COMPARATIVE EUROPEAN AND U.S. STANDARDS …apps.americanbar.org/labor/lel-aba-annual/papers/2003/porter.pdf · The outline below provides a general overview of the rules, codes, and

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© 2003 American Bar Association http://www.bna.com/bnabooks/ababna/annual/2003/porter.doc

2003 AMERICAN BAR ASSOCIATION MEETING

SECTION OF LABOR AND EMPLOYMENT LAW

AUGUST 9-12, 2003

SAN FRANCISCO, CALIFORNIA

PROGRAM

COMPARATIVE EUROPEAN AND

U.S. STANDARDS OF CONDUCT FOR LAWYERS

August 12, 2003 2:00-3:30 p.m.

Timothy L. Porter Vice President-Law

AT&T Corp. One AT&T Way, Rm. 3A141 Bedminster, NJ 07921

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INTRODUCTION The outline below provides a general overview of the

rules, codes, and organizations that govern the

professional conduct of lawyers in the United States and

Europe. Generally, the information focuses on the United

States’ American Bar Association’s (“ABA”) Model Rules of

Professional Conduct (“MRPC”) and Model Code of

Professional Responsibility (“MCPR”), and the Council of

the Bars and Law Societies of the European Union’s (“CCBE”)

Common Code of Conduct, and certain European Parliament

Directives.

It should be noted that the ABA’s MRPC and MCPR act as

guides for all fifty (50) states’ government and bar

associations to formulate and adopt their own Rules.

Likewise, European Union (“EU”) countries’ bar

organizations and law societies promulgate their own rules

and regulations affecting the resident attorneys practicing

within their jurisdictions. The CCBE Common Code of

Conduct, which is recognized by all European Union Member

countries, applies to the conduct lawyers in the context of

cross-border advocacy, which is prevalent in EU countries.

As stated above, the outline below provides only an

overview of rules of professional conduct, and the reader

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is advised to check each state or country’s local codes or

rules for the answers to specific questions.

I. UNITED STATES OF AMERICA

A. FIFTY (50) STATES

1. One Type of Lawyer

2. Each State Promulgates Rules Based On:

a. MRPC

i. Model Rules (“RPC”)

b. MCPR (three sections)

i. Canons ii. Ethical Considerations (“EC”) iii. Disciplinary Rules (“DR”) c. Exception-California

i. Does not follow MRCP or MCPR

3. State Ethics Opinions Published By:

a. State Supreme Court

b. State Bar Association

B. AMERICAN BAR ASSOCIATION (“ABA”)1

One hundred lawyers representing twenty-one

states founded the ABA on August 21, 1878. At the time,

neither a code of ethics nor any national organization for

1 The source for the information below is the ABA Website: http://www.abanet.org/media/overview/phistory.html.

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lawyers existed. The ABA’s mission statement, today, is

"to be the national representative of the legal profession,

serving the public and the profession by promoting justice,

professional excellence and respect for the law." The ABA

now has more than 400,000 members.

1. Structure2

a. House of Delegates b. Board of Governors

c. Officers d. Sections, Divisions, Committees, Task

Forces, Forums and Conference Groups

C. MODEL RULES OF PROFESSIONAL CONDUCT (“MRPC”)

MRPC, 2003 EDITION TABLE OF CONTENTS 3

1. The Client-Lawyer Relationship

2. Addressing issues of competence, diligence, communication, fees, confidentiality, conflict of interest, safekeeping property, declining representation, sale of a law practice

3. The Lawyer as Counselor

4. The lawyer's role as advisor and intermediary

5. The Lawyer as Advocate

6. On meritorious claims, expediting litigation, fairness and impartiality, trial publicity, the lawyer as witness, special responsibilities of a prosecutor

7. Transactions with Persons Other than Clients

2 ABA Website at: http://www.abanet.org/media/overview/pstructure.html. 3 Per ABA Website at: http://www.abanet.org/wcsstore/toc/5610166-toc.html.

