General Practice, Solo & Small Firm DivisionMagazine
A Lawyer’s Guide to Working with Foreign Clients and Counsel
BY RAQUEL A. RODRIGUEZ
Matters involving foreign clients or jurisdictions can be quite exciting, even though they still require your usual legal skills. However, plenty of pitfalls await the lawyer who thinks that international practice is just business as usual.
Whether you represent a foreign client in a local property purchase or ask a foreign lawyer to file suit abroad in a multimillion dollar case, the following ten basic rules can help you avoid miscommunication and misunderstandings that could sabotage an otherwise universal success.
1. Use Plain English
Most problems involving foreign clients or counsel arise because we assume that they speak and understand English as we do. Even when dealing with folks in England, home of our mother tongue, this is a dangerous assumption. Avoid using jargon, slang, or hypertechnical language and stick to plain English. If you absolutely must use technical words, be sure to explain them. With clients or lawyers for whom English is a second or third language, speak slowly and occasionally repeat the same statement in different ways to make sure you are getting your point across.
2. Clarify Your Comprehension
Just as your clients or local counsel may misunderstand your use of the English language, you may misunderstand them. It is helpful to adopt an active listening technique, paraphrasing what was said in your own words to make sure you interpreted correctly. If you introduce this politely with , "Let me make sure I understand," you are unlikely to give offense.
3. Educate Yourself
In order to represent a client or instruct a foreign lawyer most effectively, it is important to learn as much as you can about their country and culture. There are several reasons for this. One is that it can help you understand subtle nonverbal communication that may contradict what your contact is saying, or prevent you from misreading body language.
For example, in some cultures it is considered impolite to look someone directly in the eye, whereas we in the United States often regard failure to make eye contact as a sign of dishonesty or untrustworthiness. If you don’t know about your client’s cultural background, you might think the client is lying to you. In other cultures, people say "yes" out of politeness even when they mean "no"; you might think that your local counsel agrees with everything you are saying, even when she firmly believes you are wrong. So it is a good idea to test any "yes" answer by asking a follow-up question, such as "How should we go about doing X?" Cultural sensitivity also will help you avoid offending foreign clients or lawyers. In many Asian and Middle Eastern countries, pointing the soles of your feet or shoes at others or patting them on the head is a grave insult—a quick way to ruin a relationship.
Understanding the other country’s legal system also will help you be a better lawyer. In most non-English-speaking countries, civil law or a system other than common law prevails. Lawyers or clients in such countries are unlikely to appreciate our reliance on case law or our references to jury verdicts unless you can explain their importance or find a way to make these relevant to their system.
4. Don’t Be the "Ugly American"
As a corollary to Rule 3, observe the social niceties customary in the foreign lawyer’s or client’s country. These include the use of surnames instead of given names and maintenance of a certain degree of formality we normally do not use in the United States.
Hierarchical structures, and the attention paid to them, may differ as well. For example, in many Asian countries it is customary to address one’s comments to the elder of a group. Younger lawyers, especially women, should not be surprised or offended, therefore, when they sit across the table from a client or local lawyer but find that answers to questions they pose are directed at the older member of their team.
Business card exchanges can be equally dicey. Asia again is a case in point. When offering your business card, custom dictates that you hold it carefully between the fingertips of both hands, with the print facing the other person, who will accept it with both hands and take a long look at it before putting it away. You should do the same when offered someone’s card.
5. Explain the U.S. System
This is especially necessary in matters of court protocol and ethics requirements. You may find that, thanks to the miracle of cable and satellite TV, your new client or foreign counsel has learned about the U.S. legal system from watching L.A. Law or Ally McBeal. You will therefore have to spend at least a few minutes explaining that in the real world, you don’t file a lawsuit and go to trial within 60 minutes, make weird sounds in court, or set up a hot date with the judge handling your case.
It is equally important to explain what is expected in the United States. This is especially true in litigation. Certain countries, such as France, allow parties to withhold unfavorable documents. A Rule 11 or Rule 37 hearing is not a good time to explain for the first time that your client or referring counsel must turn over everything that is not privileged or exempt under our rules, even if it hurts their case. Even a system as similar to ours as the English legal system requires your alertness. For example, "Buyer beware" is presently very much the rule in English conveyancing. Failure to explain potential fraud liability for nondisclosure in a U.S. transaction could result in a fraud suit for your client and malpractice for you. Lawyers beware!
6. Money Matters
As with domestic clients and local counsel, it is important to agree clearly on the amount and basis for compensation up front, in writing. It is vital to get the retainer up front and not let the client or referring counsel get behind on payment of your fees and costs. Otherwise, you may end up racking up thousands of dollars in fees that you may never collect from abroad.
Similarly, understand that you may inadvertently be on the hook yourself if the client you refer to a foreign lawyer fails to pay that lawyer’s fees. It is widely accepted international practice (encapsulated in the International Bar Association’s voluntary code) that, unless otherwise specified, a referring lawyer is responsible for the instructed lawyer’s fees and costs if the client fails to pay. Some courts have adopted this principle. However, don’t draw too much comfort from this practice when you are the billing lawyer, because the most you will gain is a right to sue in a foreign jurisdiction on a contract claim or to enforce a U.S. judgment. Good luck on collecting.
