Step 1: Recognize the Gravity of the Situation
Absent experienced legal oversight, even garden-variety business activity (for example, a company’s payment of employees based in Russia) could potentially run afoul of current sanctions and export controls. Failure to abide by the relevant restrictions could trigger criminal and/or civil penalties. It could also result in devastating reputational damage undermining the client’s and/or lawyer’s relationships with government officials, stockholders, and the general public. Accordingly, lawyers must make compliance a top priority and should advise their clients to do the same.
Step 2: Evaluate Whether Your Client Has Any Ties to Russia
Lawyers should promptly evaluate whether their clients have any investments or other business dealings broadly relating to Russia. This could include anything from having Russian employees on payroll, to actively negotiating a deal implicating Russian financing or assets, to holding real-estate leases outside of Russia co-signed by Russian citizens. Multiple U.S. states have even taken a stand against the sale of Russian vodka. Lawyers advising larger clients—who may have their own in-house compliance teams—should at a minimum confirm with the client’s in-house counsel that someone at the company is undertaking a thorough investigation.
Step 3: Confirm Whether Current Restrictions Impact Your Client (and Whether You Are Equipped to Conduct This Analysis)
After compiling (or receiving) a fulsome list of the client’s Russia-related dealings, the lawyer should confirm the applicability of current sanctions and export controls to each scenario.
In doing so, the lawyer must abide by Model Rule 1.1 (competence), which states: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably required for the representation.” In determining whether a lawyer has the requisite knowledge and skill to advise on a particular matter, courts look to factors including the relative complexity and specialized nature of the matter, the lawyer’s training and experience in the field in question, the preparation and study the lawyer is able to give the matter, and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question. Given the rapidly evolving and incredibly nuanced nature of Russia-related sanctions and export controls, lawyers should strongly consider seeking guidance from practitioners experienced in this space. For similar reasons, lawyers must resist pressure to offer off-the-cuff advice, and should ensure that they do their due diligence before rendering any recommendation.
If a lawyer does decide to get input from another attorney, he or she should bear in mind Comment 6 to Model Rule 1.1: “Before a lawyer retains or contracts with other lawyers outside the lawyer’s own firm to provide or assist in the provision of legal services . . . the lawyer should ordinarily obtain informed consent from the client and must reasonably believe that the other lawyers’ services will contribute to the competent and ethical representation of the client. See also Rules 1.2 (allocation of authority), 1.4 (communication with client), 1.5(e) (fee sharing), 1.6 (confidentiality), and 5.5(a) (unauthorized practice of law).”
Step 4: Confirm Whether Current Restrictions Impact Your Ability to Represent the Client
In some cases, sanctions and export controls may undercut not only a client’s ability to proceed with “business as usual,” but also the lawyer’s ability to continue representing the client. Law firms Sidley Austin and Venable recently made headlines with their decisions to drop Russian-owned banks as clients.
Model Rule 1.16 (declining or terminating representation) provides that a lawyer shall not represent a client (or, if representation has already commenced, shall withdraw from the representation) if the representation “will result in violation of the rules of professional conduct or other law” [emphasis added]. Current sanctions and export controls targeting Russia certainly qualify as such “other law[s].” Model Rule 1.16 also outlines several scenarios in which a lawyer may withdraw, including where “the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement,” “the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client,” or “other good cause for withdrawal exists.” This leaves the lawyer room to withdraw even if current restrictions do not directly prohibit the representation.
Notwithstanding a lawyer’s obligation or discretion to withdraw, the lawyer must make sure to comply with various requirements triggered by withdrawal, including (among others) giving reasonable notice and, if applicable, seeking the tribunal’s permission to withdraw. Lawyers may also have up-the-ladder reporting obligations if, for example, an employee indicates they do not intend to comply with your advice. See Model Rules 1.13 (organization as client) and 1.6(b) (confidentiality).
Step 5: Walk Away from the Television
Taking the above recommendations together, it should be apparent that attorneys must act urgently to identify, resolve, and/or “refer out” issues that Russia-related sanctions and export controls may pose for lawyers or their clients. The axiom that “ignorance of the law is no excuse” holds especially true for lawyers, even though the legal landscape may be changing by the minute. Lawyers must strike a balance between keeping apprised of the ongoing conflict and seeking out the specific information necessary to competently represent their clients.
Margaret Monihan Toohey is an attorney at Jones Day in Cleveland, Ohio.