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8. Dealing and communicating with third parties and unrepresented persons

9. Law Firms and Associations

10. Examining the right to practice and your responsibilities towards partners, associates, and nonlawyer assistants, unauthorized practice of law, restrictions on right to practice

11. Public Service

12. Pro bono service and other community activities

13. Information about Legal Services

14. Advertising and other communications with prospective clients

15. Maintaining the Integrity of the Profession

16. Disciplinary and misconduct matters, including information on political contributions to obtain legal engagements or appointments by judges

1. Specific Rules of Interest4

a. Rule 1.5 Fees (a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses… (b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client. (c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement

4 Model Rules of Professional Conduct (2002 ed.), Copyright © 2002 by the American Bar Association.

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shall be in a writing signed by the client and shall state the method by which the fee is to be determined… (d) A lawyer shall not enter into an arrangement for, charge, or collect:

(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or (2) a contingent fee for representing a defendant in a criminal case.

(e) A division of a fee between lawyers who are not in the same firm may be made only if:

(1) the division is in proportion to the services performed by each lawyer or, each lawyer assumes joint responsibility for the representation; (2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and (3) the total fee is reasonable.

b. Rule 1.7 Conflict of Interest: Current Clients5

(a) Except as provided in paragraph (b), 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 by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(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

5 It is noteworthy that Rule 1.8 sets forth specific rules regarding conflicts of interest concerning current clients.

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assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing.

c. Rule 1.9 Duties To Former Clients6

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client

(1) whose interests are materially adverse to that person; and (2)about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

d. Rule 5.4 Professional Independence of a Lawyer (a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:

(1) an agreement by a lawyer with the lawyer's firm, partner, or associate may provide for the payment of money, over a reasonable period of

6 Rules 1.10 and 1.11 set forth additional rules regarding conflicts of interest relating to the imputation of a conflict and special rules for former and current governmental officers and employees.

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time after the lawyer's death, to the lawyer's estate or to one or more specified persons; (2) a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may, pursuant to the provisions of Rule 1.17, pay to the estate or other representative of that lawyer the agreed-upon purchase price; (3) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement; and (4) a lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained or recommended employment of the lawyer in the matter.

(b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law. (c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services. (d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:

(1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration; (2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation; or (3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.

e. Rule 5.5: Unauthorized Practice of Law;

Multijurisdictional Practice of Law7

7 See, infra, section on Multijurisdictional Practice of Law (“MJP”)/ Unauthorized Practice of Law (“UPL”).

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D. MODEL CODE OF PROFESSINAL RESPONSIBIITY (“MCPR”)

Canon 1 a lawyer should assist in maintaining the integrity and competence of the legal profession

Canon 2 a lawyer should assist the legal profession in fulfilling its duty to make legal counsel available Canon 3 a lawyer should assist in preventing the unauthorized practice of law Canon 4 a lawyer should preserve the confidences and secrets of a client Canon 5 a lawyer should exercise independent professional judgment Canon 6 a lawyer should represent a client competently Canon 7 a lawyer should represent a client zealously within the bounds of the law Canon 8 a lawyer should assist in improving the legal system Canon 9 a lawyer should avoid even the appearance of professional impropriety

E. MULTIJURISDICTIONAL PRACTICE OF LAW (“MJP”)/ UNAUTHORIZED PRACTICE OF LAW (“UPL”) “Multijurisdictional practice of law occurs whenever a

lawyer renders legal services in a jurisdiction other than

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one in which he maintains a regular office.”8 Although what

constitutes the “practice of law” may be difficult to

ascertain, at the very least it includes rendering advice

to others regarding their legal rights or responsibilities

involving their particular circumstances. It is unethical

to practice law in a jurisdiction in which a lawyer is not

licensed to practice. In a frequently cited case,

Birbrower, Montalbano, Condon & Frank, P.C. v. The Superior

Court, 17 Cal. 4th 119 (Cal. 1998), New York attorneys were

precluded from collecting legal fees for arbitration work

they performed for their California client. The court held

that the plaintiff law firm engaged in the UPL by

performing work in California when it was not licensed to

practice in that state.