If you are handling a matter on a basis other than an hourly fee, understand that most other countries do not allow lawyers to charge contingency fees in litigation matters. If you have been retained on such a basis, make sure that you protect yourself. Insert provisions in the retainer letter that your local state law, without regard to conflict of law rules, governs any dispute between you and your client, and that the venue for resolution of any dispute will be a state or federal court in your jurisdiction. The client also should expressly agree to personal jurisdiction over himself or herself in the event that you have to sue the client yourself. You do not want to have to get a judge in your client’s home country to rule whether you can collect your hard-earned fees.
7. Be Sensitive to Time
As a general rule, things usually take longer than we plan. This is doubly true when dealing with many foreign countries. In some countries, an appointment for a certain time may mean that your meeting will start minutes or even hours later. Always take along some work or reading material and learn to grin and bear it. Make sure your client understands that in the United States, judges expect everyone to be on time. In Switzerland, Germany, Scandinavian, or Asian countries, however, you can expect others to be punctual, if not early. Make sure you are, too. These time rules also apply to correspondence, court procedures, and so on. If you require a sworn declaration or other paper prepared abroad for use in your jurisdiction, give yourself and your foreign counterparts plenty of time to get the work done.
Also, be sensitive to holiday schedules abroad. In some countries, you may not find anyone at the office from Christmas until well after New Year’s Day. In Asia and the Middle East, the holiday schedule is quite different from that in most western countries.
8. Avoid "Overlawyering"
One of the most common complaints I hear from foreign lawyers and clients is that we American lawyers tend to worry too much about covering every contingency. I have even heard the word "pedantic" when used to describe the American lawyer’s approach to drafting.
Most other countries do not have the same lawsuit culture that we have; in many places it is virtually unheard of to sue a lawyer for malpractice. (In fact, in India and most Latin American countries, the concept of malpractice insurance is completely alien.) Even in countries where professional indemnity insurance is mandatory, such as England, lawyers are much more relaxed about drafting documents and negotiating deals than we are in America. Understanding that viewpoint can make it much easier to work constructively with a foreign client or lawyer.
9. Stay Out of Jail
Did you hear the one about the two American lawyers who almost ended up in a German jail because they tried to take a deposition? It’s true. The litigation procedure we regard as routine can be a crime in some countries. Countries with a civil law tradition typically entrust the questioning of witnesses to judges (often called investigating magistrates), and woe to the lawyer who runs afoul of their prerogative.
Discovery of documents also can be a trap for the unwary. Countries such as France have very strict laws of privacy and confidentiality. A corporation that maintains an office in that country could run afoul of such laws by turning over documents that we otherwise would consider routine under our broad discovery rules. Therefore, even when dealing with voluntary witnesses, it is important to check with local counsel to make sure that neither you, nor your client, nor the witness is committing a crime, however well-intentioned the actions are.
U.S. laws also can be a minefield. In some countries, bribing or doing special favors for local politicians is just a normal cost of doing business. In the United States, the Foreign Corrupt Practices Act makes it a criminal offense to pay a bribe, directly or indirectly, to a foreign official. The rest of the world is catching up to that view; however, the practice is still pervasive in a number of countries. Be very careful that your clients do not run afoul of the FCPA and that your local counsel does not do anything that could subject you to liability. If you see large, unexplained charges on a bill, you are well advised to be on guard.
10. Rules for Women
Although women lawyers have worked hard and largely succeeded in achieving equal treatment in America, the situation is not quite so rosy for our sisters abroad. We may have to be circumspect when working with those from countries where women lawyers are rare or absent. This does not mean that a male lawyer must be assigned to the case; but, once again, you may have to prove yourself and not assume that you will be accepted immediately.
Even in countries where the culture and law recognize or mandate gender equality, women may still be expected to "act like ladies" and allow men to "act like gentlemen" by opening doors, pulling out chairs, and paying for meals. Don’t get too worked up if a courtly gentleman kisses your hand upon meeting you. However, be on guard when out on the town alone with a client who comes from a country where women are still expected to "entertain" beyond a normal business dinner. Sexual harassment laws and awareness have not really caught on in most other countries. A single woman might consider wearing a wedding band on a business trip to such a country, which makes her a less obvious target for unwanted attentions.
You also should observe local standards of attire. Modesty and formality prevail in many countries, so double-check your wardrobe when traveling to or meeting with a client from such a country. Despite the popularity of pants for women in American corporate culture, their acceptance elsewhere is uneven. Refer to Rule 3 when in doubt.
These rules and basic common sense will get you off to a good start with foreign clients or counsel, who will appreciate your thoughtfulness and courtesy long after they have forgotten the legal matter that brought you together. And loyalty is still what builds successful practices in any language. CL
Raquel A. Rodriguez is a shareholder in the international law firm Greenberg Traurig, based in Miami, Florida. Previously, she was Executive Director of Multilaw Multinational Association of Independent Law Firms and president of her own consulting company. She can be reached at email@example.com.