
and to the court, on the other.

8-6: Should a lawyer be allowed to talk with the press about the
merits of a client’s claims or defenses? Why or why not? Does
doing so ever hinder the ability of the court to provide justice?
Does it ever promote justice? Does the public have a right to
hear from lawyers on cases of public interest? Should concern
for fairness and justice in a criminal case prohibit discussion
of the merits of a criminal prosecution by the press as well as
by the lawyers involved in the case?

B. DUTIES TO OTHERS

1. Represented Persons — the “No Contact” Rule

To protect a person represented by a lawyer against possible
overreaching by other lawyers in the matter and uncounseled
disclosure of information relating to the representation, U.S. juris¬
dictions generally prohibit contact by the other lawyers without
consent of the person’s counsel. The Model Rules version of this
“No Contact” rule, Model Rule 4.2, provides that:
In representing a client, a lawyer shall not communicate
about the subject of the representation with a person the
lawyer knows to be represented by another lawyer in the
matter, unless the lawyer has the consent of the other

lawyer or is authorized to do so by law or court order.'*1

The rules of most jurisdictions have similar provisions. The
CCBE Code states without exception that:
A lawyer shall not communicate about a particular case or
matter directly with any person whom he or she knows to
be represented or advised in the case or matter by another
lawyer, without the consent of that other lawyer (and shall
keep the other lawyer informed of any such communica¬

tions).3'1
The International Bar Code provides similarly that “[i]t shall be
considered improper for lawyers to communicate about a particular
case directly with any person whom they know to be represented in
that case by another lawyer without the latter’s consent. ”3K As
another example, the Code of Professional Conduct for Defence
34. Model Rule 4.2. 36. International Bar Association,
35. CCBE Rule 5.5. International Code of Ethics, Rule 7.
Sec. B DUTIES TO OTHERS 157

Counsel for the international tribunal for Rwanda, provides:

“Counsel must not communicate with the client of another Counsel
except through or with the permission of that client’s Counsel.” !‘
Some jurisdictions make exceptions for limited categories of
written communications. The Ethical Code for Italian Lawyers
makes an exception for correspondence, copied to the opposing
party’s lawyer, that notifies the opposing party that a specific act
must be completed by a certain date or that a stipulated payment is
coming due.!S The French National Bar Council rules make an
exception for written communications regarding settlement before
the commencement of court proceedings and phone calls under the
same circumstances if initiated by the opposing party. It provides:
If an out of court settlement is likely to be reached in a
dispute before any proceedings are commenced, lawyers
may make contact with the opposing party with the con¬
sent of the client.

The initiation of contact may only take place by addressing

a letter to that party indicating the addressee’s right to
consult lawyers and inviting the party to make known the
name of the party’s advisers.
In this letter lawyers, while clearly setting out the object of
the request, shall not threaten nor take unfair advantage
of the addressee. The letter may, however, mention the
possibility of legal proceedings.

These rules shall also apply to any telephonic communica¬

tion; lawyers may not, however, initiate such communica¬

Some tion.'59
of the most difficult questions for application of the “No
Contact” rule arise with regard to contacts with officers, employees
or other agents of a represented organization. U.S. jurisdictions are
divided over exactly where to draw this line.1" The comments to
ABA Model Rule 4.2 provide that:

37. International Criminal Tribunal WESTLAW, 2 Ann. 2004 ATLA-CLE

for Rwanda, Code of Professional Con¬ 1785 (noting that U.S. jurisdictions em¬
duct Defence Counsel, art. 17(2). ploy different tests to determine wheth¬
38. Ethical Code for Italian Lawyers, er an employee constitutes a “party” to
the litigation including the control group
art. 27.
test). See, e.g., Model Rule 4.2, cmt. 7
39. National Bar Council of France, and accompanying text; California Rule
Harmonised Practice Rules, art. 8.2. of Professional Conduct 2-100 (prohibit¬
ing contact with officer, director, or
40. Ellen J. Messing & James S. We- managing agents of an organization and
liky, Contacting Employees of an Adverse employees whose acts or omissions in
Corporate Party: A Plaintiff’s Attorney’s connection with the matter may be im¬
View, in 2 ATLA Annual Convention puted to the organization for purposes of
Reference Materials, Employment civil or criminal liability); New Jersey
Rights 1785 (July 2004), available at Rules of Professional Conduct 1.13(a),
158 DUTIES TO THE COURT AND OTHERS Ch. 8

In the case of a represented organization, this Rule prohib¬

its communications with a constituent of the organization
who supervises, directs or regularly consults with the
organization’s lawyer concerning the matter or has author¬
ity to obligate the organization with respect to the matter
or whose act or omission in connection with the matter
may be imputed to the organization for purposes of civil or
criminal liability.41
The commentary to the Canadian Code provides similarly though
somewhat more narrowly that:
A lawyer retained to act on a matter involving a corpora¬
tion or organization that is represented by another lawyer
should not approach
(a) a director, officer, or person likely involved in the
decision-making process for the corporation or or¬
ganization, or

(b) an employee or agent of the corporation or organi¬

zation whose acts or omissions in connection with
the matter may have exposed it to civil or criminal
liability, concerning that matter,
except to the extent that the lawyer representing the
corporation consents or as otherwise authorized or re¬

quired by law.42

2. Unrepresented Persons — Witnesses

Similar to ABA Model Rule 4.3 in the U.S., the rules of most
jurisdictions require counsel in dealing on behalf of a client with an
unrepresented person to clarify the role that counsel plays in the
matter and not give legal advice other than the advice to secure
legal representation.413 The Ethical Code for Italian Lawyers lacks
42. Canadian Bar Association, Code
4.2 (adopting “litigation control group”
test which prohibits contact with those of Professional Conduct, ch. IX, cmt. 6.
with significant involvement in determi¬
43. See, e.g., Canadian Bar Associa¬
nation of corporation’s legal position); tion, Code of Conduct, ch. IX, cmt. 6
Restatement (Third) of Law Governing
Lawyers § 100 cmt. e (2000) (advocating (“The lawyer may properly seek infor¬
alter ego or managing/speaking agent mation from any potential witness
test); NAACP v. State of Florida, 122 (whether under subpoena or not) but
F.Supp.2d 1335, 1341 (M.D. Fla. 2000) should disclose the lawyer’s interest and
take care not to subvert or suppress any
(finding “no appropriate bright-line rule
to follow . . . rather, the better analysis evidence or procure the witness to stay
is to balance the competing interests: a
out of the way.”); and cmt. 8 (“The
plaintiffs need to conduct discovery, in¬ lawyer should not undertake to advise
vestigate, and gather information on an an unrepresented person but should
informal basis and the defendant’s need urge such a person to obtain indepen¬
to protect communications and for ade¬ dent legal advice and, if the unrepre¬
quate and effective representation”). sented person does not do so, the lawyer
must take care to see that such person is
Sec. B DUTIES TO OTHERS 159

these specific directions but provides that “|a| lawyer who speaks
to witnesses about circumstances involved in a judicial proceeding
must avoid being too forceful or making direct suggestions in an
effort to obtain favorable evidence.”"
In the U.K., different ethical standards govern solicitors and
barristers with regard to witness contact and preparation. Solicitors
interview the witnesses and prepare them to testify.1'1 For each
witness, the solicitor prepares a “proof of evidence,” a written
statement of everything the witness knows about the case, and
provides this statement to the barrister.46
Traditionally, it was a violation of professional ethics for an
English barrister to have direct contact with witnesses, other than
her lay client and expert witnesses. U.K. rules continue to prohibit
a barrister from interviewing a witness in a criminal case.
Contested criminal cases in the Crown Court present pecu¬
liar difficulties and may expose both barristers and wit¬
nesses to special pressures. As a general principle, there¬
fore, with the exception of the lay client, character and
expert witnesses, subject to 6.3.2 [interview of potential
witnesses by prosecution counsel pursuant to instruction],
it is wholly inappropriate for a barrister in such a case to
interview any potential witness. Interviewing includes dis¬
cussing with any such witness the substance of his evi¬
dence or the evidence of other such witnesses ....

not proceeding under the impression in the proceedings, whether or not that
that the lawyer is protecting such per¬ witness has been interviewed or called
son’s interests.”); International Crimi¬ as a witness by another party. ... |A]
nal Tribunal for Rwanda, Code of Pro¬ solicitor must not, of course, tamper
fessional Conduct Defence Counsel, art. with the evidence of a witness or at¬
18 (in dealing with an unrepresented tempt to suborn the witness into chang¬
person, counsel w[m]ust not give advice ing evidence.”), quoting The Guide to
to this unrepresented person if the in¬ the Professional Conduct of Solicitors s
terests of the person are, or have a rea¬ 22.05, cmt. 2 (Stephen Hammett et al.
sonable possibility of being, in conflict eds., 6th ed. 1993).
with the interests of the Counsel’s
client” but “[m]ay advise the unrepre¬ vi th wi ta ca wr
sented person to secure legal representa¬ ew e tn ke re it
no an e
la ss dr th f
purl of teenv
tion” and “[c]ounsel must inform the t t a e t oo p i¬
de es bud ot er , fdti he f ro of
unrepresented person of the role Coun¬ nc , t he ct o
sel plays in the matter, the persons right e e, i t rs w a te pr f so
to Counsel under the Rules, and the thvid th win he ciatn ma sues
a e e t ne k ggen
nature of legal representation in gener¬ as t tnhce go naels Un ss’ e bo meesce
th e
wiy o s
rneg d
ane co h s t ttohi
al”). e tn a.d dr rr nooedn or
mo dr es an s ul ec th so s,
a s ti tse li
44. Ethical Code for Italian Lawyers, anre wi fts adr maat a ve ci th
art. 52. d tn , r i te rs to at
su th es bo vTeh pr ly of evio r i
it em s th e oo idn s
45. Richard C. Wydick, The Ethics of tr s a jo pr. f
of th so e an
u in e l n ce
Witness Coaching, 17 ICardozo
d. L. Rev. 1, th ly wi t tohdu wi pr ici thd
at e tn e ct tn ov tor e
6 st li es bu th so es su id th
6 n.12 (1995) (“It is permissible
(“ for a or ne s t e l i s p e e
solicitor acting for any party So to inter¬ or y , ; de ci w
toha tpoli sin
g c es cl
view and take statements frommes any wit¬ an ani wh to om idean prr t mu ud of
ol stage d za at it s d ov ch e
ness or prospective witness at any ic t , i de
it th wo ion s
or e rd ,
isn in
te g.
r
160 DUTIES TO THE COURT AND OTHERS Ch. 8

Where any barrister has interviewed any potential witness

or any such witness has been interviewed by another
barrister, that fact shall be disclosed to all other parties in
the case before the witness is called. A written record must
also be made of the substance of the interview and the

reason for it.47

There is no longer, however, any rule which categorically
prevents a barrister from having contact with a witness in a civil
caseA Standards for barristers now discourage but do not prohibit
the discussion of evidence with a witness in a civil case.

Different considerations apply in relation to contact with

witnesses for the purpose of interviewing them or discuss¬
ing with them (either individually or together) the sub¬
stance of their evidence or the evidence of other witnesses.

Although there is no longer any rule which prevents a

barrister from having contact with witnesses for such
purposes a barrister should exercise his discretion and
consider very carefully whether and to what extent such
contact is appropriate, bearing mind in particular that it is
not the barrister’s function (but that of his professional
client) to investigate and collect evidence.

A barrister should be alert to the risks that any discussion

of the substance of a case with a witness may lead to
suspicions of coaching, and thus tend to diminish the value
of the witness’s evidence in the eyes of the court, or may
place the barrister in a position of professional embarrass¬
ment, for example if he thereby becomes himself a witness
in the case. These dangers are most likely to occur if such
discussion takes place:
(a) before the barrister has been supplied with proof
of the witness’s evidence; or

(b) in the absence of the barrister’s professional client

or his representative
A barrister should also be alert to the fact that, even in the
absence of any wish or intention to do so, authority figures
do subconsciously influence lay witnesses. Discussion of
the substance of the case may unwittingly contaminate the
witness’s evidence.

47. Bar Council of England and barcouncil.org.uk (last visited Jan. 19,
Wales, Written Standards for the Con- 2007).
duct of Professional Work Standards 48 Wydick)
supra note 45, at 8.
6.3.1, 6.3.4, available at http://www.
 Sec. B DUTIES TO OTHERS 161

There is particular danger where such discussions:

(a) take place in the presence of more than one wit¬
ness of fact; or
(b) involve the disclosure to one witness of fact of the
factual evidence of another witness.
These practices have been strongly deprecated by the
courts as tending inevitably to encourage the rehearsal or
coaching of witnesses and to increase the risk of fabrica¬
tion or contamination of evidence: R v. Arof (1993) May
26; Smith New Court Securities Ltd v. Scrimgeour Vicers
(Asset Managment) Ltd [1992] BCLC 1104, 119941 1/WLR

1271. 4H
While contact is no longer forbidden, “[a] barrister must not
rehearse, practice or coach a witness in relation to his evidence” or
“encourage a witness to give evidence which is untruthful or which
is not the whole truth.’”" One commentator suggests that the
stringent rules prohibiting barristers from coaching witnesses “ring
a bit hollow in civil cases” due to “meticulously crafted witness
statements” prepared by solicitors. ’1
A recent court of appeal opinion in a criminal case in the U.K.
discussed the difference between permissible witness training and
impermissible witness coaching and set forth specific guidelines for
witness training.32

R v. MOMODOU
[2005] 2 All E.R. 571.
.
Court of Appeal (Criminal Division)
CA (Crim Div)
Before: Lord Justice Judge Deputy Chief Justice
of England and Wales
Mrs Justice Dobbs and Sir Michael Wright

49. Bar Council of England and

Wales, Written Standards for the Con¬ na ca th Pr St
duct of Professional Work, Standards l se e o an
Co , of th fUens Ki da Ba
6.2.1, 6.2.2, 6.2.4 & 6.2.5, available at mm e isti ng r r
Co it ha ad e
th odn “s do th ds is
http://www.barcouncil.org.uk (last visit¬ u
cu nc ee t sno auis v a a i
t,onl thnc m ma re e
ed Jan. 19. 2007). rr il thed ese tt
en or e er
50. Bar Council of England and in rtel to ciit pr s “it
wo lyatbe pr v y
itlo pr c o on th ba
Wales, Code of Conduct, Rules 705(a) & u u o e e ¬
si ld th ion th de ge pcre ed se in
(b). s at e nt ne iend in t
Mo al arpa to cici gs pr
51. Wydick, supra note 45, at 7 mo so pll plvi ,” oc
in d Pr yS els C ee
te gs oBau oCfo of En an t an omWma d¬
(“[Sjtarting in 1995, the witness state¬
ment is used at trial in lieu of direct e, .” r eusn g d a d ilte
Wh Gu onscii Wi lPar r H¬s, 11
examination, unless the iltrial
e judge or¬ id
(O a 20
oln tn
aalv es
nedp ds
aatr ht
ders otherwise; the witnessR v simply gets c n 0 ai s a t
.M ba t. ce 5) la(la vi ti p:J/a 11
in the witness box, adopts the om written 20 rc , b s si on /n. ,
witness statement as his testimony,od and 07 o le t te , ww
).un d w.
ou ci
is then cross-examined.”). is l.
ac or
ri g.
mi uk
¬
162 DUTIES TO THE COURT AND OTHERS Ch. 8

Witness training (coaching) ...

61. There is a dramatic distinction between witness training or

coaching, and witness familiarisation. Training or coaching for
witnesses in criminal proceedings (whether
for prosecution or de¬
fence) is not permitted. This is the logical consequence of well-
known principle that discussions between witnesses should not take
place, and that the statements and proofs of one witness should not
be disclosed to any other witness. (See Richardson [1971] CAR 244;
Arif, unreported, 22nd June 1993; Skinner [1994] 99 CAR 212; and
Shaw [2002] EWCA Crim 3004.) The witness should give his or her
own evidence, so far as practicable uninfluenced by what anyone
else has said, whether in formal discussions or informal conversa¬
tions. The rule reduces, indeed hopefully avoids any possibility, that
one witness may tailor his evidence in the light of what anyone else
said, and equally, avoids any unfounded perception that he may
have done so. These risks are inherent in witness training. Even if
the training takes place one-to-one with someone completely re¬
mote from the facts of the case itself, the witness may come, even
unconsciously, to appreciate which aspects of his evidence are
perhaps not quite consistent with what others are saying, or indeed
not quite what is required of him. An honest witness may alter the
emphasis of his evidence to accommodate what he thinks may be a
different, more accurate, or simply better remembered perception
of events. A dishonest witness will very rapidly calculate how his
testimony may be “improved”. These dangers are present in one-
to-one witness training. Where however the witness is jointly
trained with other witnesses to the same events, the dangers
dramatically increase. Recollections change. Memories are contami¬
nated. Witnesses may bring their respective accounts into what
they believe to be better alignment with others. They may be
encouraged to do so, consciously or unconsciously. They may col¬
lude deliberately. They may be inadvertently contaminated. Wheth¬
er deliberately or inadvertently, the evidence may no longer be
their own. Although none of this is inevitable, the risk that training
or coaching may adversely affect the accuracy of the evidence of the
individual witness is constant. So we repeat, witness training for
criminal trials is prohibited.