In today’s age, attorneys are routinely asked to

provide legal advice to their national or global corporate

clients concerning a variety of different issues involving

different states’ or countries’ laws. Each state’s

code/rules of professional conduct addresses, in one form

or another, MJP and the UPL. While some states have

relaxed the rules regarding MJP, other states, perhaps

concerned their resident lawyers will lose work to out of

8 Staying Out of Trouble: What Every Attorney Must Know About Ethics; Outline of Developments in Multijurisdictional Practice, Richard Cashman, 127 PLI/NY 33, 35 (November 13, 2002).

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state lawyers, have tightened up their laws making the

admission to practice more restrictive.

Recognizing the need to address this issue, the ABA,

in 2000, organized the Commission on Multijurisdictional

Practice. In August 2002, the Commission issued its report

“and a series of recommendations for the adoption of rules

facilitating the practice of law across state lines.”9 The

Commission set forth ten (10) recommendations, including a

revision of Model Rule 5.5 concerning the UPL and MJP. The

recommendation was adopted and MRPC 5.5 was amended as

follows:10

(a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so. (b) A lawyer who is not admitted to practice in this jurisdiction shall not:

(1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.

(c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:

(1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;

9 Id. at 38. 10 Prior to the 2002 amendment MRPC 5.5 stated: A lawyer shall not: (a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or (b) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.

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(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized; (3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or (4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice.

(d) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that:

(1) are provided to the lawyer's employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission; or (2) are services that the lawyer is authorized to provide by federal or other law of this jurisdiction.

The Commission, in its 2002 Report, also recommended

two (2) Model Rules regarding foreign country lawyers. The

first recommendation calls for the Licensing of Legal

Consultants and the second recommendation proposes

permitting admission by foreign lawyers in the same manner

set forth in amended Rule 5.5 of the MRPC.11 However, the

11 In New York, 22 NYCRR Section 521.1 addresses this issue.

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practical application of these rules, if and when they are

adopted by states, remains to be seen.

II. EUROPE A. EUROPEAN UNION (“EU”) COUNTRIES Type(s) of Lawyer(s) 1. Austria i. Rechtsanwalt (advocate/attorney)

ii. Notar (notary) iii. Staatsanwalt (public prosecutor) iv. Wirtschaftstreuhande(independentaccountants) v. Patenwalt (patent lawyers)

2. Belgium i. Avocat (advocate/lawyer)

ii. Notaire (notary) iii. Huissier de Justice (bailiff) iv. Avocats á la Cour de Cassation v. Juriste d'entreprise (in-house lawyer)

3. Denmark i. Advokat (advocate)

ii. Bailiffs (pantefogeder) 4. Finland i. Advocate (advokater)

5. France i. Avocats (advocates) ii. Notaires (notaries) iii. Huissiers (bailiffs) iv. Specialized Practitioners

6. Germany i. Rechtsanwalte (advocate/attorney)

ii. Notare (notary) iii. Gerichtsvollzieher

7. Greece i. dikigoros

ii. Simvolaiogoros (public notary) iii. Dikastikos Epimelitis (Court Bailiff)

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iv. Dikolavos (unqualified advocate)

8. Ireland i. Solicitors ii. Barristers 9. Italy

i. Avvocato ii. Praticante Legale (apprentice lawyer) iii. Notaio (Notary Public)

10. Luxembourg i. Avocat (advocate) ii. Notaire (notary) iii. Huissiers de Justice (bailiffs)

11. the Netherlands

i. Adcocaat (advocate) ii. Notaris (notary) iii. Belastingadviseur/Fiscalisten (tax adviser) iv. Beurwaarder (bailiff / process server)

