A California litigation attorney recently asked me if he could represent his American friend living in France. French law can be divided into two main categories, droit privé (private law) and droit public (public law). The matter involved a private contractual dispute with a French corporation. The attorney was not concerned about whether he would be in violation of French law by representing his friend without having the requisite qualifications to practice law in France, but rather he was inquiring as to whether he would be in violation of California law by representing a friend living in a foreign jurisdiction. Both the California Rules of Professional Conduct and the American Bar Association Model Rules provide guidance on this issue. However, this article will focus on the American Bar Association Model Rules.
American Bar Association Model Rule 8.5 provides: "A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer's conduct occurs . . . A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct." In other words, a U.S. attorney is subject to the same professional code of conduct in a foreign jurisdiction as they would be in the U.S.
ABA Model Rule 1.1 provides: "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." Therefore, a U.S. attorney who seeks to represent a client in a foreign jurisdiction must be competent in the law of the foreign jurisdiction to satisfy their Model Rule 8.5 ethical duty of competency.
How then does a U.S. attorney satisfy this duty of competency? The most obvious way would be to meet the requisite qualifications to practice law in the foreign judication. In France, this would require passing the assessment examination under Article 100 of the Decree of November 27, 1991. Certain states recognize certification in International Law. However, there is no clear guidance as to whether such certification satisfies the duty of competency in a specific foreign jurisdiction. Thus, obtaining qualification to practice in the foreign jurisdiction would be the most prudent course of action.
In sum, the rules of professional conduct follow the U.S attorney abroad. If you are a U.S attorney and you provide representation in dispute arising under the laws of a foreign jurisdiction with which you are not familiar, you will likely be in violation of your domestic professional duty of competence and can be subject to discipline domestically.