62. This principle does not preclude pre-trial arrangements to

familiarise witness with the layout of the court, the likely sequence
of events when the witness is giving evidence, and a balanced
appraisal of the different responsibilities of the various partici¬
pants. Indeed such arrangements, usually in the form of a pre-trial
Sec. B DUTIES TO OTHERS 163

visit to the court, are generally to be welcomed. Witnesses should

not be disadvantaged by ignorance of the process, nor when they
come to give evidence, taken by surprise at the way it works. None
of this however involves discussions about proposed or intended
evidence. Sensible preparation for the experience of giving evidence,
which assists the witness to give of his or her best at the forthcom¬
ing trial is permissible. Such experience can also be provided bv out
of court familiarisation techniques. The process may improve the
manner in which the witness gives evidence by, for example,
reducing the nervous tension arising from inexperience of the
process. Nevertheless the evidence remains the witness’s own un¬
contaminated evidence. Equally, the principle does not prohibit
training of expert and similar witnesses in, for example, the tech¬
nique of giving comprehensive evidence of a specialist kind to a
jury, both during evidence-in-chief and in cross-examination, and,
another example, developing the ability to resist the inevitable
pressure of going further in evidence than matters covered by the
witnesses’ specific expertise. The critical feature of training of this
kind is that it should not be arranged in the context of nor related
to any forthcoming trial, and it can therefore have no impact
whatever on it.

63. In the context of an anticipated criminal trial, if arrangements

are made for witness familiarisation by outside agencies, not, for
example, that routinely performed by or through the Witness
Service, the following broad guidance should be followed. In rela¬
tion to prosecution witnesses, the Crown Prosecution Service
should be informed in advance of any proposal for familiarisation. If
appropriate after obtaining police input, the Crown Prosecution
Service should be invited to comment in advance on the proposals.
If relevant information comes to the police, the police should inform
the Crown Prosecution Service. The proposals for the intended
familiarisation programme should be reduced into writing, rather
than left to informal conversations. If, having examined them, the
Crown Prosecution Service suggests that the programme may be
breaching the permitted limits, it should be amended. If the defence
engages in the process, it would in our judgment be extremely wise
for counsel’s advice to be sought, again in advance, and again with
written information about the nature and extent of the training. In
any event, it is in our judgment a matter of professional duty on
counsel and solicitors to ensure that the trial judge is informed of
any familiarisation process organised by the defence using outside
agencies, and it will follow that the Crown Prosecution Service will
be made aware of what has happened.
64. This familiarisation process should normally be supervised or
conducted by a solicitor or barrister, or someone who is responsible
to a solicitor or barrister with experience of the criminal justice
164 DUTIES TO THE COURT AND OTHERS Ch. 8

process, and preferably by an organisation accredited for the pur¬

pose by the Bar Council and Law Society. None of those involved
should have any personal knowledge of the matters in issue. Rec¬
ords should be maintained of all those present and the identity of
those responsible for the familiarisation process, whenever it takes
place. The programme should be retained, together with all the
written material (or appropriate copies) used during the familiarisa¬
tion sessions. None of the material should bear any similarity
whatever to the issues in the criminal proceedings to be attended
by the witnesses, and nothing in it should play on or trigger the
witness’s recollection of events. As already indicated, the document
quoted in paragraph 41, if used, would have been utterly flawed. If
discussion of the instant criminal proceedings begins, as it almost
inevitably will, it must be stopped. And advice given about precisely
why it is impermissible, with a warning against the danger of
evidence contamination and the risk that the course of justice may
be perverted. Note should be made if and when any such warning is
given.
65. All documents used in the process should be retained, and if
relevant to prosecution witnesses, handed to the Crown Prosecu¬
tion Service as a matter of course, and in relation to defence
witnesses, produced to the court. None should be destroyed. It
should be a matter of professional obligation for barristers and
solicitors involved in these processes, or indeed the trial itself, to
see that this guidance is followed.
^

Whether in a civil or a criminal case, once a witness has begun

to give evidence until the conclusion of the witness’s testimony, a

barrister is prohibited from communicating directly or indirectly
with the witness without the consent of opposing counsel or the
court.53 The Canadian rules, which specifically allow a lawyer to
“seek information from any potential witness,’’ also note a general
prohibition on communicating with the witness after the witness
has begun to testify: “Generally, it is considered improper for
counsel who called a witness to communicate with that witness
without leave of the court while such witness is under cross-
examination. ”'w A footnote to this Guiding Principle quotes more
detailed Ontario local rules regarding communications with a wit¬
ness, including that “between completion of cross-examination and
commencement of reexamination, the lawyer who is going to re¬
examine the witness ought not to have discussion about evidence
that will be dealt with on re-examination.”55 This prohibition on
53. Bar Council of England and 54. Canadian Bar Association, Code

Wales, Code of Conduct, Rule 705(c). of Professional Conduct, ch. IX, cmt. 18.
55. Canadian Bar Association, Code
Sec. B DUTIES TO OTHERS 165

preparation of a witness for redirect examination, while within the

discretion of a U.S. trial judge, is not the norm in the U.S. and not
generally the subject of ethical rules.

ity
3. Duty to Other Attorneys — Professionalism and Civil¬

Ethical rules in U.S. jurisdictions generally make limited refer¬

ence to a lawyer’s relationships with other lawyers. The ethical
codes of some European jurisdictions devote much more attention
to this topic. The Ethical Code for Italian Lawyers provides as a
general proposition that “[a] lawyer’s contacts with other lawyers
must always be based on honesty and integrity. It goes on to
devote an entire chapter and thirteen articles of its code to “Con¬
tacts with Other Lawyers,” addressing in separate articles: contacts
with other lawyers in general; contacts with other lawyers and the
duty to defend a client before the court; contacts with the Bar
Council; contacts with colleagues in the law firm; contacts with
trainees; the duty to correspond with other lawyers; the prohibition
against revealing correspondence among lawyers; information con¬
cerning another lawyer; the obligation to pay for services provided
by another lawyer; the obligation to instruct another lawyer and to
keep him informed; replacement of counsel; and the responsibility
of collaborators, substitutes and associates.1'
The ethical rules of most jurisdictions include general princi¬
ples regarding the conduct of relationships with other counsel. The
Rules of the National Bar Council of France provide, for example,
that “the relations of lawyers with lawyers acting for the opposing
party shall be based on principles of courtesy, fairness and collegial-
ity that govern the legal profession.”’* The Code of Professional
Conduct for Defence Counsel for the international tribunal in
Rwanda provides that:
Counsel must act fairly, honestly and courteously towards
all persons with whom they have professional contact,
namely other Counsel, their clients, Judges, members of
the Office of the Prosecutor and Registry staff. Counsel
shall recognize all other Counsel appearing or acting in
relation to the proceedings before the Tribunal as profes¬
sional colleagues.59
of Professional Conduct, ch. IX, cmt. 18, 58. National Bar Council of France,
n.33, quoting Ontario Bar Association, Harmonised Practice Rules, art. 5.4.
Rule of Professional Conduct 4.04(e).
59. International Criminal Tribunal
56. Ethical Code for Italian Lawyers,
art. 22. for Rwanda, Code of Professional Con¬
duct for Defence Counsel, art. 17(1).
57. Ethical Code for Italian Lawyers,
art. 22-34.
166 DUTIES TO THE COURT AND OTHERS Ch. 8

The CCBE Code requires a lawyer to “recognise all other

lawyers of Member States as professional colleagues and act fairly
and courteously towards them.”6" It further declares that “[t]he
corporate spirit of the profession requires a relationship of trust
and cooperation between lawyers for the benefit of their clients and
in order to avoid unnecessary litigation and other behaviour harm¬
ful to the reputation of the profession.”61 It warns, however, that
these principles “can . . . never justify setting the interests of the
profession against those of the client.”62
The Japanese Federation of Bar Associations provides general
principles for relationships of respect and civility among attorneys.
Attorneys are directed to “respect honor and trust with another
attorney,” not to “entrap” another attorney with unfair business
practices and to “attempt to settle any disputes with other legal
professionals amicably through mutual consultation or the dispute
mediation committee of a bar association.”6'1 While nothing pre¬
vents a U.S. lawyer from providing a “second opinion” to a party
represented by another lawyer, Japanese lawyers are forbidden
from “ attempting] to intervene in a matter which another legal
professional has already taken.”61
Some U.S. jurisdictions have recently added ethical guidelines
or rules of court on “civility” or “professionalism.”6’ An Appendix
to the Canadian Bar Code sets forth “Principles of Civility for
Advocates,” which include detailed guidelines for relations with
opposing counsel, communications with others, trial conduct and
counsel’s relations with the judiciary. The Preamble to the Princi¬
ples explains:
Civility amongst those entrusted with the administration
of justice is central to its effectiveness and to the public’s
confidence in that system. Civility ensures matters before
the Court are resolved in an orderly way and helps pre¬
serve the role of Counsel in the justice system as an
honourable one.

Litigation, however, whether before a Court or tribunal is

not a “tea party”. Counsel are bound to vigorously ad-
60. CCBE Rule 5.1.2. Federal Judicial Circuit, reprinted at
61. CCBE Rule 5.1.1. 143 F.R.D. 441 (1992), adopted in Sev¬
enth Judicial Circuit Court of Appeals,
62. Id.
Standards for Professional Conduct,
63. Japanese Federation of Bar Asso¬ Lawyers Duties to the Court, Rule 1
ciations, Basic Rules on the Duties of (“We will speak and write civilly and
Practicing Attorneys, art. 70, 71 and 73. respectfully in all communications with
64. Japanese Federation of Bar Asso¬ the court.”); Center of Professional Re¬
ciations, Basic Rules on the Duties of sponsibility, http://www.abanet.org/cpr/
Practicing Attorneys, art. 72. professionalisnVprofcodes.html (listing
65. See, e.g., Final Report of the numerous U.S. jurisdictions that have
Committee on Civility of the Seventh adopted codes of civility).
Sec. B DUTIES TO OTHERS 167

vance their client’s case, fairly and honourably. According¬

ly, Counsel’s role is openly and necessarily partisan and
nothing which follows is intended to undermine those
principles. But Counsel can disagree, even vigorously,
without being disagreeable. Whether among Counsel, or
before the Courts, antagonistic or acrimonious behaviour is
not conducive to effective advocacy. Rather civility is the
hallmark of our best Counsel.66

4. Duty to Others — Non-Discrimination

Ethical codes in U.S. jurisdictions do not generally address a

lawyer’s legal duties with regards to compliance with civil rights
standards and laws. The Canadian Code of Professional Conduct,

however, devotes an entire chapter to the lawyer’s duties of non¬

discrimination. The non-discrimination rule provides comprehen¬
sively that:
The lawyer shall respect the requirements of human rights
and constitutional laws in force in Canada, and in its
provinces and territories. Except where differential treat¬
ment is permitted by law, the lawyer shall not discriminate
with respect to partnership or professional employment of
other lawyers, articled students or any other person, or in
professional dealings with other members of the profession
or any other person on grounds including, but not limited
to, an individual’s ancestry, colour, perceived race, nation¬
ality, national origin, ethnic background or origin, lan¬
guage, religion, creed or religious belief, religious associa¬
tion or activities, age, sex, gender, physical characteristics,
pregnancy, sexual orientation, marital or family status,
source of income, political belief, association or activity, or

physical or mental disability.6'

The commentary to this rule provides detailed guidance on the duty
of non-discrimination, on discrimination in employment, on the
duty of accommodation, and on sexual harassment and harassment
as forms of discrimination.68
66. Canadian Bar Association, Code to September 7, 1990, at 2, 10, http://
of Conduct, Appendix — Principles of Civ¬ www.ohchr.org/english/lawdawyers.htm
ility for Advocates. (last visited Jan. 11, 2006) (requiring
67. Canadian Bar Association, Code governments to ensure no discrimina¬
tion in regards to equal access to justice
of Conduct, ch. XX (“Non-Discrimina¬
tion”). and to practicing in the legal profession,
68. Id.; see also Basic Principles on except that a requirement that a lawyer
the Role of Lawyers, Adopted by the must be a national of the country con¬
Eighth United Nations Congress on the cerned shall not be considered discrimi¬
Prevention of Crime and the Treatment natory).
of Offenders, Havana, Cuba, August 27
168 DUTIES TO THE COURT AND OTHERS Ch. 8

Discussion Questions:

8-7: What values are promoted or protected by the “No Contact”

rule? What values or interests are hindered?

8-8: What officers, agents or employees of a corporation or other

organization should be covered by the “No Contact” rule?
Why?

8-9: Should a trial lawyer be allowed to prepare a witness by

discussing the evidence with the witness and helping the
witness to present truthful testimony in a way most helpful
to the lawyer’s client? Why or why not? Does such prepara¬
tion impair or promote justice? If preparation should be
allowed, where should the line be drawn between permissible
preparation and impermissible coaching?

8-10: Does the difference in approach to contacts with witnesses

between the U.S. and the U.K. reflect a different concept of
the role of the trial lawyer or the trial lawyer’s relationship
with the court? If so, what is the nature of the difference?

8-11: Why might the ethical rules of some European jurisdictions

pay more attention to the relationships among counsel than
do U.S. rules? Does this reflect any differences between the
role of lawyers in these jurisdictions and the role of lawyers
in the U.S.?

8-12: Is civility among lawyers important to the fair and efficient

function of a justice system? Is a lack of civility ever appro¬
priate or necessary? If civility is necessary or at least desir¬
able, how can a legal system best go about promoting it? Do
ethical guidelines or rules aimed at civility make a difference
by themselves? Should they be coupled with significant pen¬
alties for uncivil or unprofessional conduct by lawyers?

8-13: Should an ethical code for lawyers include principles of non¬

discrimination? Should lawyers have duties of non-discrimi¬
nation as an ethical matter beyond what the law may other¬
wise require? If an ethical code merely restates what the law
requires with regard to non-discrimination, does including
non-discrimination principles in the ethical code still serve a

purpose?
 Chapter 9

ADVERTISING AND
SOLICITATION

In order for a buyer and a seller to engage in any business

transaction, the buyer must first become aware of the seller’s
existence and relevant product information. Sellers traditionally
initiate this contact by soliciting and advertising to potential cus¬
tomers. In the legal context, lawyers achieve this contact with those
who need legal services in a variety of ways. First, word of mouth
and recommendations from former clients to potential clients serve
this purpose.1 Second, “lawyers who represent prominent, institu¬
tional clients, such as banks and insurance companies have in many
places ‘found’ their clients at social functions of country club
events. Some jokingly say that such lawyers advertise for clients on
the golf course.”2 Finally, everyday clients, who cannot find lawyers
in the above ways, rely on advertisements in media including
newspapers, phonebooks, billboards, and television.3 Commentators
have debated whether regulators should restrict these three activi¬
ties.
Opponents of strict regulation argue that advertising allows
equal access to legal assistance for all social groups and allows
lawyers to most efficiently fulfill legal needs.4 On the other hand,
supporters of strict regulation argue that advertisement brings the
“profession down to the level of ordinary trade” by reducing “the
profession to a mere business complete with catchy ad jingles and
slogans.”'’ Because the ultimate resolution of these competing
points of view ultimately depends on normative values that often

1. James E. Moliterno, Materials for 4. See Deborah Rhode, Access to Jus-

a Comparative Lawyer Ethics Course for tice: Connecting Principles to Practice,
Serbian Law Schools. (USAID. NCSC 17 Geo. J. Legal Ethics 369 (2004).
2006)(Serbian Materials).
5. Serbian Materials.
2 jci
3. Id.

169
 170 ADVERTISING AND SOLICITATION Ch. 9

vary from nation to nation, one should not find it surprising that
nations have restricted advertising and solicitation by lawyers to
differing degrees. The following discussion states the status of the
ethics rules governing client-getting activities in various nations
while attempting to locate common themes.

A. UNITED STATES
Lawyers in the United States have long desired to advertise
their services to potential clients. Even Abraham Lincoln, a cher¬
ished American leader, attracted clients to his practice by running
an ad in the August 10, 1838 Sangamo Journal stating “STUART
& LINCOLN, Attorneys and Counsellors at Law, will practice,
conjointly, in the Courts of this Judicial Circuit — Office No. 4

ABA Canons of Ethics (and some later amendments) in 1908, state

bar associations imposed few restrictions on lawyer advertising.
Instead, the limits on advertising were largely informal rules of
etiquette rather than enforceable rules of ethics. In 1908, however,
ld.”6 7 8 * *
bar associations in the United States began to forbid advertising by
attorneys and would continue to forbid it for most of the 20"'
century.' The Canons of Professional Ethics promulgated in 1908
(and some amendments in the following 20 years) limited attorney
Hoffman’s advertising to such an extent that attorneys could only distribute
printed business cards.” These restrictions would remain in place
Row,
through the 1969 American Bar Association adoption of the Model
upstairs.
Code of Professional Responsibility.