12. Portugal i. Advocates (advogados) ii. Solicitador iii. Notario and Conservador

13. Spain i. Advocate (abogado) ii. Procurator (procurador) iii. Notary (notariado) iv. Registrars (registradores)

14. Sweden i. Advocate (Advokat) 15. United Kingdom (England and Wales; Scotland;

Northern Ireland) i. Solicitor ii. Barrister

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B. CCBE12

“Created in 1960, the Council of the Bars and Law

Societies of the European Union (CCBE) is the officially

recognised representative organisation for the legal

profession in the European Union (EU) and the European

Economic Area (EEA): Rechtsanwalt (Austria, Germany and

Liechtenstein), Avocat, Advocaat, Rechtsanwalt (Belgium),

Advokat (Denmark, Norway and Sweden), Asianajaja (Finland),

Avocat (France), Dikigoros (Greece), Lögmaður (Iceland),

Barrister or Solicitor (Ireland and United Kingdom),

Avvocato or Procuratore (Italy), Avocat-Avoué, Rechtsanwalt

(Luxembourg), Advocaat (The Netherlands), Advogado

(Portugal), Advocate or Solicitor (Scotland), Abogado

(Spain). The CCBE is incorporated in Belgium as an

International non-profit-making association. The CCBE

liases between the Bars and Law Societies from the Members

States of the European Union and the European Economic

Area. It represents all such Bars and Law Societies before

12 All EU Member countries are full Members of the CCBE; Iceland, Liechtenstein, and Norway, although not mentioned below, are also full members of the CCBE. Several other countries, including the Czech Republic, Hungary, Poland, Romania, Switzerland and Turkey are “Observer Members” of the CCBE.

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the European institutions, and through them some 500,000

European lawyers.” 13

1. Code of Conduct for Lawyers in the European

Union14

Originally adopted in 1988; Amended in 1998 and again

on December 6, 2002.15

TABLE OF CONTENTS16

1. PREAMBLE 1.1. The Function of the Lawyer in Society 1.2. The Nature of Rules of Professional Conduct 1.3. The Purpose of the Code 1.4. Field of Application Ratione Personae 1.5. Field of Application Ratione Materiae 1.6. Definitions 2. GENERAL PRINCIPLES 2.1. Independence 2.2. Trust and Personal Integrity 2.3. Confidentiality 2.4. Respect for the Rules of Other Bars and Law Societies 2.5. Incompatible Occupations 2.6. Personal Publicity 2.7. The Client's Interest 2.8. Limitation of Lawyer's Liability towards his Client 3. RELATIONS WITH CLIENTS 3.1. Acceptance and Termination of Instructions 3.2. Conflict of Interest 3.3. Pactum de Quota Litis 3.4. Regulation of Fees 3.5. Payment on Account 3.6. Fee Sharing with Non-Lawyers

13 Council of the Bars and Law Societies of the European Union Website at: http://www.ccbe.org/en/presentation_en.htm 14 The entire Code can be found on the CCBE’s Website at: http://www.ccbe.org/doc/En/code2002_en.pdf. 15 A table of the National Situations Regarding the CCBE Code of Conduct (indicating the State of the CCBE Code of Conduct in Member States), can be found at: http://www.ccbe.org/doc/En/tabl_transp_deonto_en.pdf 16 CCBE’s Website at: http://www.ccbe.org/doc/En/code2002_en.pdf.

