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June 01, 2015

Ethics: The Ethics of Global Litigation

Bruce A. Green

In a high-profile ruling last year, a New York federal judge restrained Ecuadorian plaintiffs from enforcing a multibillion-dollar judgment obtained in Ecuador against Chevron Corporation. The district judge found that the plaintiffs’ U.S. and Ecuadorian lawyers had engaged in fraudulent conduct, and he rejected their “‘this-is-the-way-it-is-done-in-Ecuador’ excuses.” Chevron Corp. v. Donziger, 974 F. Supp. 2d 362, 385–86 (S.D.N.Y. 2014). Regardless of the norms of foreign litigation, the judge found, U.S. litigators who work abroad must conform their professional conduct to basic U.S. legal norms.

What about the opposite side of the coin? Must U.S. litigators also be concerned about other countries’ professional norms? Or when working abroad, is it enough to know what is required of U.S. lawyers doing their work here?

No doubt, many U.S. transactional lawyers seek to understand foreign legal cultures because they negotiate business deals with lawyers and for clients around the world. But U.S. litigators might regard their own practices as essentially domestic. After all, U.S. litigators rarely appear in foreign courts on behalf of clients. That said, U.S. litigators increasingly interact with foreign lawyers and foreign legal systems in other ways that may suggest a need to understand other legal cultures and professional norms and how they differ from our own.

For instance, many U.S. litigators are members of international law firms with partners working in offices outside the United States and admitted to practice in their jurisdictions. The New York State Bar Association Committee on Professional Ethics has issued opinions identifying two reasons why the U.S. lawyers in such a firm must know the rules and regulations governing the firm’s foreign lawyers:

  • As an initial matter, a law partnership with foreign lawyers is allowed only if the U.S. lawyers ensure that their foreign counterparts have “education, training and ethical standards comparable to those of American lawyers.” N.Y. State Bar Ass’n Comm. on Prof’l Ethics, Op. 806 (2007).
  • Then, going forward, the U.S. lawyers have a supervisory responsibility “to ensure that particular actions of the foreign lawyers do not compromise the [U.S. lawyers’] ethical responsibilities.” N.Y. State Bar Ass’n Comm. on Prof’l Ethics, Op. 762 (2003). For example, if a U.S. lawyer receives information about a client’s past fraud that is confidential under the U.S. ethics rules, the information may not be shared with foreign lawyers who have a professional or legal obligation to report the client’s wrongdoing.

Aside from these organizational strictures, U.S. litigators often perform tasks abroad. They assist local lawyers or accompany U.S. witnesses who testify in foreign proceedings. They observe foreign proceedings to advise clients or gather information relating to U.S. clients and U.S. legal disputes. They conduct international arbitrations, mediations, or settlement negotiations. They meet with foreign witnesses and conduct investigations overseas.

Regardless of the task a U.S. lawyer performs, just as foreign lawyers working here must generally comply with the ethics rules of the relevant U.S. jurisdiction (Rule 8.5(b) of the ABA Model Rules of Professional Conduct), U.S. lawyers working abroad may be expected to meet the same professional expectations as local lawyers. These expectations may not be obvious. For example, litigators in the United States may prepare witnesses to testify, and ethical expectations and evidentiary rules make rehearsing testimony common. But what occurs here may be regarded as impermissible “witness proofing” elsewhere. In England, barristers may not coach witnesses or help them rehearse or practice their testimony, and the same is generally true for lawyers in civil law countries, where the tradition is for witnesses to testify in the form of a narrative.

In addition, clients may suffer if U.S. litigators do not understand the professional expectations of foreign legal cultures and legal systems. For example, U.S. litigators build their practices around their understandings of the protections afforded by the attorney-client privilege and confidentiality rules under U.S. law. The extent to which information is shared with clients, co-counsel, or counsel for co-parties depends on whether the information will remain confidential. U.S. litigators must be careful about sharing otherwise confidential information with foreign clients and foreign lawyers because the other jurisdiction’s law may not adequately protect the information. Recognizing the benefits of cross-cultural interchange when it comes to legal ethics and practice, the International Association of Legal Ethics sponsors a biennial International Legal Ethics Conference. The next conference will take place at Fordham Law School in July 2016.

The globalization of legal practice presents a potential challenge for all lawyers—litigators no less than business lawyers. It is hard to master one’s own professional rules and harder still to assimilate those of foreign legal cultures. No doubt, many law firms and individual lawyers already take steps on their own to acquire the necessary cross-cultural professional understandings. Ideally, in coming years, as international commerce grows and the world becomes even smaller, both law schools and the bar will expand their support for lawyers’ efforts by devoting increasing resources to studying and teaching the ethics of global law practice. q

Bruce A. Green

The author is the Louis Stein Chair at Fordham Law School, where he directs the Stein Center for Law and Ethics.