The Model Code contained disciplinary rules prohibiting adver¬

tising and solicitation Prior
that paralleled the rules in the Canons.” Most
to
notably, these rules prevented the a lawyer from using “any form of
adoption
public communication” to disseminate “professionally self-laudato¬
of
ry statements calculated to attract lay clients.”1" The Model Code
the
also limited the extent to which a lawyer could use letterhead or
business cards to further his or her practice.11 To restrict solicita¬
tion, the Model Code prohibited a lawyer from accepting employ¬
ment resulting from unsolicited advice that the lawyer has given a
layman.12 These restrictions on attorney advertising and solicita¬
tion, combined with others in the Model Code, gave rise to the issue

Lori B. An¬ 9. Lawyer Advertising, Louise L.

6. Birth of a Salesman,
drews, page 1. Hill, page 45.
7. http://www.firstamendmentcenter. 10. Model Code (1969), DR 2-101.
org/speech/advertising/topic.aspx?topic=
attorney ads. 11. Model Code (1969), DR 2-102.
8. http://www.firstamendmentcenter. 12. Model Code (1969), DR 2-104.
org/speech/advertising/topic.aspx?topic=
attorney _ads.
Sec. A UNITED STATES 171

of whether such restrictions violate the First Amendment right to

freedom of speech.

Prior to the release of the Model Code, the Supreme Court of

the United States had long upheld the legislature’s ability to
regulate commercial advertising to a certain extent. In Valentine u.
Chrestensen, 316 U.S. 52 (1942), the Court considered whether
application of an ordinance that prohibited the distribution in the
streets of commercial and business advertising matter constituted
“an unconstitutional abridgment of the freedom of the press and of
speech.”1" In reaching its opinion, the Court reasoned that “[tjhe
question is not whether the legislative body may interfere with the
harmless pursuit of a lawful business, but whether it must permit
such pursuit by what it deems an undesirable invasion of, or
interference with, the full and free use of the highways by the
people in fulfillment of the public use to which streets are dedicat¬
ed.”11 Since the individual in this instance had attempted to use the
streets of New York by distributing commercial advertising, the
Court concluded that “the Constitution imposes no such restraint
on government as respects purely commercial advertising.” 10 The
Court, however, would later begin to give more deference to First
Amendment arguments.

Approximately thirty years after reaching its decision in Valen¬

tine , the Court would begin to reverse its standing on commercial
speech. The Court, in Virginia State Bd. of Pharmacy v. Virginia
Citizens Consumer Council, Inc., found unconstitutional a Virginia
law that forbade pharmacists from advertising prescription drug
prices. The majority justified its holding by stating that “the free
flow of commercial information is indispensable.” Furthermore,
“[ajs to the particular consumer’s interest in the free flow of
commercial information, that interest may be as keen, if not keener
by far, than his interest in the day’s most urgent political debate.”
It would not take long for the Court to find this reasoning applica¬
ble to instances of attorney advertising.

One year later, in Bates u. State Bar of Arizona, two Arizona

attorneys had been disciplined by the Arizona State Bar when they
placed an ad in a newspaper that quoted the prices they charged for
certain legal services. The president of the Arizona bar filed a
complaint alleging that this advertisement violated a rule that
provided: “a lawyer shall not publicize himself, or his partner, or
associate, or any other lawyer affiliated with him or his firm, as a
lawyer through newspaper or magazine advertisements, radio or

13. Valentine u. Chrestensen , 316 15. Valentine v. Chrestensen.

U.S. 52, 54 (1942).
14. Valentine v. Chrestensen, at 54-
55.
172 ADVERTISING AND SOLICITATION Ch. 9

television announcements, display advertisements in the city or

telephone directories or other means of commercial publicity, nor
shall he authorize or permit others to do so in his behalf.” Similar
to its reasoning in Virginia State Bd. Of Pharmacy u. Virginia
Citizens Consumer Council, Inc., the Court reasoned that “[l]ike
the Virginia statutes, the disciplinary rule serves to inhibit the free
flow of commercial information and to keep the public in igno¬
rance” and “the prohibition of advertising serves only to restrict
the information that flows to consumers.” Accordingly, the Su¬
preme Court found in favor of the lawyer-advertisers.
The Court, however, did not approve of all communications
with consumers by attorneys. In Bates the Court still noted that
deceptive or misleading advertising by attorneys remains unprotect¬
ed by the freedom of speech afforded by the First Amendment. Two
years after Bates, the Court would also uphold a restriction on
attorney in-person solicitation in Ohralik v. Ohio State Bar Assn.
The Court differentiated solicitation from newspaper ads by reason¬
ing that “[ujnlike a public advertisement which simply provides
information and leaves the recipient free to act upon it or not, in-
person solicitation may exert pressure and often demands an imme¬
diate response, without providing an opportunity for comparison or
reflection.”
The current American Bar Association’s Model Rules of Profes¬
sional Conduct adopted in 1983 reflect the less restrictive approach
taken by the court in Bates and subsequent cases. Most notably,
Rule 7.2(a) permits lawyers to advertise through “written, recorded
or electronic communication, including public media.”"’ Rule 7.2(b),
however, generally prohibits a lawyer from paying a referral fee to
another person.17 Several other technical restrictions also limit a
lawyer’s otherwise broad discretion to advertise.
First and foremost, Rule 7.1 prohibits a lawyer from making “a
false or misleading communication about the lawyer or the lawyer’s
services.” Communications are considered false or misleading when
they include a “material misrepresentation of fact or law, or omit a
fact necessary to make the statement considered as a whole not
materially misleading.” This “Rule governs all communications
about lawyers’ services.”18 As discussed later, similar provisions
prohibiting false statements exist in the ethics codes of almost
every other country.
Second, Rule 7.3 restricts solicitation by lawyers. Specifically, it
prohibits a lawyer from making direct contact with a prospective
client when the lawyer’s pecuniary gain is a significant motive for
the lawyer’s doing so. The lawyer, however, may directly contact a
16. ABA Model Rule 7.2(a). 18. Rule 7.1, Comment 1.
17. ABA Model Rule 7.2(b).
Sec. A UNITED STATES 173

prospective client when the person contacted is a lawyer or “has a

family, close personal, or prior professional relationship with the
lawyer.”19 As will be discussed later, rules prohibiting solicitation
exist throughout a number of different nations.

Third, Rule 7.4(d) prevents a lawyer from stating or implying

that he or she is certified as a specialist in a particular field of law,
unless “the lawyer has been certified as a specialist by an organiza¬
tion that has been approved by an appropriate state authority or
that has been accredited by the [ABA|; and the name of the

certifying organization is clearly identified in the communication.”""

Finally, Rule 7.5 requires a lawyer to not use a firm name, letter
head, or any other professional designation that is false or mislead¬
ing. The ABA Model Rules appears to be the most detailed and
specific set of rules of those examined. These two rules act as an
explicit, specific extension of Rule 7.1’s prohibition against false
and misleading statements.

While issues surrounding attorney advertising have been well

litigated, new challenges continue to arise. For instance, the New
Jersey Supreme Court’s Committee on Attorney Advertising recent¬
ly addressed the issue of “whether advertisements in any medium
of distribution publicizing certain New Jersey lawyers as ‘Super
Lawyers’ or ‘Best Lawyers in America’ violate the prohibition
against advertisements that are comparative in nature, RPC
7.1(a)(3), or that are likely to create an unjustified expectation
about results, RPC 7.1(a)(2).”21 It ruled that attorneys could no
longer advertise regarding either their designation as “Super Law¬
yers” or their inclusion in “Best Lawyers in America”.22 The
committee reasoned that “ [t]his simplistic use of a media-generated
sound bite title clearly has the capacity to materially mislead the
public.”23 Because of the potentially misleading nature of these
designations, they could not help consumers make informed deci¬
sions. Some courts have come to the contrary conclusion about the
same publication.

Also, in the recently decided Fla. Bar u. Pape, the Florida

Supreme Court considered whether a television commercial featur¬
ing a pit bull wearing a spiked collar and a telephone number
ending in PIT-BLiLL violated the Rules of Professional Conduct.21
The court concluded that the attorneys had violated Rules Regulat¬
ing the Florida Bar 4-7. 2(b)(3) and 4-7. 2(b)(4), which govern attor-

19. ABA Model Rule 7.3. 23. http://www.judiciary.state.nj.us/

20. ABA Model Rule 7.4. notices/ethics/CAA_Opinion39.pdf
21. http://www.judiciary.state.nj.us/ 24. Florida Bar v. Pape, 918 So.2d
notices/ethics/CAA_Opinion39.pdf 240 241-42 (Fla 2005)
22. http://www.judiciary.state.nj.us/
notices/ethics/CAA_Opinion39.pdf
174 ADVERTISING AND SOLICITATION Ch. 9

ney advertising, by using both the image of the pit bull and the
phone number."’ Furthermore, “[l]awyer advertising enjoys First
Amendment protection only to the extent that it provides accurate
factual information that can be objectively verified. This thread
runs throughout the pertinent United State Supreme Court prece¬
dent. ''' Because the devices in use by these attorneys do not assist
the public in making an informed decision, the court ruled that the
First Amendment did not prevent the enforcement of sanctions
based on violations of these rules.2. Thus, in this instance the First
Amendment did not limit the regulations imposed by the Florida
Bar Association.

It would seem that because the rationale behind restricting the

client-getting activities of attorneys is largely based on normative
values, new issues will continue to arise as society’s perception of
what degrades or demeans a profession changes. These issues,
however, are not unique to the United States, but the presence of a
robust speech right makes analysis of such issues in the U.S. quite
different. In the U.S., the regulation of client getting is the most
“constitutionalized” of all areas of lawyer regulation.

B. JAPAN
In November 2004, the Japan Federation of Bar Associations
(“JFBA”) adopted the Basic Regulations for Attorneys’ Duties
(Bengoshi shokumu kihon kitei).2S These regulations govern the
conduct of Japanese attorneys (bengoshi ) much in the same way
that the Model Rules of Professional Conduct regulate lawyers in
the United States. While previous ethics codes in Japan were only
adopted as declarations, the Basic Regulations formed legally bind¬
ing regulations."’ Articles 9, 10 and 13 of this code govern general
client-getting activities.311 The restrictions on these activities in
Japan are similar in nature to the limitations imposed in the
United States by the Model Rules of Professional Conduct.
Article 9 of the Basic Regulations restricts the advertising and
publicity activities conducted by lawyers. Specifically, it prohibits
an attorney from providing “information that is false or misleading
in advertising his or her services.”31 Article 9 also states that “[a]n
25. Id. ly useful translation of the new Japa¬
26. Id. at 247. nese ethics code.
27. Id. at 242. 29. Kyoko Ishida, Ethical Standards
28. Kyoko Ishida, Ethical Standards of Japanese Lawyers: Translation of the
of Japanese Lawyers: Translation of the Ethics Codes for Six Categories of Legal
Ethics Codes for Six Categories of Legal Service Providers.
Service Providers, 14 Pacific Rim Law and 30. Id.
Policy Journal 383, 385-386 (2005).
31. Id.
This journal article provides an extreme¬
 175
Sec. C LITHUANIA

attorney shall not advertise in a manner which would degrade his

or her dignity.”12 These provisions are similar to those found in
many other nations in that they prevent a lawyer from providing
false or misleading information. They differ from those of other
nations, however, in that their application also requires an explicit
test based on normative values by focusing on dignity.
Article 10 of the Basic Regulations prevents an attorney from
soliciting future clients. Specifically, it states that “lain attorney
shall not solicit a prospective client or instigate a matter for an
unwarranted purpose or in a manner which would degrade his or
her dignity. ”:w Again, this provision seems quite similar to other
prohibitions on solicitation except, like Article 9, it involves apply¬
ing an extremely subjective test to determine whether an exception
to the general rule prohibiting solicitation exists.
Finally, Article 13 of the Basic Regulations prevents a lawyer
from engaging in any sort of pay for referrals activity.11 Specifically,
it provides that “1. An attorney shall not pay for any fee or any
other compensation for the referral of a client. [And] 2. An attorney
shall not receive any fee or any other compensation for client
referral.”35 This bar on receiving compensation mimics those seen
in other countries such as the United States.

C. LITHUANIA

Article 12 of Lithuania’s Code of Professional Ethics for Law¬

yers states that “[tjhe lawyers may not pay fee, commission or any
other remuneration to anybody for the recommendation, assign¬
ment of the client to him.”36 This provision mimics the general
prohibition on pay-for-referral activity that has been seen in other
nations. Also, Article 22 states that “[a] lawyer must explain to the
client that he will seek by legal means and in legal ways for
adoption of the judgement or decision by the court as favourable as
possible, however he cannot guarantee the outcome of the case.”3'
In other words, this prohibition prohibits the use of false state¬
ments of optimism by lawyer to potential clients. Finally, Article 35
acts as a catch-all, providing that “[i|n cases when the lawyer’s
conduct in the professional activities is not regulated by laws, the
Statute of the Lithuanian Bar or this Code, he must observe the
traditions existing in the lawyers’ practice the content whereof
conforms to the general principles of ethics and morals.”3* This
provision is similar to some of the regulations seen in Japan.

32. Id. 36. Code of Professional Ethics for

.... t i Lawyers , http://www.hg.org/redir.asp?
url= http://www.advoco.lt
34. Id. at 391. 37. [rf
35. Id. .38. Id.
176 ADVERTISING AND SOLICITATION Ch. 9

D. FINLAND

Rule 5 of Finland’s Rules of proper professional conduct for

advocates states that “[a] 11 communications from an advocate shall
be proper and without reproach with respect both to content and
form.”'’ This seems to echo previous rules visited earlier that
prohibit fraudulent behavior in advertising. Also similarly to previ¬
ously mentioned rules, Rule 6 of the Rules states “[a]n advocate
may not give nor promise to anyone part of his fee or other
remuneration for obtaining or procuring assignments.”40 Once
again a lawyer cannot pay for referrals.

E. EUROPEAN UNION GENERALLY

The legal professions in Europe have traditionally looked down

upon or prohibited advertising by lawyers.11 The CCBE Code re¬
cently adopted by the bars of eighteen Member States, however,
permits advertising by lawyers.12 “As a result, many EU Member
States abandoned their traditional rules prohibiting lawyer adver¬
tising in favor of permitting some form of advertising by lawyers.”11
Despite this common motivation for change, “publicity rules pro¬
mulgated by the individual bars and Law Societies of the EU

Member States vary considerably both in breadth and scope.”44 In

general though, most Member States now allow advertising by
lawyers to inform the public about the availability of legal services
but forbid most face-to-face solicitation.43
In contrast to the more detailed ABA Model Rules governing
advertising and solicitation by lawyers, the CCBE Code offers much
simpler and seemingly
less restrictive rules governing personal
publicity by lawyers. Rules 2.6.1 and 2.6.2 of the CCBE Code
govern personal publicity by lawyers. These rules permit personal
publicity by a lawyer “in any form of media” so long as the
“information is accurate and not misleading, and respectful of the
obligation of confidentiality and other core values of the profes¬
sion.”40 Similarly to the ABA Model Rules of Professional Conduct,

39. Rules of proper professional arizona.edu/Journals/AJICL/AJICL2003/

conduct for advocates, http://www.hg. Vol202/Hill.pdf
org/redir.asp?url = http://www.barassocia 42. Id.
tion.fi
43. Id.
40. Id.
44. Id. at 1-2.
41. Louise L. Hill, Publicity Rules of
45. Id. at 2.
the Legal Professions within the United
46. CCBE Code 2.6.1 and 2.6.2.
Kingdom, page 1, http://www.law.
Sec. E EUROPEAN UNION GENERALLY 177

Rules 5.4.1 and 5.4.2 of the CCBE Code prohibit lawyers from
either accepting or paying anyone a referral fee.1.
Note that this set of rules somewhat conflicts with the research
provided in the Serbian materials. The Serbian materials state that
the “CCBE Code makes no attempt to define what type of advertis¬
ing is acceptable in any given location, but merely stresses that
lawyers follow the rules of the host country, which vary widely
from country to country.”48 However, the CCBE Code clearly regu¬
lates advertising with the aforementioned rules. These rules apply
to the “cross-border activities of the lawyer within the European
Union and European Economic Area.”1” It is only when the lawyer
practices within his home country that the home country’s bar
rules apply.

The following chart summarizes the state of ethics rules gov¬

erning advertising in various European countries.

REQUIRE¬
MENTS OF ACCEPT¬ COMPARA¬
TIVE
ABLE
COUNTRY MESSAGE MODES PUBLICITY SOLICITA¬
TION

FRANCE Truthful, with Brochures, Not allowed

dignity and No approach¬
announce¬ ing clients for
taste — no spe¬ ments, phone individualized
cific client service.
books, pro¬
identification
motional ob¬
jects, sponsor¬
ship of legal
events, in¬
volvement in
seminars.
Strictly
ITALY Honest, while Brochures, Not mentioned
letterhead,
respecting dig¬
directories prohibited
nity, decorum,
and secrecy. (professional,
telephone, etc.)
and telematic
networks

Prohibited Prohibited,
SPAIN Not mentioned
Loyal, truth¬ whether direct
ful, respects
or indirect.
reveal Can’t
dignity.secrets,
compromise
independence
of lawyer, or

promise
results that
don’t entirely
depend on
lawyer.