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3.7. Cost Effective Resolution and Availability of Legal Aid 3.8. Clients funds 3.9. Professional Indemnity Insurance 4. RELATIONS WITH THE COURTS 4.1. Applicable Rules of Conduct in Court 4.2. Fair Conduct of Proceedings 4.3. Demeanour in Court 4.4. False or Misleading Information 4.5. Extension to Arbitrators Etc. 5. RELATIONS BETWEEN LAWYERS 5.1. Corporate Spirit of the Profession 5.2. Co-operation Among Lawyers of Different Member States 5.3. Correspondence Between Lawyers 5.4. Referral Fees 5.5. Communication with Opposing Parties 5.6. (Deleted by decision of the CCBE Plenary Session in Dublin on December 6th, 2002) 5.7. Responsibility for Fees 5.8. Training Young Lawyers 5.9. Disputes amongst Lawyers in Different Member States

a. Specific Sections of Interest17

i. 1.3. The Purpose of the Code

1.3.1. The continued integration of the European Union and European Economic Area and the increasing frequency of the cross-border activities of lawyerswithin the European Economic Area have made necessary in the public interest the statement 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. A particular purpose of the statement of those rules is to mitigate the difficulties which result from the application of double deontology as set out in Article 4 of the E.C. Directive 77/249 of 22nd March 1977.

1.3.2. The organisations representing the legal

profession through the CCBE propose that the rules

17 Id.

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codified in the following articles: be recognised at the present time as the expression of a consensus of all the Bars and Law Societies of the European Union and European Economic Area; be adopted as enforceable rules as soon as possible in accordance with national or EEA procedures in relation to the cross-border activities of the lawyer in the European Union and European Economic Area; be taken into account in all revisions of national rules of deontology or professional practice with a view to their progressive harmonisation. They further express the wish that the national rules of deontology or professional practice be interpreted and applied whenever possible in a way consistent with the rules in this Code. After the rules in this Code have been adopted as enforceable rules in relation to his cross-border activities the lawyer will remain bound to observe the rules of the Bar or Law Society to which he belongs to the extent that they are consistent with the rules in this Code.

ii. 1.5. Field of Application Ratione Materiae

Without prejudice to the pursuit of a progressive harmonisation of rules of deontology or professional practice which apply only internally within a Member State, the following rules shall apply to the cross-border activities of the lawyer within the European Union and the European Economic Area. Cross-border activities shall mean:

(a) all professional contacts with lawyers of Member States other than his own;

(b) 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.

iii. 1.6. Definitions

In these rules:

"Home Member State" means the Member State of the Bar or Law Society to which the lawyer belongs.

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"Host Member State" means any other Member State where the lawyer carries on cross-border activities.

"Competent authority" means the professional organisation(s) or authority(ies) of the Member State concerned responsible for the laying down of rules of professional conduct and the administration of discipline of lawyers. iv. 2.1. Independence

2.1.1. The many duties to which a lawyer is subject require his absolute independence, free from all other influence, especially 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 in order to please his client, the court or third parties.

2.1.2. This independence is necessary in non-

contentious matters as well as in litigation. Advice given by a lawyer to his client has no value if it is given only to ingratiate himself, to serve his personal interests or in response to outside pressure.

vi. 2.3. Confidentiality

2.3.1. It is of 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 information on a basis of confidence. Without the certainty of confidentiality there cannot be 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.

iv. 2.4. Respect for the Rules of Other Bars and Law

Societies

Under the laws of the European Union and the European Economic Area a lawyer from another Member

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State may be bound to comply with the rules of the Bar or Law Society of the Host Member State. Lawyers have a duty to inform themselves as to the rules which will affect them in the performance of any particular activity. Member organisations of CCBE are obliged to deposit their codes of conduct at the Secretariat of CCBE so that any lawyer can get hold of the copy of the current code from the Secretariat.

v. 2.5. Incompatible Occupations

2.5.1. In order to perform his functions with due independence and in a manner which is consistent with his duty to participate in the administration of justice a lawyer is excluded from some occupations.

2.5.2. A lawyer who acts in the representation or

the defence of a client in legal proceedings or before any public authorities in a Host Member State shall there observe the rules regarding incompatible occupations as they are applied to lawyers of the Host Member State.

2.5.3. A lawyer established in a Host Member

State in which he wished to participate directly in commercial or other activities not connected with the practice of the law shall respect the rules regarding forbidden or incompatible occupations as they are applied to lawyers of that Member State.

vi. 3.2. Conflict of Interest

3.2.1. 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.