47. CCBE Code 5.4.1 and 5.4.2. 49. CCBE Code, Rule 1.5.
48. Serbian materials.
178 ADVERTISING AND SOLICITATION Ch. 9

REQUIRE¬ ACCEPT¬ COMPARA¬

MENTS OF ABLE TIVE
COUNTRY MESSAGE MODES PUBLICITY SOLICITA¬
TION

GERMANY Indicate up to Newspapers, Not mentioned Not mentioned

5 areas of in¬ informational
letters,
terest (provid¬
ed lawyer has brochures

2 years experi¬
ence). Success
rates not

permitted.
Can’t say
SWEDEN Not mentioned Not mentioned
Factual, with¬
out discredit¬
you’re bet¬
ter/cheaper
ing the bar.
than others.

NORWAY Factually Not mentioned Not mentioned

All informa¬
correct/ not tion must be
misleading
objective and
benefit the
category of

lawyers.

ENGLAND & Barristers: Not Barristers: Dis- Barristers: Solicitors: No

WALES inaccurate or seminating No direct unsolicited
misleading rates, nature comparisons phonevisits
calls or
of services
Solicitors: Not offered, and
misleading and cases already
clearly
handled (with
expressed consent of
client)
charges.

SCOTLAND Decent and not Not mentioned No comparison Not“tout” for to

allowed
defamatory of fees or
claiming
work
superiority.

NORTHERN In addition to Not mentioned

Barristers: Ad- Any medium
IRELAND vertising not allowed (spe¬ not being pub¬
licized, fees are
permitted cifically includ¬
not allowed to
ing print and
Solicitors: Not electronic be compared to
media) others.
misleading and
no fees publi¬
cized. Clients
can be identi¬
fied with
consent.
“Personal
ESTONIA No advertising Superiority of Not mentioned
for “personal
publicity” does a particular
 179
Sec. E EUROPEAN UNION GENERALLY

ACCEPT
REQUIRE¬ COMPARA¬
MENTS OF ABLE TIVE
COUNTRY MESSAGE MODES PUBLICITY SOLICITA¬
TION

not include lawyer over

publicity”. dissemination others is
‘‘personal
of name, field, considered
location or
hours.

ROMANIA Done with Not mentioned

Openings or publicity”
dignity Not men¬
tioned, but not
change of of¬
included in the
fices, main ar¬
eas of activity areas in
column 2.
in professional
publications.

ARMENIA Truthful and Newspapers, Not mentioned Not mentioned

not misleading television and
electronic com¬
munications.

POLAND Everything Opening of Not mentioned Not mentioned

that fits in the
office, chang¬
areas under ing of address,
column two is name and area
allowed.
of practice.

SLOVAKIA Nothing on All forms Not mentioned

Can’t be un¬
billboards,
fair, non-factu- prohibited
television or
al, inappropri¬
ate or in bad radio. Daily
taste. press ads only
allowed when
regarding

opening
fice of of¬
or change
of address.

CROATIA Advertising Not specifically Specifically

Only a note
banned. about opening mentioned, but banned.
or address advertising is
change. banned.

While each nation in the above chart seems to have its own set of
advertising rules, one can assemble some common themes from an
examination of the chart. First, to the extent that advertising by
lawyers is allowed, the content of advertisements must be truthful
and dignified. Second, solicitation by lawyers is disallowed in in¬
stances where the issue is addressed. Third, approximately half of
the jurisdictions prohibit lawyers from comparing themselves to
other lawyers. Finally, almost all of these nations allow the dissemi¬
nation of advertising information by lawyers through print.
180 ADVERTISING AND SOLICITATION Ch. 9

Discussion Questions:

9-1: Assume that you are a member of a small, private law firm.
Lawyers in your firm engage in various practice activities.
Some do criminal defense work, some do property transfers.
Design a simple, lawful telephone directory advertisement for
the firm. Change it to meet the legal requirements of another
country. And another.

9-2: Dorde, sole practitioner, is in the courthouse lobby after

having filed some real estate transfer documents. He sees a
confused and tired woman holding a crying baby. Dorde
realizes that she needs help and offers it. She hands him a
Summons and Complaint, due to be answered today, demand¬
ing judgment for 2500 dinars based on a contract for the
purchase of a refrigerator from a local appliance and audio
equipment store. She asks Dorde in a broken English what
she is supposed to do. Dorde, whose mother was a Roma,
recognizes her first language responds to her in it. She
smiles. Dorde tells her what a Complaint is and asks her if
she has a lawyer. She says no, and he offers to represent her
and file an Answer on her behalf. Delighted, she agrees. They
return to his office where he prepares an Answer to be filed,
and she agrees to pay him 400 dinars to represent her in the
matter. Ordinarily Dorde would charge a good deal more for
such representation. He files the Answer the same day.

Should Dorde be subject to discipline for violating the

solicitation rules? What evil is avoided by prohibiting such
conduct? Is there some good that is being foregone in this
same prohibition?

9-3: Stage a debate with one or more colleagues. Does lawyer

advertising reduce professional dignity or is it an honorable
way of making lawyer services available to those who are
neither elite nor powerful?

9-4: Lawyer published a job advertisement for office personnel in

local magazine in a big ad that took a half of page, with
description of his law office and services that his practice
offers. In a jurisdiction that prohibits lawyer advertising, does
this publication violate the advertising prohibition?
 Chapter 10

JUDICIAL CONDUCT

A. INTRODUCTION AND IMPARTIALITY

Judges are impartial resolvers of disputes that are brought by
parties to the justice system. Judges are not meant to have loyalty
to a client, as lawyers do, but rather have loyalty to the justice
system itself and the proper application of the law to disputes.1
“The judge is an arbiter of facts and law for the resolution of
disputes and a highly visible symbol of government under the rule
of law.”2 Judges are impartial adjudicators of cases. A judge is “[a]
public official appointed or elected to hear and decide legal matters

in court.”5
In common law countries, judges are also lawmakers, in the
sense that their decisions have precedential value and serve to
govern the behavior of the public and not merely the parties to the
current dispute.1 The common understanding in civil law systems is
that courts do not create precedent and therefore do not make law.
But realities are changing in this regard, and now summaries of
decisions are becoming more commonly available in civil law court
systems. These summaries of decisions are being used by courts and
advocates alike in a modestly common law manner. In any event,
both common law and civil law judges are meant to be impartial as
a core value. Even in legal systems that follow a different adjudica¬
tion model, judges are meant to be impartial adjudicators of dis-
1. James E. Moliterno with U.S. 2. Model Code of Judicial Conduct
Pmbl. (2000).
Agency for Int’l Dev. & Nat’l Ctr. for
State Courts, Lawyer Ethics/Responsibil¬
ity of Lawyers: Serbian Standards with a 3. Black’s Law Dictionary 857 (8th ed.
2004).
Comparative View 1, 163 (June 2005)
(Materials for a course on Legal Ethics 4. Moliterno, supra note 1.
(Responsibilities of Lawyers) for Serbian
Law Schools) (on file with author).

181
182 JUDICIAL CONDUCT Ch. 10

putes.0 Impartiality is the common denominator of what it means to

be a judge.

Impartiality is the cornerstone of judicial decision-making.

When we think of the act of judging, we think of a neutral decision¬
maker, not subject to influence by forces outside the merits of the
dispute before the judge. Of course no judge is perfect, and all
judges carry their own personal traits and attitudes into the judg¬
ing process. But impartiality means freedom from influence beyond
the most basic and unavoidable tugs of a judge’s personality and
unconscious habits of mind.

All judges share this common impartiality characteristic. Even

in legal systems that follow a different adjudication models, judges
are meant to be impartial adjudicators of disputes. One of the
unique characteristics of the civil law, for example, is the responsi¬
bility it places on the judge in dispute resolution. Civil law coun¬
tries commonly do not use juries on the belief that the law is too
technical and refined to be properly understood by laymen. It is,
therefore, entirely the judge’s responsibility to determine both facts
and law.

In the inquisitorial system the judge plays an active role in

both the fact gathering and the fact-finding processes. Unlike
common law judges, civil law judges are generally not bound by
their own precedent. Since the doctrine of stare decisis advances
uniformity, certainty, and stability in the law, it contributes to
impartial decision-making by constraining judges from deciding
cases simply as they will. Instead, they must follow precedent. The
comparable limiting principle for civil law judges is the code.

B. INDEPENDENCE

To greater and lesser extents, we also think of judicial indepen¬

dence as a core judicial attribute. Judicial independence has come
to be regarded as a fundamental marker of a fair judiciary and to
maintaining the integrity and impartiality of the judicial process.
The guarantee of judicial independence is seen as imperative during
the selection process and throughout a judge’s professional career.h
In order to preserve the role of judges and support an objective
judicial system, the impartiality and independence of the judiciary
must be guaranteed by law and perceived by the public. It is

5. Id. at 182. Central European and Eurasian Law Ini-

TIATIVE: LEGISLATIVE ASSISTANCE AND Re
6. Explanatory Memorandum to Rec- search Program. Compilations of Interna-
ommendation No. R (1994) 12: On the tional Standards on Judicial Reform
Independence, Efficiency and Role of and Judicial Independence 29, 38 (Jan.
Judges, Council of Europe, (adopted by 2004), http://abanet.org/ceeli/areas/judi
Comm, of Ministers Oct. 13, 1994), in ciaLreform/compilation_jan04.pdf.
Sec. B INDEPENDENCE

important that a judge not only be impartial, the judge must be

seen by all as impartial.7 And yet, U.S. -style, article III judicial
18,‘I
independence is a rare commodity. Even in the U.S., the gold-
standard for judicial independence, state court judges and adminis¬
trative law judges have much less structural independence than do
article III judges.
If one attribute is of the cross-cutting essence of what it means
to be a judge, it is impartiality. But often, the idea of judicial
independence is conflated with impartiality. In reality, indepen¬
dence is not a necessary attribute of being a judge, but it substan¬
tially enhances the opportunities for judicial impartiality, especially
when the interests of the state or the current government are
implicated in the particular case over which the judge is presiding.
By creating a system in which judges have little reliance on govern¬
ment approval of judicial actions, judges can maintain their impar¬
tiality from interference by government pressure or influence.
One major process attribute designed to foster impartiality is
the prohibition on ex parte communications. Ex parte communica¬
tions are any communications with either party to a case, concern¬
ing the case, made in the absence of the other party. The basic
concepts of fair hearings are founded on contemporaneous opportu¬
nities to be heard in response to an opposing party’s arguments. Ex
parte communications undermine that concept by allowing one
party access to the decision-maker in the absence of others. A judge
so exposed to the unchecked arguments of one party experiences a
threat to the judge’s impartiality, not independence.
Dispute resolution structures other than the ex parte prohibi¬
tion foster impartiality by removing the judge’s personal interests
from the equation. For example, if a judge received a percentage of
fines imposed by the judge as part of the judge’s compensation,
impartiality would be undermined. If a judge receives revocable
benefits, such as temporary housing, from the government, inde¬
pendence would be undermined.
Like most carefully defined concepts, judicial independence
exists as a matter of degree. In the narrow (and probably more
precise) sense, independence is about insulation from interference
by the electorate and by the legislative and executive branches with
a judge’s decision-making. Thought of this way, some judges are
more independent than others. Impartiality as a judicial trait is
often confused with independence. Impartiality is about fair-mind¬
ed, neutral decision-making. Independence is created primarily by

7. European Association of Judges on Judicial Reform .and Judicial Inde-

Charter, Nov. 4, 1997, in Central Euro- pendence 68, 69 (Jan. 2004), http:
pean and Euraslan Law Initiative: Legisla- //abanet.org/ceeli/areas/judicial_reform/
tive Assistance and Research Program. compilation_jan04.pdf.
Compilations of International Standards
184 _ JUDICIAL CONDUCT Ch. 10

structural aspects of government. Impartiality is created primarily

by the structure of the dispute resolution process. All judges are in
systems that foster impartiality; some judges are in structures that
foster independence.

By contrast to the ever-necessary judicial attribute of impar¬

tiality, some judges are meant to be more independent than others,
without diminishing the sense in which the less independent judge
is a judge.

Even the most independent U.S. judges, Article III judges, are
not completely and literally independent. Yet they are frequently
and justifiably used as the model of an independent judiciary.
There are accountability checks on even article III judges. For
example, Congress controls the courts’ overall budgets and their
jurisdiction. If a judge commits what the elected branches have
properly labeled a crime, the judge may be prosecuted. If the judge
displeases the executive or the legislature, the elected branches will
exercise their prerogatives in the appointment and confirmation
processes to decline to move that judge to a higher court appoint¬
ment. If a judge commits a “high crime or misdeamenor,” the judge
can be impeached. Most of these accountability checks are almost
never used, even though they are technically available to Congress,
because, in general at least, Congress does not want to interfere
with judicial independence. There is, therefore, a definite tension
between independence and accountability. How can we resolve this
tension, keeping judges accountable to the other branches while not
beholden to them?

Where does this leave accountability, however, if Congress has

progressively abandoned the constitutionally permitted methods of
curbing the courts? The appointment process is the only constitu¬
tional restraint on the judiciary that Congress has shown itself
willing to exercise; every other method (adjusting court size, reduc¬
ing court budgets, impeachment for unfavorable decisions) has been
gradually abandoned, forming the “customary” independence of
article III courts. So the appointment process stands as the only
remaining check on article III independence, (hopefully) ensuring
the judiciary’s impartiality, its integrity as a third branch of gov¬
ernment so that it can serve as a check on the two others, and its
accountability.

U.S. federal judges are autonomous in the limited sense that

they are given a monopoly over federal judicial power, and they are
insulated from threats to their tenure and salary; that, along with
the power of judicial review of the constitutionality of legislative
and executive action is what makes article III judges independent.
Judicial independence is not an end in itself; it is a means to an
Sec. B INDEPENDENCE 185

end, and it ought to be curtailed when it ceases to be conducive to

that end.

What, then, is the purpose, the end served, of article III judicial
independence? While in part, independence enhances impartiality,
that enhancement is far from the primary purpose of independence.
Most fundamentally, independence preserves the integrity of the
judiciary as a separate branch of government. We want individual
judges to decide cases without being influenced by anything other
than the facts and the law, and we want the judiciary to function as
a third branch of government and check the other two, but at the
same time we do not want the judiciary to be able to run amok,
doing whatever it wants. So the U.S. federal system guarantees
judicial tenure and salary, but does not guarantee that the entire
judiciary will be free from any checks from the other branches. We
see, then, elements of both independence and accountability in the
formulation of the US federal judiciary. But to make the judicial
checks on the other branches meaningful, the balance is decidedly
tilted toward independence and away from accountability.
Article III judges, at least when thought of as members of
courts made up of several judges (the Supreme Court, the courts of
appeal, and the district court panels) are themselves the product of
a combination of executive and legislative choice. The selection and
confirmation process is a real but modest detraction from judicial
independence. Although each individual Article III judge may be
almost entirely insulated from legislative and executive oversight
once confirmed (there remains only the impeachment threat), even
they are less than perfectly independent. They remain as members
of courts the composition of which will be influenced by future
appointments. Nonetheless, Article III judges possess the greatest
measure of independence of any American judges, and probably of
any judges worldwide.
Many U.S. state court judges have a high degree of indepen¬
dence from the legislative and executive, but less than that of
Article III judges. State judges lack life tenure and perfect protec¬
tion against compensation reduction. But state court judicial selec¬
tion and renewal processes result in structures less friendly to
independence than those of Article III judges. Elected state judges
have significant independence from the legislative and executive,
but must answer to the electorate and have a lower measure of
independence from the people as a result. To be sure, in many
states, terms are long and re-election processes so substantially
favor incumbents that this reduction may be modest. But it exists
to some measure in all instances. Given the new freedom to
campaign in judicial elections, independence from the electorate is
likely to diminish further for elected judges. Appointed state judges
begin with some form of the same input from the other branches as
186 JUDICIAL CONDUCT Ch. 10

Article III judges, but their renewal processes substantially de¬

crease their once-appointed independence. These judges must stand
for reappointment by either the executive or the legislative branch¬
es periodically and risk termination when they act in ways that
displease the branch that considers their renewal. While appointed
judges are less beholden to the electorate than elected judges, they
remain just a step removed: the branch that renews judges is itself
subject to the winds of electoral change.
While many U.S. state court judges may function with high
levels of independence, structures to foster high levels of indepen¬
dence are not in place in most U.S. states. One can only conclude
that state government founders did not regard judicial indepen¬
dence with the same regard as did federal government founders.
Independence, at least the structural independence from interfer¬
ence from the other branches, is most important when the judiciary
is expected to function in a counter-majoritarian manner.
One might argue that civil law judges are not independent
from the legislative branch because they have to follow statutes or
are not independent from the executive branch because they have
to follow regulations, but that imposition is no different from
observing that legislation or even lawfully adopted administrative
regulations are the law. But of course, what the civil law judge
lacks is the judicial review power, the common law judge’s power to
interpret constitutions and declare the legislation or regulation to
be beyond the agency’s or legislature’s power.
Notably, the EU courts are asserting the power of judicial
review and are creating a new level of judicial independence for
themselves. They are functioning as common law courts do, using

their own precedents as the basis of decision. s

Beyond the judicial review of a court’s decision, it may be said
that courts’ decisions are always subject to “review” by the legisla¬
tive branch: statutes that the legislature believes judges have
misapplied may be amended; new, constitutionally permissible leg¬
islation to over-ride judicial decisions may be enacted. To perform
this review of courts, the legislature must first notice the errant
decision. It must overcome inertia and the distractions of its myriad
other business to move on the issue. It must have sufficient time in
a session to act. It must garner a majority for passage. And in the
absence of a super-majority, it must have the cooperation of the
executive. Even then, it must act within its constitutional parame¬
ters or the courts will have the power to check the legislative

8. See, e.g., Ernest A. Young, Pro¬ Nicholas P. Zalany, The European Un¬
tecting Member State Autonomy in the ion Constitution and Its Effects on Fed¬
European Union: Some Cautionary eralism in the EU, 66 Ohio St. L. J. 615,
Tales from American Federalism, 77 638-9 (2005).
N.Y.U. L. Rev. 1612, 1630-1 (2002);
Sec. B INDEPENDENCE 187

action. We regard courts, even with this form of legislative over¬

sight, as independent of the other branches.

There are two sets of system attributes that support indepen¬

dence.

One set is structural: U.S. federal judges are selected through a

process that involves both of the other branches; they have life
tenure; their salary cannot be reduced. State judges live in a system
that is less structurally friendly to independence. Many are elected;
some are selected by legislatures; most are closer to the political
process for one reason or another; their court budgets are subject to
local political contests. When these structural attributes are pres¬
ent, as they are in the federal judicial system, they tend to foster
independence from interference by the other branches.
The other set is largely relational rather than structural.
Judges are insulated from most ex parte communication; they are
not to be the recipient of extravagant gifts; they must monitor their
outside interests. These rules are largely meant to foster judicial
independence from inappropriate influence by the parties to litiga¬
tion or others interested in the outcome of litigation. This set of
attributes might more accurately be said to foster impartiality as
much as they foster independence.
In some sense, independence is a personal trait. Structures can
foster it or not. On some level, however, judges are or are not
independent because of their personal qualities. Some judges might
act independently of political influence from the other branches and
of the electorate, even though structures do not lend support to
such conduct. Such judges run the risk of being ex-judges, and
when that occurs, the structures have won. In any event, even
judges of independent spirit and inclination are not independent in
the judicial sense when their decisions are subject to direct, de novo
review by the government.
One way in which a nation can advance the rule of law is to
create a code of judicial conduct. Upholding standards of judicial
conduct is critical to preventing judicial corruption and maintaining
the public’s trust and faith in the judicial process. As Justice
Kennedy so precisely stated, “an ethical system should have a
personal and professional code; it should have a written system of
ethics, and it should have a mechanism for enforcing them.”9
Nations around the world have adopted codes of judicial conduct.
Although such codes are becoming increasingly common, the pres¬
ence and effect of judicial codes of ethics varies by region and by
country.

9. Justice Anthony Kennedy, Judi- (Sept. 1999), http://usinfo.state.gov/

cial Ethics and the Rule of Law, Tel. journals/itdhr/0999/ijde/kennedy.htm.
Conference Speech to Slovenian Judges
188 JUDICIAL CONDUCT Ch. 10

The United Nations (UN) Basic Principles on the Independence

of the Judiciary, adopted in 1985, set forth basic principles for
securing and promoting the independence of the judiciary.1" These
principles have been viewed subsequently as a starting point for
achieving judicial independence.11 Among the principles is the provi¬
sion that judicial independence should be guaranteed under domes¬
tic law in the form of a constitution or some other form of law.12
I he process for the selection and removal of judges should also be
established by law. Judges should be guaranteed the freedom of
expression and association of the judiciary while acting in such a
way as to preserve the dignity of the office and the impartiality and
independence of the judiciary.11

C. JUDICIAL CORRUPTION
Corruption can occur anywhere. But in emerging democracies
especially, judicial corruption is a prime issue.

When the people believe in a justice system, they expect basic

fairness from it. No one should expect perfection from a justice
system, but basic fairness ensures public confidence. With public
confidence, a system can survive occasional mistakes from individu¬
als within the system; without public confidence, a justice system
fails in its most fundamental way. It fails to produce a public that is
willing to comply with law’s commands and play by the rules.
Nothing undermines a legal system and the people subject to it
more than corruption. Corruption shows people that a system
cannot be trusted and is subject to manipulation as a regular
matter. It shows that corruption is its own rule, one that dissuades
people from following the law and expecting others to do so, one
that places each individual in a different position under the law,
depending on that individual’s influence, friends, and willingness to
use money and other incentives to buy favor from decision-makers.
Decision-makers at all levels within a justice system are subject
to corrupting influences. From the highest judge to the first level of
clerk have something of value in the eyes of the potential corrupter.
The corrupter seeks unfair favor. The judge has favor in the form
of decision-making; the clerk has favor in terms of smoothness of
process. Either may be desired by the corrupter and predictably,
some will seek to gain that favor by inappropriate means.

10. Id. at 1. 13. U.N. Basic Principles on the In-

11. European Association of Judges dependence of the Judiciary, G.A. Res.

Charter, supra note 6. 40/32 (Nov. 29, 1985), G.A. Res. 40 146
su- (°ec- 13’ 1985)’ in CEELI Compilations,
12. Explanatory Memorandum,

pra note 5, at 38. suPra note 10- at 2"4'

Sec. C JUDICIAL CORRUPTION
189

In a way, corruption is no more than a special case of impar¬

tiality failure. Judges are expected to be impartial. Many factors
can harm a judge’s impartiality, such as a personal bias toward
principles that diminish the judge’s view of one party’s position in
court. Corruption is a gross form of partiality failure occasioned by
some overt act of the corrupter and not merely the result of the

judge’s predilections.
Corruption can be subtle or it can be quite obvious and overt. A
direct offer and acceptance of money for favorable treatment, a
bribe, is perhaps the most obvious example of corruption. But
corruption exists on a spectrum. Less obvious forms of corruption
can involve attacks on judicial independence. For example, if the
executive branch of government provides favorable housing for all
judges, this may simply be a form of compensation, no different
from the judge’s salary. But if the government has the power to
withdraw the housing (or for that matter reduce the salary) so
provided, this can be corrupting as well, giving the government
some influence over the judge. A judge’s friends or family may also
seek to influence the judge’s decisions, without any form of explicit
payment, but instead trading on the personal closeness with the
judge.
On some level, even simple kindness to court personnel can
generate good will and produce modestly favorable treatment. How
should we treat such a phenomenon? Should a simple kind word
directed toward a court clerk and informally repaid with friendly
willingness to allow a filing to be made five minutes late be treated
as corruption? A modest holiday gift? What about an extravagant
one? Is it the mental state of the potential corrupter that deter¬
mines the status of the act? We should hope for a definition of
corruption that identifies and prohibits gifts and kindness that
undermine the fairness of the justice system but allows people to
exhibit and feel genuine kindness and good spirit.

Even with the best structural protections, inappropriate at¬

tempts to influence judges will occur. In the end, only good charac¬
ter of judges and the genuine societal expectation of judicial impar¬
tiality and fairness will keep the instances of corruption to low
enough levels that the system of justice will be and will be per¬
ceived to be just.

Only good character and structural protections can prevent

corruption. To reduce corruption to levels that fail to destroy the
system, justice systems need to provide structural protection to the
judges and court personnel. Structural protections include, for
example, the following:
190 JUDICIAL CONDUCT Ch. 10

Adequate salaries for judges and staff;

Seriously enforced rules prohibiting ex parte contact be¬
tween litigants or their representatives and judges;
Rules against reduction of compensation forjudges;
Reasonable job security forjudges;

Systems for non-local investigation of corruption charges;

Disclosure requirements for gifts and outside income of
judges;
Serious enforcement of criminal bribery statutes.

D. GENERAL JUDICIAL STANDARDS

1. European Judicial Standards
a. Umbrella EU Standards

The European Union does not have a single, unified code of

ethics for judicial conduct." The judiciary in each country bears
primary responsibility for the promotion and maintenance of high
standards of judicial conduct.1’ While the European Commission
supports a national approach to judicial reform, international stan¬
dards exist to promote the rule of law around the world. These
standards demonstrate an “emerging international consensus on
how to best establish and regulate institutions that support the rule
of law, such as an independent, efficient and accountable judicia-
ry ”ih rp^e international standards serve as a framework for judicial
reform and nations should use them to supplement policies reflect¬
ing individual societal values and traditions."
Participants from thirteen European countries, as well as rep¬
resentatives from the European Association of Judges and the
European Association of Judges for Democracy and Freedom met in
Strasbourg in 1997 to assess the status of judges in Europe.11’ As a
result of that meeting, the Council of Europe entrusted experts
from France, Poland and the United Kingdom with drafting a
charter. The participating European countries took into account
the UN Basic Principles and the Council of Europe’s recommenda¬
tions on the independence, efficiency and role of judges in drafting

14. Moliterno, supra note 1, at 173. 17. Id.

15. Id.
18. European Charter on the Statute
16. Central European and Eurasian for Judges, Council of Europe, July
Law Initiative: Legislative Assistance and
8-10, 1998, in CEELI Compilations,
Research Program, Compilations of Inter¬
supra note 10, at 51, available at
national Standards on Judicial Reform
http://www.coe. int/t/e/legal_affairs/legal_
and Judicial Independence i, ii (Jan.
cooperation/legaLprofessionals/judges/
2004), http://abanet.org/ceeli/areas/jucii instruments_and_documents/charte% 20
cial_reform/compilation_jan04.pdf [here¬
inafter CEELI Compilations]. eng.pdf.
Sec. D GENERAL JUDICIAL STANDARDS
191

the European Charter.11' The draft was unanimously adopted in

1998. 2,1
The European Charter aims to ensure the competence, inde¬
pendence and impartiality of the judiciary by providing a means for

safeguarding individuals’ rights protected by the courts and instill¬

ing public confidence in the judiciary.21 The provisions of the
European Charter are not mandatory but rather serve as guidelines

for realizing the proposed fundamental principles.22 The following

year, judges representing forty-one European and Asian countries23
met in Taiwan and adopted the Universal Charter of the Judge.21
The Universal Charter was unanimously approved as general mini¬
mal principles for judicial conduct.2'’ The Charter consists of fifteen
articles covering independence, impartiality, personal autonomy,

efficiency, remuneration, appointment and disciplinary action. 26

In 2002, the Judicial Group on Strengthening Judicial Integrity
met in Bangalore to draw up an international code of judicial
conduct to combat judicial corruption, promote accountability and

to ensure a competent, independent and impartial judiciary.2' The

UN Basic Principles, the International Bar Association’s Minimum
Standards of Judicial Independence and codes of conduct from
various countries contributed to the drafting of this most recent

and widely adopted international code of judicial conduct.21' The

Judicial Group adopted the Bangalore Principles in November
2002. 2!l The principles are used around the world as guidelines for
developing national codes of judicial conduct and as a reference tool
for revising existing national codes. The Principles outline and
explain six major aspects of ethical judicial conduct.

19. Id. at H 1.1. Luxembourg, Morocco, Norway, Para¬

20. Id. at 51. guay, Poland (observer), Portugal, Re¬
public of China (Taiwan), Romania,
21. Id. at H 1.1.
Senegal, Slovakia, Slovenia, Spain, Swe¬
22. Id. den, Switzerland, The Netherlands, Tu¬
nisia, United Kingdom, USA, and Uru¬
23. Universal Charter of the Judge,
Cent. Council of the Int’l Ass’n. of guay.
24. Id. at 6.
Judges, art. 15, Nov. 17, 1999, in CEE¬
25. Id.
LI Compilations, supra note 10, at 8-9.
The delegations attending the meeting 26. Id.
of the Central Council of the Interna¬
tional Association of Judges in Taiwan 27. The Bangalore Principles of
on November 17, 1999 included: Argen¬ Judicial Conduct 1, 1 (Nov. 25-26,
tina, Austria, Belgium, Bolivia, Brazil, 2002), http://www.unodc.org/pdf/crime/

Cameroon, Canada, Costa Rica, Czech corruption/judicial_group/Bangalore_pri

Republic, Denmark, Estonia, nciples.pdf.
F.Y.R.O.M., Finland, France, Germany,
28. Id. at 11.
Greece, Iceland, Israel, Italy, Ivory
Coast, Latvia Liechtenstein, Lithuania, 29. Id. at 1.
LY)Z JUDICIAL CONDUCT Ch. 10

Independence

Recognizing that judicial independence is a prerequisite to the

rule of law and a fundamental guarantee of a fair trial, judges must
not allow anything, public or private, to interfere with their fair
assessment of the facts of each case. Many countries extend this
principal so far as to prohibit any involvement of judges in political
parties or expressing support for any political candidate.

Impartiality

A judge shall perform his or her judicial duties without favor,

bias, or prejudice. The Bangalore principles require a judge to
disqualify himself or herself from any proceedings in which it may
appear to a reasonable observer that the judge is unable to decide
the matter impartially.

Integrity

The Bangalore Principle of Integrity requires that a judge’s

conduct be “above reproach in the eyes of a reasonable observer” so
as to reaffirm the public’s faith in the integrity of the judiciary.
Poland’s Code of Judicial Conduct is typical of those countries that
have adopted this principle. It reads: “the judge has to fulfill the
highest moral standards either in the way of judicial behavior or

extra-judicial conduct.”30

Propriety

The principle of propriety is closely linked to that of integrity.

In this principle, too, judges are required to comport themselves in
a manner consistent with the dignity of the judicial office. This
principle recognizes that judges are subjects of constant public
scrutiny and therefore must avoid the appearance of impropriety in
all of their activities, including their personal life. As explained by
the Bangalore Principles, this is the principle that prevents judges
from accepting bribes or gifts, misusing the prestige of the judicia¬
ry, and practicing law while serving as a judge. Propriety is not
included in many countries’ codes of judicial conduct, but the same
types of conduct as listed above are nonetheless expressly prohibit¬
ed.

30. James E. Moliterno with U.S. Comparative View 1, 174 (June 2005)
(Materials for a course on Legal Ethics
Agency for Int’l Dev. & Nat’l Ctr. for
State Courts, Lawyer Ethics/Responsibil¬ (Responsibilities of Lawyers) for Serbian
ity of Lawyers: Serbian Standards with a Law Schools) (on file with author).
Sec. D GENERAL JUDICIAL STANDARDS 193

Equality

The principle of equality is included in most European codes of

conduct. It explicitly prevents judges from manifesting any bias
toward a person on “irrelevant grounds,” including but not limited
to race, color, sex, religion, national origin, social or economic class,
disability, age, marital status, or sexual orientation. It is also the
responsibility of the judge to prevent lawyers or court personnel
from likewise demonstrating any bias on irrelevant grounds to¬
wards persons before the court.

Competence and Diligence

Principles of competence and diligence, adopted by most coun¬

tries, require judges to limit their professional duties to judicial
functions or activities relevant to the judicial office, and mandate
that judges take reasonable measures to maintain and develop their
professional knowledge. Austria’s code specifies that “a judge has to
finish his/her cases as quickly as possible.”'*1 These principles also
require that judges perform their duties efficiently, fairly, and with
reasonable promptness.

b. Ethical Standards of Individual European Countries

Standards of judicial ethics vary among European countries.

Provisions governing judicial conduct and judicial independence are
found in national constitutions, statutes or other legal rules. The
standards of judicial conduct often take into account the traditions
of each country as well international norms established in interna¬
tional agreements or resolutions.*' Some European countries, such
as Austria, Denmark, France, Germany, Hungary, Portugal, and
Switzerland, include their rules for judicial conduct in the law;
there is not a separate code for judicial ethics. *" Other countries,
including Poland and Croatia, have rules of judicial conduct written
only in a document separate from the rest of their laws. *' In Latvia,
for example, the Judges’ Association adopted a code of ethics in
1995 but it is not applied in practice. *’ The code of ethics adopted
by the Association of Slovak Judges is binding only informally on
those judges who are members of the Association. :!h The drafting
and the adoption of such codes is advocated in countries that have
no codes of judicial ethics.
31. Id. at 175. 35. Karoly Bard, Judicial Indepen¬
32. Attila Racz, Judicial Indepen¬ dence in the Accession Countries of Cen¬
dence in Eastern Europe with Special tral and Eastern Europe and the Baltics,
Reference to Hungary, in Judicial Integ¬ in Judicial Integrity 265, 303 (Andras
rity 253, 256 (Andras Sajo, ed., 2004).
Sajo, ed., 2004).
33. Moliterno, supra note 29, at 173. 36. Id.
34. Id.
194 JUDICIAL CONDUCT Ch. 10

Several countries have rules of conduct for judges explicitly

expressed in the law as well as outside the law in a separate code of
judicial ethics. Countries in this category include the Czech Repub¬
lic, Estonia, Italy, the Netherlands, Slovenia, Spain, Sweden, and
the Ukraine.5' In Estonia, the Law on Courts and the Law on the
Status of Judges, Constitution and Constitutional Review Court
Procedure Act, adopted in 1991, became the legal basis for the
judicial reform. !s Ireland has not codified any rules of conduct for
its judges, but it plans to introduce such a code of ethics.39
Many countries have enacted a code of ethics in order to satisfy
the European Union accession requirement of judicial indepen¬
dence."’ The EU accession process provided momentum in the
Central and Eastern European (CEE) states to undergo judicial
reform. Judicial reform of CEE countries involves securing judicial
independence. Judicial independence can be achieved by ending
improper external influence on judicial decision making, strength¬
ening the position of judges and the judiciary in society and
ensuring the judiciary’s capacity to monitor other governmental
branches.11 Eastern European and especially Balkan countries of
the former Yugoslavia present a fascinating study of judicial sys¬
tems. In many of these countries, there is an underlying, tradition¬
al, continental European civil law court system, but that system
was an arm of the communist state for roughly 50 years following
World War II. During the early 90s, these systems came out of this
sort of dormancy, awakening to a different world. This phenome¬
non occurred somewhat later for the countries of the former
Yugoslavia because of the war conditions of the 1990s. Essentially,
these court systems emerged to find that changes had occurred in
Western European court systems and as they emerged, they were
strongly influenced by an influx of American Bar Association-led
law and court reform assistance with its inevitably U.S. -style focus.
Hungary serves as an interesting example of a country in
transition. Unlike other Eastern European countries that have
drafted codes of ethics as part of the democratic transition, the
Hungarian judiciary does not have such a comprehensive written
code.12 In Hungary, the rules and provisions governing judicial
37. James E. Moliterno with U.S. 39. Moliterno, supra note 36.
40. Id.
Agency for Int’l Dev. & Nat’l Ctr. for
State Courts, Lawyer Ethics! Responsibil¬ 41. Lucie Atkins, The Shifting Focus
ity of Lawyers: Serbian Standards with a
Comparative View 1, 173 (June 2005) of Judicial Reform.: From Independence
(Materials for a course on Legal Ethics to Capacity , Open Society Institute (Aug.
(Responsibilities of Lawyers) for Serbian 2002), http://www.eumap.org/journal/
Law Schools) (on file with author). features/2002/aug02/indeptocapacity.
38. Hon. Rait Maruste, Estonia: 42. Interview by Robert Almosd with
Leading Central Europe in Judicial Re¬ Dr. Zoltan Lomnici, Deputy President of
the Hungarian Supreme Court, Does
form, Int’l Judicial Observer, No. 2, Jan.
1996, at 3, 3. Hungary Need a Code of Judicial Eth-
 195
Sec. D GENERAL JUDICIAL STANDARDS

independence and judicial conduct are found in the Constitution of

1949 and in acts of Parliament.4'1

The Statute on the Legal Status and Remuneration of Hungar¬

ian Judges11 provides numerous ethical provisions. There is an
ongoing debate in Hungary regarding whether to codify judicial
ethics in a single code. To date, however, the standards of judicial
conduct remain in the 1997 Statute.1'’ While it is not a code of
ethics, “it regulates the judicial procedure by circumscribing the
conduct of judges.”"1 The Statute incorporates many provisions
including terms regulating appointment procedures and restricting
extra-judicial activity to those that will not impair judicial impar¬
tiality or independence.1. The Statute restricts a judge’s extra¬
judicial conduct in business. If a judge starts his own business, for
example, he may not hear a case involving companies representing

the judge’s interest groups without his impartiality being called

into question.1" Interestingly, not every European country con¬
strains a judge’s involvement in business. Judges in Austria may
participate in business activities without scrutiny.49
In Germany, judicial independence is guaranteed in the 1949
constitution, known as the Basic Law.’11 Article 20(2) requires that
executive and legislative officials may not simultaneously serve as
judge and bars judges from participating in non-judicial functions. ’1
Article 97(1) ensures the independence of judges by declaring that,
“judges shall be independent and subject only to the law.’”' Yet,
despite these guarantees of judicial independence, German law
permits judges to join political parties and to speak out on political
issues. Judges may hold office in a political party or other organi¬
zation with political objectives and may even serve on a city
council.’4 Even though German judges are allowed to engage in
political activity, outside of the courtroom they are required to
conduct their behavior in a manner that will not compromise their
47. Id.
ics? (Aug. 2002), http://www.eumap.org/
journal/features/2002/aug02/judethics fo- 48. Id.
rhungary.
49. Id.
43. Act of Parliament No. LXVI, On
the Organization of Courts and Court 50. Donald P. Kommers, Autonomy
Administration (1997), Act No. LXVII,
On the Legal Status and Remuneration versus Accountability: The German Judi¬
ciary, in Judiclyl Independence in the Age
of Judges (.1997).
of Democracy: Critical Perspectives from
44. Act No. LXVII. On the Legal Sta¬ Around the World 131, 135 (Peter H.
tus and Remuneration of Judges (1997).
Russell & David M. O'Brien eds., 2001).
45. Attila Racz, Judicial Indepen¬ 51. Id. at 136.
dence in Eastern Europe with Special
Reference to Hungary, in Judicial Integ¬ 52. Id.
rity 253, 257 (Andras Sajo, ed., 2004).
53. Id. at 137.
46. Interview by Robert Almosd with
Dr. Zoltan Lomnici, supra note 41. 54. Id.
196 _ JUDICIAL CONDUCT Ch. 10

independence on the bench.0' However, judges are required as a

matter of legal formality to remain politically neutral in order to
best represent the public. ''’ In order to reconcile these seemingly
contradictory standards, an analysis of the Judges Act revealed that
"a judge violates the principle of neutrality only when he divulges
his political activity in a highly partisan and provocative manner or
advances his political aims by means other than substantive argu¬
ments.’”' Political roles of any kind by judges would be considered
highly improper in countries like England, Canada or the United
States but in Germany disbarring judges from such activity would
be seen as interfering with political rights enjoyed by other citi¬
zens.”' A similar practice exists in Italy.
In Italy many judges have held political positions. In the 1996
national election, fifty members of the magistracy participated in
the electoral race as representatives of various parties, and twenty-
seven were elected.”1 Not only are judges allowed to hold political
positions but they are permitted to return to their judicial roles
after playing a prominent political role.60 This practice is very
different from that in the United States where detailed codes of
judicial conduct are strictly enforced and the structure of the
judiciary prohibits extra-judicial political activities.61 The unique
Italian system of promotions creates a structure that facilitates the
process for a judge who desires to take a leave of absence to pursue
a political position. Promotions to different levels of the judiciary
are not based on examinations or on the evaluation of written
judicial work and extended leaves of absence to perform other
activities in the executive or legislative branches do not impair a
magistrate’s chance for promotion.62
Assessing the judicial standards of individual European nations
demonstrates the importance of a comprehensive code of judicial

conduct to promote and protect judicial independence. “A detailed

code of judicial conduct is not only important to avoid the possibili¬
ty that, through the acceptance of extra-judicial appointments,
participation in partisan activities, or improper behavior in or
outside the court, the independence and impartiality (actual and/or

perceived) of the judge might be compromised.”6'’ Judicial indepen¬

dence and impartiality must be secured not only in reality but in
the public’s view.
55. Id. at 138. Perspective, in Judicial Integrity 181,
56. Id. 193 (Andras Sajo, ed., 2004), available
at http://sitesources.worldbank.org/
57. Id. INTECA/Resources/DiFedericopaper.pdf.
58. Id. at 138. 60. Id. at 194.

59. Giuseppe Di Federico, Indepen- 61. Id.

dence and Accountability of the Judicia- ™ jc/ at 195
ry in Italy: the Experience of a Former
Transitional Country in a Comparative 63. Id. at 202.
Sec. D PACIFIC JUDICIAL STAN DAK I) S 197

2. Japanese and Asia/Pacific Judicial Standards

The modern Japanese civil code has developed from adapting
European standards to be suited in Japanese Society.'’1 In fact,
Japanese standards are similar to those of the European Bangalore
Principles in ensuring impartiality, and political neutral activities.
At the 1997 Conference of Supreme Court Chief Justices from the
Asia Pacific region, Chief Justices from the region adopted a joint
Statement of Principles of the Independence of the Judiciary.65
Currently thirty-two signatory countries6'’ from the Asia Pacific
region, including Japan, support the minimum standards to main¬
tain and ensure the independence and effective functioning of the
judiciary.67 The Statement intends to provide a clear report on the
principles of the independence of the judiciary and to ‘‘promote the
administration of justice, the protection of human rights and the
maintenance of the rule of law within the region.”68 It sets forth
ten principles for the region’s nations to achieve judicial reform.

Independence of the Judiciary

In order to provide a fair, competent, independent and impar¬

tial trial, an independent judiciary is critical. Judges are free to join
associations that represent their interests and promote professional
training but are to avoid any act or appearance of impropriety.
Such independence should be guaranteed by constitution or some
other form of law.69
The Chief Justice of the Supreme Court of Japan affirmed
Japanese support for the Beijing Statement in an opinion accompa¬
nying the Statement.'0 While judicial independence, judicial com¬
pensation and status are guaranteed by the Japanese Constitution,
the Chief Justice clarified the Japanese principle of judicial inde¬
pendence in his opinion.'1 Although, judges may form and join an
64. Legal Dialogue, Contracts, E.U.- Western Samoa, Fiji, Malaysia, Republic
Japan, Nov. 21-22, 1996, http://www. of the Seychelles, Tonga, Republic of
kclc.or.jp/japanese/sympo/EU.htm. Kiribati, Marshall Islands, Nauru and
Tuvalu, Russia, Japan.
65. Beijing Statement of Principles
67. Id. at 3.
of the Independence of the Judiciary in
the LAWASIA Region, Law Association 68. Id.
for Asia and the Pacific 1, Aug. 28,
69. Id. at 4.
1997, http://www.lawasia.asn.au/uploads
/images/BeijingS tatement.pdf. 70. Opinion of the Chief Justice of
Japan concerning the Beijing Statement
66. Id. at 8-9. Australia, Bangladesh,
of Principles of the Independence of the
People’s Republic of China, Hong Kong, Judiciary in the LAWASLA Region 10, 10
India, Indonesia, Republic of Korea,
Mongolia, Myanmar (Burma), Nepal, (Aug. 1997), http://www.lawasia.asn.au/
New Caledonia, New Zealand, Pakistan, uploads/images/BeijingStatement.pdf.

Papua New Guinea, Philippines, Sing¬ 71. Beijing Statement of Principles,

apore, Sri Lanka, Vanuatu, Vietnam, supra note 64, at 10.
198 JUDICIAL CONDUCT Ch. 10

association of judges to represent their interests, judges may not

form or join a labor union. '■ Japanese judges are required to be
politically neutral. They are not permitted to form or join any type
of political association or one that would “cause suspicion in the
public about the fairness of the judiciary.”'3 The Chief Justice
reiterated that, as in Europe, the need for independence and
neutrality in the judicial system must be secured as well as the

public’s perception of fairness in the judiciary.

Objective of the Judiciary

The function of the judiciary is to administer the law impartial¬

ly both among persons and between persons and the state. Within
this function, the judiciary’s objectives are to ensure that all
individuals live securely under the rule of law and to promote the
attainment of human rights.'1

Appointment of Judges

Judges should be appointed based on merit. Only those individ¬

uals demonstrating competence, integrity and independence should
be considered for appointment. Procedures for appointment and
selection should be clearly defined and formalized. Such procedures,
however, may vary based on the values and traditions of the
society.

Tenure

The Beijing Statement advises that judges have security of

tenure but recognizes that the duration and procedure may differ
by country.

Judicial Conditions

Judges should receive sufficient remuneration and appropriate

conditions of service, which should not be altered to the disadvan¬
tage of the judges during their term of office unless as part of an
overall economic measure to which the majority of judges in the
relevant court have agreed. Judges should also benefit from person¬
al immunity from civil suits for monetary damages for improper
acts or omissions in exercising their judicial functions.

72. Id. 74. Id. at 4.

73. Id.
Sec. D PACIFIC JUDICIAL STANDARDS 199

Jurisdiction

The judiciary is to have jurisdiction over all justiciable issues

and exclusive authority to decide whether to hear a case.

Judicial Administration

The chief judicial officer of the relevant court should have

authority to assign cases to judges and the courts, or a competent
authority working with the courts, should prepare the budget.

Relationship with the Executive

The Executive must ensure the security of the judges and their
families but may not threaten or bring pressure on a particular
judge.

Resources

In order to carry out their authority, judges need adequate

resources to perform their functions and maintain the rule of law.
Even in times of economic constraint, the judicial resources essen¬
tial to maintaining the rule of law should be considered a high
priority.

Emergency

The independence of the judiciary may be altered only in cases

of serious emergency. In such situations, the state will move the
cases to other courts or independent authority.

Judicial Reforms Specific to the Japanese Judiciary

The Japanese judicial system is unitary and centralized under

the federal government. ' ’ The Japanese Supreme Court sits at the
apex of the judicial system. The Supreme Court, the chief justice
and General Secretariat in particular, controls personnel issues
involving judges and judicial staff and oversees the training, nomi¬
nation, reappointment, assignments, and salaries of lower court
judges. As a result, Japanese judges and courts are tightly con¬
trolled, as opposed to the more decentralized and independent
federal courts in the United States.1'’

75. David M. O’Brien & Yasuo Oh- also The Secretariat of the Judicial Re¬
koshi, Stifling Judicial Independence form Council. The Japanese Judicial Sys¬
from Within: the Japanese Judiciary, in tem (July 1999) (for overview of judicial
Judicial Independence in the Age of De¬ system), http://wAvw.kantei.go/jp/foreigny
mocracy: Critical Perspectives from
judiciary/0620system.html.
Around the World 37, 41 (Peter H. Rus¬
sell & David M. O’Brien, eds., 2001). See 76. O’Brien, supra note 74, at 45.
200 JUDICIAL CONDUCT Ch. 10

During the course of a judge’s career, he will be reassigned on

many occasions and to different courts. Only very few will ever be
considered for appointment to the prestigious high courts and even
fewer will be rewarded with an appointment to the Supreme Court.
Judges in civil law countries such as Japan face pressure from
government in the form of incentives to decide cases a certain

way." The practice of frequently reassigning judges serves as an

incentive to decide cases favorably for the government. Even
though the judicial system appears to be based on productivity and
efficiency, judges who decide cases against the government tend to
receive less desirable assignments.^ Because of the court’s adminis¬
trative supervision over the lower courts, judges who are too
independent or liberal may find themselves reassigned to less
desirable courts or locations.'" Supreme Court also has authority
over salary rankings and may discriminate against those who are
too independent. Although the Constitution prohibits reducing a
judge’s salary, the General Secretariat of the Supreme Court can
vary the rate of promotion and increase the salary of judges as

desired.80
In an effort to reform the Japanese judiciary, the Prime Minis¬
ter established the Justice System Reform Council under the Cabi¬
net in July 1999 to assess the current state of affairs of the
Japanese judicial system and to propose comprehensive recommen¬
dations for judicial reform.81 The Council recognized “the indispens¬
ability of reinforcing the function of justice in the increasingly
complex and diversified Japanese society” and met with the under¬
standing that “an accessible and user-friendly justice system should
be realized that can respond to the expectations of the people and
meet their trust.”82 On June 12, 2001 the Council submitted to the
Cabinet its final recommendations for establishing a justice system
to support Japanese society.83 The Council’s recommendations focus
on instilling public trust and confidence in the judiciary and secur¬
ing judicial independence.
mocracy: Critical Perspectives from
77. J. Mark Ramseyer & Eric B. Ras-
musen, Judicial Independence in a Civil Around the World 37, 48 (Peter H. Rus¬
Law Regime: The Evidence from Japan, sell & David M. O’Brien, eds., 2001).
13 J.L. Econ. & Org. 259, 260 (1997).
80. Ramseyer, supra note 76, at 267.
78. Memorandum from Colleen P.
81. The Justice System Reform
Danos, Nat’l Ctr. for State Courts,
Knowledge & Info. Servs., on Fostering Council, Recommendations of the Jus¬
Judicial Independence in State and Fed¬ tice System Reform Council — For a Jus¬
eral Courts 1, 4 (Feb. 27, 1998), http:// tice System to Support Japan in the 21st
ncsconline.org/wc/Publications/KIS_Jud Century (June 12, 2001), http://www.
Ind_ S98-0281_Pub.pdf. kantei.go.jp/foreign/judiciary/2001/0612
79. David M. O’Brien & Yasuo Oh- report.html.
koshi, Stifling Judicial Independence 82. Id. at intro.
from Within: the Japanese Judiciary, in
in the Age of De¬
83. Id.
Judicial Independence
Sec. D U.S. STANDARDS 201

In order to strengthen public confidence in the Japanese judi¬

cial system, the Council recommended that a body should be
established within the Supreme Court to consult with and make
recommendations to the Court. The Council emphasized that meas¬
ures should be taken to ensure that the body makes independent
and objective judgments regarding the selection of candidates for
appointment. sl The entire selection and appointment process should
be transparent.*0 The current Japanese judicial system requires
that judges to undergo rigorous tests before being allowed to work
as a judge, which fosters the creation of an elite group of profes¬
sional judges. Students study law as an undergraduate, like those in
the United Kingdom, Germany and France, and must pass the
National Law Examination. The examination is extremely competi¬
tive and until 1991 the acceptance rate into the Legal Training and
Research Institute was only at 2.5 percent.** Recent reform efforts
have increased the number of admittees, but it remains at only
about one thousand per year/' The current judicial reform initia¬
tive addresses the continued need to increase the number of mem¬
bers of the legal profession.*8 The Council’s sweeping reforms are
on-going and efforts are underway to ensure greater independence
of the judiciary, improve public faith in the judicial system and
establish ethical judicial standards. Unlike the Japanese judiciary,
judicial power has historically been the strongest in the United
States and the American judiciary has a detailed code of judicial

conduct.*1'

3. U.S. Standards

Ethical judicial conduct is vital to ensuring an efficient, neu¬

tral, objective and functioning judicial system. However, not all
nations have a judicial code that is as clearly defined as strictly
enforced as the United States. Perhaps the most central attribute of

the American judge’s role in our justice system is impartiality. All

of the other rules and assumptions flow from this central notion. As
Justice Kennedy stated, “If the perception of unfairness exists, a
cloud is cast over the judiciary.”1"1 The American Bar Association’s
84. Id. at ch. 3, pt. 5, § 2. 88. Id.
85. Id.
89. Peter H. Russell, Conclusion: Ju¬
86. Japan Federation of Bar Associa¬ dicial Independence in Comparative Per¬
tions, System of Japanese Attorneys, spective, in Judicial Independence in the
http ://nichibenren . or .jp/en/about/sy st em . Age of Democracy: Critical Perspectives
html
from Around the World 301, 302 (Peter
87. Hon. Sabrina Shizue McKenna,
Japanese Judicial Reform: Proposal for H. Russell &
2001). David M. O'Brien eds.,
Judicial Reform in Japan: An Overview,
90. Id.
2 Asian-Pac. L. & Pol’y J. 121, 125
(2001).
 JUDICIAL CONDUCT Ch. 10

Model Code of Judicial Conduct" establishes the standards for

ethical judicial conduct. The Code is intended to clearly define basic
standards governing judicial conduct and to provide guidance to aid
judges in establishing and maintaining high standards of judicial
and personal conduct.11' A judge should strive to uphold the integri¬
ty and independence of the judiciary and the five Canons contained
in the Code aim to further that objective.

A Judge Should Uphold the Integrity and Independence of the

Judiciary.

A judge should participate in establishing, maintaining and

enforcing high standards of conduct and should work towards the
preservation of the integrity and independence of the judiciary.

A Judge Should Avoid Impropriety and the Appearance of

Impropriety in all Activities.

This Canon’s restriction on behaving with impropriety applies

to both the professional and personal conduct of a judge. A judge
should distinguish between proper and improper use of the prestige
of judicial office in all activities.

A Judge Should Perform the Duties of the Office Impartially

and Diligently.

A judge’s judicial duties should take precedence over all of his

or her other activities. A judge should perform his or her judicial
activities without bias or prejudice. In addition to racial, sexist and
ethnic biases, judges must avoid bias in favor of friends and
associates and against particular causes or groups of lawyers. In
maintaining courtroom decorum and conduct, judges are required
to restrain lawyer bias, though not to the extent of prohibiting
legitimate argument.
In compliance with this principle, a judge should permit every
person who has a legal interest in a proceeding the right to be
heard according to the law and should not initiate, permit or
consider ex parte communications, or consider other communica¬
tions made to the judge outside the presence of the parties concern¬
ing a pending or upcoming case that may lead to bias or the
appearance of bias in a proceeding. A case continues to be a
pending matter until its final disposition. Ex parte communications
are any communications with either party to a case, concerning the
case, made in the absence of the other party. The basic concepts of
91. Model Code of Judicial Conduct
(2000).
92. Id.
Sec. D U.S. STANDARDS 203

fair hearings are founded on contemporaneous opportunities to be

heard in response to an opposing party’s arguments. Ex parte

communications undermine that concept by affording some parties
opportunities to influence the judge’s decision-making in the ab¬
sence of other parties. Communications for scheduling or adminis¬
trative purposes do not violate the ex parte communication rules
provided the judge “reasonably believes that no party will gain |an]
advantage [from the communication] and the judge promptly noti¬
fies all parties and affords them an opportunity to respond."
A judge must also refrain from public comment regarding cases
pending or cases that may be filed in the foreseeable future until
final disposition. Commenting on cases is not the role of a judge
and may affect the outcome of the case. A judge should disqualify

himself or herself in a proceeding in which the judge’s impartiality

might reasonably be questioned.

A Judge Should Regulate Extra-Judicial Activities to Minimize

the Risk of Conflict with Judicial Activities.

A judge’s extra-judicial activities should not lead to reasonable

doubt regarding a judge’s impartiality, demean the judicial office or
interfere with the proper performance of judicial duties.

A Judge Should Refrain from Inappropriate Political Activity.

This provisions prohibits a judge from acting as a leader or

holding an office in a political organization; publicly endorsing or
publicly opposing another candidate for political office; making
speeches on behalf of a political organization; attending political
gatherings; or, soliciting funds for, paying an assessment to or
making a contribution to a political organization or candidate. A
judge must resign from judicial office if the judge becomes a
political candidate.

The duties of American judges are numerous and well-defined.

Although the five Canons of the Code provide the over-arching
standards of American judicial conduct, a few judicial responsibili¬
ties require a more detailed look.

Diligence

American judges are required to be diligent in the discharge of

their duties. Thus, judges must process and resolve cases and
motions filed in their court without unnecessary delay.
204 JUDICIAL CONDUCT Ch. 10

Competence

American judges must also have and maintain competence in

the law and decision-making. In some jurisdictions, this require¬
ment has been interpreted to require judges to attend continuing
judicial education classes.

Maintain courtroom decorum

American judges are authorized and required to maintain

courtroom decorum. This means that judges have power (the con¬
tempt power) to discipline those in their courtrooms for disruptive
behavior. For example, lawyers may be removed for failure to follow
a judge’s rulings. The power must not, however, be abused. Judges
may not, for example, remove lawyers from court simply because
the judge is unhappy with the lawyer’s arguments.

Patience

Even while maintaining courtroom decorum and disposing of

the court’s business diligently, an American judge must exhibit
patience.

Avoid criticism of jurors

Aside from expressing appreciation of jurors’ service, judges

may neither compliment nor criticize jurors’ decisions.

Reporting others’ misconduct

Judges have duties to report misconduct of other judges and of

lawyers under certain circumstances. A judge’s report of miscon¬

duct is absolutely privileged from civil actions for damages.

Disqualification and waiver

Largely because of the motivation of the litigants, disqualifica¬

tion is among the most important and most litigated areas of
judicial conduct. A judge who voluntarily removes herself from
hearing a matter is said to have recused herself. The basic standard

for judicial disqualification is an objective one, “A judge shall

disqualify himself or herself [when] the judge’s impartiality might
reasonably be questioned...” A judge must also, however, be
subjectively free from bias.

Occasionally, an issue arises that would disqualify every judge

that is sitting on a court with jurisdiction to resolve the issue.
Sec. E CONCLUSION 205

When this phenomenon occurs, the “rule of necessity” says that

judges are not disqualified. Beyond the general standard, a wide
variety of specific categories of reasons may cause a reasonable
person to question a judge’s impartiality. Naturally, a judge’s bias
may be reason to question her impartiality. Bias, however, will only
be grounds for disqualification when the bias is against a party as
opposed to the legal rules governing the case and when the bias
against a party arises from a source outside the present litigation.

A judge’s bias regarding the governing legal rules is insufficient

to warrant disqualification. Only bias for or against a party is
disqualifying. When a judge becomes biased during judicial proceed¬
ings based on what happens inside the judicial proceedings, that
bias is not disqualifying. Only a bias that has its source outside the
judicial proceeding in question is disqualifying.
These exhaustive and clearly defined standards of judicial
conduct in the United States have played a role in guaranteeing an
independent, objective and efficient judiciary and have fostered
public faith in the American judicial system.

E. CONCLUSION
Nations around the world working to secure the rule of law
have implemented judicial reforms and established standards of
judicial ethics. Well-defined standards of judicial conduct are inte¬
gral to maintaining an impartial and independent judiciary. Al¬
though standards and principles vary by region and by country,
members of the court, whether in personal or official capacity,
should act in accordance with the established standards of conduct
established in each nation. Such standards of ethical conduct help
to preserve a functioning judicial system and instill public percep¬
tion of good governance and faith in the judiciary.

Discussion Questions:

10-1: Marina’s neighbor, Bojan, is a judge. One evening, someone

breaks into Marina’s house. Bojan remembers seeing some¬
one suspicious on the street earlier in the evening. Bojan
volunteers to testify to the approximate time he spotted the
shady character, as well as to the prowler’s appearance. Does
Bojan’s conduct violate general principles of judicial con¬
duct?

10-2: Attorney Paolo is trying a case in Judge Cirigliano’s court.

Paolo and Judge Cirigliano run into each other one evening
while each is dining alone. Paolo does not join the judge’s
table, but he does stop by and talk for approximately 20
minutes. A party on the opposite side of the case is present
206 JUDICIAL CONDUCT Ch. 10

at the restaurant and witnesses the discussion. If both Paolo

and Judge Cirigliano testify that he was not discussing the
case, will the judge be considered to have violated a rule of
conduct?

10-3: Judge presides over a complex civil suit that takes several
months to try. The issues are very difficult, and although
her law clerks work overtime to keep her current and
knowledgeable, she is struggling with this unfamiliar area of
the law. In the end, she applies an incorrect legal standard,
wrongly causing B to prevail over A. The appeals court
overturns the judge’s decision, noting the judge’s error.
Should A be able to bring an action against the judge in
order to recover the costs of the appeal?
10-4: Judge, a judge in a criminal trial court of State, wishes to
serve as guardian of her father, who has been declared
incompetent. Accepting the responsibilities of the position
would not interfere with her performance of Judge’s official
duties. Although, the position in all likelihood would not
involve contested litigation, it would be necessary for Judge
to prepare and sign various pleadings, motions and other
papers and to appear in civil court on her father’s behalf.
Would it be “proper” for Judge to undertake this guardianship?
10-5: Attorney has an emergency. A family problem has come up,
and she is required to leave town quickly. However, she has
a motion argument in two days, and she is not even halfway
through preparation for it. Without thinking, she grabs the
phone and calls the judge at home. She explains her emer¬
gency situation and tells the judge that this motion is
critically important to the case. He agrees to push the
hearing date back by a week. Can the attorney be subject to
discipline for this communication? The judge?
10-6: Judge needed to obtain a loan to be secured by a second
mortgage on his house. Bank offered him a loan at a very
favorable interest rate. The vice-president at Bank told
Judge:

“Frankly, we normally don’t give such a large loan

when the security is a second mortgage, and your interest
rate will be 2% less than we charge our other customers.
But we know that your salary is inadequate, and we are

giving you special consideration.”

Is it “proper” for Judge to accept the loan?
10-7: While Judge Goran’s chambers are being redecorated, he is
forced to use the public restrooms down the hall. One day,
he accidentally overhears a last-minute emergency meeting
between the attorney and criminal defendant presently be¬
fore his court. The judge hears the attorney discussing his
Sec. E CONCLUSION 207

participation with the client in an attempt to bribe and/or

coerce members of his client’s council (lay judges). What
should Goran do?

10-8: Judge Maja has an old friend from childhood who is charged
with criminal conduct in a case pending in Maja’s court.
Maja and her friend see each other often, keep in frequent
contact, and consider themselves close. Maja honestly be¬
lieves, however, that despite this friendship, she can remain
neutral. Her higher duty is to uphold the law. Is Maja
correct in deciding that he need not disqualify herself?

10-9: Judge Jasna is one of three trustees for the educational

benefit of her grandchildren. The trust owns 5,000 shares of
stock in Big Oil Company. The stock has been selling for the
past year at $10 per share. Big Oil is suing Oil Refining
Company for breach of an oil refining agreement, and the
case is assigned to Jasna’s court for trial. Jasna believes that
she can be fair and impartial. Should Jasna disqualify her¬
self from the case?
 Index

References are to Pages

ABA MODEL RULES ADVERTISING AND SOLICITATION

Adverse authority 142-43
— Cont’d179
Armenia
Advertising and Solicitation 170-173
Arguing for false inferences 152 CCBE Code 176-177
Business transactions between lawyer Croatia 179
and client 102 England 178
Choice of law 34-35 Estonia 179
Client trust accounts 31-32 European Union 176-179
Commingling funds 32 Finland 176
Confidentiality 82, 90-91, 93 France 177
Conflict of interest 100-103 Germany 178
Decision making, allocation between Ireland 178
lawyer and client 39-40 Italy 177
Duties to client, foundational 39-40
Japan
Lituania174-175
175
Duty of candor 141
Engagement and appointment of counsel Norway 178
45-46 Poland 179
False evidence and client perjury 146 Romania 179
Imputed disqualification 103 Scotland 178
Lawyers associating in foreign jurisdic¬ Slovakia 179
tion 50
Spain
Sweden 177178
Lawyer independence and MDP 42-43
No contact rule 156-158 United Kingdom 178
Pro bono legal services 71 United States 170-174
Pro hac vice 15
ALBANIA
Role of lawyer 4-5
Commingling funds 33
Screening i03-104
Trial publicity 154 ARMENIA
Withdrawal from representation 48 Advertising and solicitation 179
Witnesses 158
ATTORNEY-CLIENT PRIVILEGE
ADMISSION TO PRACTICE ABA Model Rules 131
Generally 11-22 Civil law jurisdictions 115
Admission in home state 12-14
Corporate whistleblowing 130-133
Admission in host state or country Daiwa Bank Ltd. 132-133
14-19
European Court of Justice 115, 119-120
Multistate Professional Responsibility France 126
Examination 12
General Agreement on Trade in Services
Practice, multijurisdictional law 12 (GATS) 132
ADVERSE AUTHORITY Hague Evidence Convention 125, 127
In-house counsel 114-130
See Duties to the court, individual coun¬
tries and rules Japan 127-128, 132-133
Sarbanes Oxley Act 131
ADVERTISING AND SOLICITATION
Scope of the privilege 120-124
Generally 169-180 Transnational attorney-client privilege
ABA Model Code 170-173 issues 124-127

209
210
_ INDEX _
References are to Pages

ATTORNEY-CLIENT PRIVILEGE CIVIL LAW JURISDICTIONS

— Cont’d Generally 2-3
United Kingdom 115 Attorney-client privilege 115
United States 125-127 Confidentiality 85-88
Conflict of interest 105
AUSTRALIA
Contingent fees 60
Conflict of interest 107-108 45
Imputed disqualification 110 Engagement and appointment of counsel
Lawyer independence and MDP 43 False evidence and client perjury 151
AUSTRIA Fee shifting 66
Fee shifting 66 Judicial independence 182
Judicial standards 193, 195 Procedure, dispute resolution 3
Substitution of council 47 Relationship, lawyer-client 41
Self-governance 23
BAR DISCIPLINE
COMMINGLING FUNDS
Generally 23-25
European Union 23-24 See Fiduciary Duties
Ireland 24
COMMON LAW JURISDICTIONS
Japan 24-25
Self-governance 23 Generally 2-3
United Kingdom 23-24 Development within the European Un¬
United States 23 ion 8
Judicial independence 182
BELGIUM
Procedure, dispute resolution 2-3
Lawyer independence and MDP 43 Self-governance 23
Program, educational 13
COMPENSATING LAWYERS
CALIFORNIA
Generally 58-81
Registered Foreign Legal Consultant Choice of law regarding fees 67-68
(RFLC) 52-53 Contingent fees 59-64
Right to counsel in civil cases 71-72 Fee schedules 64-65
CANADA Fee shifting 66-67
Government provisions of legal services
Adverse authority 143
69-71
Arguing for false inferences 153
British Columbia 59 Pro bono legal services 71

Contingent fees 59-60 Regulation of fees 58-69

False evidence and client perjury Representing of indigent and low-income
146-151 clients 69-80
No contact rule 158 Right to counsel in legal services 71-80
Non-discrimination 167 CONFIDENTIALITY
Ontario 59 ABA Model Rules 82, 90-91, 93
Ontario Rules of Professional Conduct
59 American attorneys in China 93-95
China 89-90
Right to counsel in civil cases 73 Civil law countries 85-88
Witnesses 164 Confidentiality and Privilege generally
CHINA 82-92
Denmark 87
Confidentiality 89-90
False evidence and client perjury England 87
145-146 European Union 86-88
Fee schedules 65 Exceptions to confidentiality 90-92
France 85, 92
Government provision of legal services Germany 87
69
Greece 86-87
Independence of lawyers 41-42 In-house counsel 114-130
Relationship, lawyer-client 41-42
Withdrawal from representation 48 Italy 86-87
CHOICE OF LAW Japan 88-89
Japanese Code of Ethics 88
Luxembourg 86
Generally 34-26
European Union 35 Ministry of Justice 93-94
Portugal 86
Japan 35-36 Professional secrets doctrine 85
United States 34-35
 INDEX
211
References are to Pages

CROATIA
CONFIDENTIALITY— Cont’d
Rwanda 91 Advertising and solicitation 179
Sarbanes-Oxley Act 88-89 Commingling funds 33
Spain 86 Judicial standards 193
State secrets 90 Relationship, attorney-client 30
Transnational litigation 93-96 Withdrawal from representation 30
United Kingdom 91 CZECH REPUBLIC
United States 82-86, 90-95 Court appointed lawyers 29
Yugoslavia 91 Judicial standards 194
CONFLICT OF INTEREST Relationship, client-attorney 29
Generally 98-110 DENMARK
ABA Model Rules 101-103 Confidentiality 87
Australia 107-108, 110 Judicial standards 193
Broad brush approach 107-108 i Program, educational 13
Business transactions, between lawyer DISCLOSING ADVERSE AUTHORITY
and client 102-103
Civil law countries 105 See Duties to the court, individual coun¬
tries and rules
Code of Ethics for Practicing Attorneys,
DUTIES TO THE COURT
Japan 105-107
Duty of loyalty 98 Generally 141-156
ABA Model Rules 141, 143, 146, 152,
European Union 104-105
France 100 154
Imputed disqualification 103 Adverse authority 142-144
Independence of lawyer 99-101 Arguing for false inferences 152-154
Informed consent 102 Canada 143, 146-151, 153
CCBE Code 142, 144
Japan 105-107, 110
New Zealand 107-108, 110 China 145-146
Civil law countries 151
Screening 103-104
Specific approach 108 Conduct with regard to court proceed¬
Successive conflicts 108 ings 141-142
Sweden 109 Duty of loyalty 142-143
United Kingdom 100 Duty of candor 142-143
England 143, 152
United States 99-104, 110 European Union 142, 144
Waiver of conflict of interest 105
False evidence and client perjury
CONTINGENT FEES 144-155
Italy 144
Generally 59-64
British Columbia 59 Japan 141-142
Canada 59-60 Japanese Code 141-142
Civil law countries 60 Trial publicity 154-155
United Kingdom 154-155
European Union 62-63 United States 141, 143, 146, 152, 154
Fee multipliers 61
F ranee 62 DUTIES TO OTHERS
Honoraire 62 Generally 156-168
Italy 62 ABA Model Rules 156-158
Canada 158, 164, 167
Japan 63-64
Ontario 59-60 CCBE Code 156, 166
Ontario Rules, of Professional Conduct European Union 156, 166
France 157, 165
59-60
Pactum de quota litis 63-64 Italy 157-159, 165
Palmario 62 Japan 166
Success fees 61, 64 No contact rule 156-158
Non-discrimination 167-168
United Kingdom 61-62
United States 59-63 Other attorneys 165-167
Rwanda 157, 165
Uplifts 61-63
i United Kingdom 159-164
CORPORTATE WHISTLEBLOWING United States 156-158, 166-167
See Attorney-client privilege; European Witnesses 158-165
Union; GATS ! Witness training (coaching) 161-165
212 INDEX
References are to Pages

ENGLAND FALSE EVIDENCE AND PERJURY

Adverse authority 143 See Duties to Court
Advertising and solicitation 178
FEE SCHEDULES
Arguing for false inferences 152
Cab-rank rule 46-47 Generally 64-65
Code of Conduct 46 Bundesgebuhrenordunung fur Rechtsan-
Confidentiality 87 walte (BRAGO) 64-65
China 65
Engagement and appointment of counsel
46-47 European Union 64
See also United Kingdom I Germany
Italy 65 64-65
ESTONIA
Japan 65
Advertising and solicitation 178 Lodestar method 65
Judicial standards 194 Netherlands 65

EUROPEAN COURT OF JUSTICE Pactum de quota litis 64

Unites States 64-65
Attorney-client privilege 115, 119-120
FEES
EUROPEAN UNION (EU)
See Compensating Lawyers, Contingent
Admission in host state or country
16-18 Fees, Fee Schedules
Admission of migrant EU lawyer 16 FIDUCIARY DUTIES
Admission of migrant non-EU lawyer 18 Client trust accounts 31-32
Advertising and solicitation 176-179 Commingling funds 32
Bangalore principles 191-193
Handling of clients’ money 30-31
CCBE Code 29, 32-33, 35, 43-44, 47, 48, United States 30-32
51, 62-62, 67, 69, 86, 88, 104-105,
FINLAND
142-144, 156, 166, 176-177
Choice of law 35 Advertising and solicitation 176
Choice of law regarding fees 67 Program, educational 13
Commingling of funds 33 FOREIGN CORRUPT PRACTICES ACT
Conduct with regard to court proceed¬
(FCPA)
ings 142
Confidentiality 86-88 Generally 134-140
Conflict of interest 104-105 United States 134-135
Council of Bars and Law Societies of FRANCE
Europe (CCBE) 7, 29 Advertising and solicitation 177
Corporate whistleblowing 131 Confidentiality 85
Directives, 1977 and 1998 16, 17, 23, 24 Conflict of interest 100
Duty to other attorneys 166 Contingent fees 62
European Charter 191
Duty to other attorneys 165
Examination, state administered 13 45
Engagement and appointment of counsel
False evidence and client perjury 144
Fee schedules 64
Fee shifting 66-67
Fiduciary duties 32-33 Honoraire 62
Government provision of legal services Judicial standards 193
69
Lawyer independence and MDP 43
Imputed disqualification 109 No contact rule 157
Judicial independence 182 Program, educational 13
Lawyers associating in foreign jurisdic¬
tion 51 GENERAL AGREEMENT ON TRADE IN
SERVICES (GATS)
Lawyer independence and MDP 43-44
Malpractice and other controls 26 Generally 20-22
No contact rule 156 Corporate whistleblowing 132-133
Path for Admission in Home State 13 Domestic regulation provision 20-21
Practice, multijurisdictional law 12 Market access provision 22
Right to counsel in civil cases 72 Most favored nation provision 20-21
Role of Lawyer 7-8 National Treatment Provision 22
Relationship, client-attorney 29-30 Recognition provision 21
Substitution of council 47 Schedules of Specific Commitments
Withdrawal from representation 48 21-22
 INDEX
Reference* are to Page*

Gt RMANY ITALY Contd

Program, educational J 3 Withdrawal from representation 20 .30,
Admission of migrant non EG lawyer 18 2J.'i
Admission through bilateral treaties 18 48
JAPAN
Advertising and solicitation 178
Admission in host state or country
Boride gebuhrenordunung fur Rechtsan
DEI9
walu- BRAGG 64 bo
(Chime of law regarding f<•<•>» 67-68 Admission of lawyers19 from W'f O rnern
her countries
Confidentiality 87 Advertising arid solicitation 174 176
F schedule* 64
Par discipline 24 26
F 1*< shifting 66 P»a I' Regulations for Attorneys Duties 6
Judicial tarnlard* 1 9'; 1 90 )96 Choice of law 36 36
Lawyer independence and MDP 43 Conduct with regard to court proceed
GOVF RNME NT PROVISION OF LEGAL mgs 141 142
SERVICES (Confidentiality 88 80
(Conflict of interest 106 107, 110
Generally 66 71
CCBFC Code 69 Contingent fee . 63 64
(/Inna 70 71 Development of l>-gal Profession 6 6
fluty to other attorneys 166
European Gnion 00
Netherlands 70 FCngagerrient and appointment of counsel
46
Grilled States 70 Fo- schedules 66
Fee shifting 67
GREECE
Confidentiality 86 87 F oreign Service law 18
Program, educational 13 Japanese Federation of Bar Associations
Federation; 24 26
HUNGARY Judicial standards 107 201
.Judicial standards 10'/ 100 lawyers law of 1983 6
IN HOUSE COUNSEL I>-gal 'framing and Research Institute
14
Attorney-client privilege 114 130 Malpractice arid other controls 26
See also Confidentiality National bar examination 14
INDEPENDENCE Path for Admission in home state 14
Practicing Attorney* I -a w 24
See Judicial independence lawyer inde
Role of lawyer 6 7
(nrrideme and individual coun¬ Surer-* s fr-<-- L| 64
tries and rules
Training of lawyers 6
INDIA
JUDICIAL CONDUCT
Pro bo no legal service* 71 Accountability 184
IRELAND Article III mdej/enderice 183 187
Austria 193, 196
Advertising and solicitation 178
Right to counsel in civil case* 72 73 Bangalore principle* 191 193
(Civil law countries 182
Rules of conduct applicable for migrant
(Common lew countries 182
EG lawyers 23
Croatia 193
ITALY Czech Republic 194
Advertising and solicitation 177 Denmark 193
Confidentiality 86 87 FCstonia 194
Contingent fees. 62 FCuropean Charter 191
Duty to accept client 47 F.uroj/ean Gnion 186 190 193
Duty to other attorney* 166 F.x j/arte communication* 183, 187
France 193
False evidence and client perjury 144
Fee -schedules 66 Germany 193, 196 1%
F iduciary duties 33 Hungary 193 196
Judicial standards 104 Impartiality 181 182
Lawyer independence and MDP 43 Italy 194 196
No contact rule 167 160 Japan 197-201
Palmario 62 Judicial corruption 168 190
Program, educational 13 Judicial independence 162 188
l-atvia 193
Relationship, attorney client 20 30
214 _ INDEX
References are to Pages

JUDICIAL CONDUCT— Cont’d NO CONTACT RULE 156-159

Netherlands 194
Poland 193 NORWAY
Portugal 193 Advertising and solicitation 178
Relational protection Commingling funds 33
of independence
187
POLAND
Slovakia 193
Advertising and solicitation 179
Slovenia 194 Judicial standards 193
Spain 194
PORTUGAL
State court judges 185-186
Confidentiality 86
Statute on the Legal Remuneration of
Judicial standards 193
Hungarian Judges 195
Structural protection of independence Program, educational 13
187
PRACTICE, MULTIJURISDICTIONAL
Sweden 194
Admission to practice 12
Switzerland 193
European Union 12
Ukraine 194
PRO BONO LEGAL SERVICES
United States 182-188, 196, 201-205 Generally 71
Yugoslavia 194
ABA Model Rules 71
LATVIA India 71
Judicial standards 193 United States 71

LAWYER INDEPENDENCE AND MDP REGISTERED FOREIGN LEGAL CON¬

SULTANT (RFLC)
See Conflict of interest; Relationship,
See United States; California
client-attorney; individual coun¬
tries and rules
REGULATION OF FEES
LITHUANIA Choice of law regarding fees 67-68
Advertising and solicitation 175 Contingent fees 59-64
Court appointed lawyers 29 Fee schedules 64-65
Relationship, client-attorney 29 Fee shifting 66-67
REGULATION OF LAWYERS
LUXEMBOURG Generally 11
Confidentiality 86
Admission to Practice 11-22
Program, educational 13
Bar Discipline 23-25
MACEDONIA Choice of Law 34-36
Relationship, attorney-client 30 Fiduciary Duties 30-34
Withdrawal from representation 30 Malpractice and other Controls 25-26
Relationship, Client-Attorney 26-30
MALPRACTICE
RELATIONSHIP, CLIENT-ATTORNEY
Generally 25-26
Generally 26-30, 39-57
MEXICO
CCBE Code 29, 40-41
Fee shifting 66 Contingent fee arrangements 29
MULTIDISCIPLINARY PRACTICE Defining the lawyer-client relationship
39-45
(MDP) Duties upon Termination 28-29
See Lawyer independence and MDP Engagement and appointment of counsel
45-47
MULTI JURISDICTIONAL PRACTICE
See Practice, Multijurisdictional European Union 29-30
Foundational concepts and duties 40-42
NETHERLANDS Initiating and ending the lawyer-client
Government provision of legal services relationship 45-49
69 Lawyers associating in foreign jurisdic¬
Judicial standards 194 tion 49-57
Lawyer independence and MDP 43 Lawyer independence and MDP 42-44
Mandatory withdrawal 27
NEW ZEALAND Permissive withdrawal 27-28
Conflict of interest 107-108 Substitution of counsel 47
Imputed disqualification 110 Withdrawal from representation 48
 INDEX 215
References are to Pages

RELATIONSHIP, CLIENT-ATTORNEY SPAIN

— Cont’d Advertising and solicitation 177
United States 26-29, 42-43 Commingling funds 33
Confidentiality 86
REPRESENTATION OF LOW-INCOME Judicial standards 194
CLIENTS
Lawyer independence and MDP 43
Generally 69-80 Program, educational 13
Government provisions of legal services
Relationship, attorney-client 30
69-71 Withdrawal from representation 30
Pro bono legal services 71
SWEDEN
Right to counsel in civil cases 71-73
Advertising and solicitation 178
RIGHT TO COUNSEL IN CIVIL CASES
Imputed disqualification 109
Generally 71-73 Judicial standards 194
Canada 73
SWITZERLAND
European Union 72-73
! Judicial standards 193
Ireland 72-73
Switzerland 72 Lawyer independence and MDP 43
United States 71-72 Right to counsel in civil cases 72

ROLE OF LAWYER UKRAINE

Judicial standards 194
Civil Law System 2-3
Common Law System 2-3 UNITED KINGDOM (U.K.)
European Union 7-8 Advertising and solicitation 178
Government provision of legal services Confidentiality 91
69
Conflict of interest 100
Japan 5-7 Contingent
Russia 9-10 Fee shifting fees
66 61-62
United States 3-5
Loser pays rule 66-67
ROMANIA Migrant EU lawyers 23
Advertising and solicitation 179 Trial publicity 154-155
RUSSIA Uplifts 61-62
Witnesses 159-164
Advokatura 9
UNITED STATES (U.S.)
Judges 10
Notariat 9 Adverse authority 143
i Admission in host state or country
Procuracy 8-9 14-16
Role of Lawyer 8-10 16
RWANDA ] Admission of migrant non-U. S. lawyer
Confidentiality 91 Admission of migrant U.S. lawyer 15
Duty to other attorneys 165 | Admission through bilateral treaties 18
No contact rule 157 Advertising and Solicitation 170-173
American rule 66
SARBANES-OXLEY ACT OF 2002
Arguing for false inferences 152
Confidentiality 88-89 Article III independence 183-187
Corporate whistleblowing 131 Bar discipline 23
SCOTLAND California 52
Advertising and solicitation 178 Choice of law 34-35
Client trust accounts 31-32
SERBIA i Commingling funds 32
Fiduciary duties 33-34 Confidentiality 82-86, 90-95
Punishment, violation of fiduciary duties Conflict of interest 99-104, 110
34
Contingent Fees 59-62
Serbian Bar Association 33
Development, lawyers’ involvement 3
Serbian Lawyer Codex 33-34
j Duty of candor 141
SLOVAKIA
| Duty of competence 49-50
Advertising and solicitation 179 Duty to other attorneys 165-167
47
Judicial standards 193 Dutv to undertake representation 26-27,

SLOVENIA ! Engagement and appointment of counsel

Judicial standards 194 45-47
216 INDEX
References are to Pages

UNITED STATES (U.S.)— Cont’d UNITED STATES (U.S.)— Cont’d

Ex parte communications 183 Registered Foreign Legal Consultant
False evidence and client perjury 146 (RFLC) 52-53
Fee multipliers 61 Relational protection of independence
Fee schedules 64—65 187
Fee shifting 66-67 Relationship, client attorney 26-29
Fiduciary duties 30-32
Foreign Corrupt Practices Act (FCPA) Right to counsel in civil cases 71-72
134-135 Role of Lawyer 3-5
Self-governance 23
Government provision of legal services
69 State court judges 185-186
Structural protection of independence
Handling clients’ money 30-31 187
Interest on lawyer trust accounts
Substitution of council 47
(IOLTA) 31-32
Trial publicity 154
Judicial independence 182-188
Withdrawal from representation 48
Lawyers associating in foreign jurisdic¬ Witnesses 158
tion 49-57
Lawyer independence and MDP 42-43 WHISTLE-BLOWING
Malpractice and other controls 25
See Attorney-client privilege; European
Mandatory withdrawal from representa¬ Union; GATS
tion 27
Multistate Professional Responsibility WORLD TRADE ORGANZIATION
Examination (MPRE) 12
(WTO)
New Jersey Supreme Court’s Committee Admission of member country lawyers
on Attorney Advertising 173 in Japan 19
No contact rule 156-158 Agreement Establishing WTO 19
Non-discrimination 167
General Agreement on Trade in Services
Path for Admission in Home State 12-13
(GATS) 20-22
Permissive withdrawal from representa¬
tion 27-28 YUGOSLAVIA
Pro bono legal services 71 Confidentiality 91
Pro hac vice 15 Judicial standards 194

MAY 1 8 2010
 Global
Issues in

This book is part of the GLOBAL ISSUES SERIES. Each book

in this series contains materials designed to facilitate the
introduction of international, transnational and
comparative
law issues into basic law school courses. The goal of
this series
is to ensure that all law school graduates have sufficient famil
¬
iarity with the growing impact of non-domestic sources of law,
and the growing potential for transnational legal transactions

and disputes, to function in an era of increasing globalization.

In addition, introduction of international, transnational and

comparative law materials can enhance the students' under¬

standing of domestic law.

The philosophy behind this series may be best

summarized by Justice Stephen G. Breyer's statement that

"This world we live in is a world where it is out of date to teach

foreign law in a course called Foreign Law."