3.2.2. A lawyer must cease to act for both client

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.

3.2.3. A lawyer must also refrain from acting for

a new client if there is a risk of a breach of

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confidence entrusted to the lawyer by a former client or if the knowledge which the lawyer possesses of the affairs of the former client would give an undue advantage to the new client.

3.2.4. Where lawyers are practising in

association, paragraphs 3.2.1 to 3.2.3 above shall apply to the association and all its members.

vii. 3.4. Regulation of Fees

3.4.1. A fee charged by a lawyer shall be fully disclosed to his client and shall be fair and reasonable.

3.4.2. Subject to any proper agreement to the

contrary between a lawyer and hisclient 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.

viii.3.6. Fee Sharing with Non-Lawyers

3.6.1. Subject as after-mentioned 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.

3.6.2. The provisions of 3.6.1 above shall not

preclude a lawyer from paying a fee, commission or other compensation to a deceased lawyer’s heirs or to a retired lawyer in respect of taking over the deceased or retired lawyer’s practice.

ix. 5.2. Co-operation Among Lawyers of Different Member States

5.2.1. It is the duty of a lawyer who is

approached by a colleague from another Member State not to accept instructions in a matter which he is not

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competent to undertake. He should in such case be prepared to help his colleague to obtain the information necessary to enable him to instruct a lawyer who is capable of providing the service asked for.

5.2.2. Where a lawyer of a Member State co-

operates with a lawyer from another Member State, both have a general duty to take into account the differences which may exist between their respective legal systems and the professional organisations, competences and obligations of lawyers in the Member States concerned.

C. DIRECTIVES

There have been three (3) major Directives (pertaining

to the freedom of movement of lawyers within European Union

countries) issued by the European Parliament and of the

Counsel.

1. Services Directive 77/249

a. Applies to temporary cross-boarder practice

(not permanent establishment in foreign state)

b. Member state may require court appearances

be conducted in conjunction with local counsel

i. European Court of Justice ruled that only

an introduction by local counsel required

2. Mutual Recognition of Diplomas Directive 89/4

a. Makes it easier for foreign state lawyers to

acquire lawyer title

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i. Aptitude test may only test on uniqueness of

Member States’ laws

3. Establishment Directive 98/5

The Directive permits lawyers from one EU Member State

to permanently establish themselves, under a Home title, in

other Member States. Lawyers are able to practice home

law, host law and third country law. Selected portions of

the Directive are set forth below.18

Article 6 Rules of professional conduct applicable 1. Irrespective of the rules of professional conduct to which he is subject in his home Member State, a lawyer practising under his home-country professional title shall be subject to the same rules of professional conduct as lawyers practising under the relevant professional title of the host Member State in respect of all the activities he pursues in its territory. 2. Lawyers practising under their home-country professional titles shall be granted appropriate representation in the professional associations of the host Member State. Such representation shall involve at least the right to vote in elections to those associations' governing bodies. 3. The host Member State may require a lawyer practicing under his home-country professional title either 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. Nevertheless, a lawyer practising under his home-country professional title shall be exempted from that

18 Office Journal of the European Communities, Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998.

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requirement if he can prove that he is covered by insurance taken out or a guarantee provided in accordance with the rules of his home Member State, insofar as such insurance or guarantee is equivalent in terms of the conditions and extent of cover. Where the equivalence is only partial, the competent authority in the host Member State may require that additional insurance or an additional guarantee be contracted to cover the elements which are not already covered by the insurance or guarantee contracted in accordance with the rules of the home Member State. Article 7 Disciplinary proceedings 1. In the event of failure by a lawyer practising under his home-country professional title to fulfill the obligations in force in the host Member State, the rules of procedure, penalties and remedies provided for in the host Member State shall apply. 2. Before initiating disciplinary proceedings against a lawyer practising under his home-country professional title, the competent authority in the host Member State shall inform the competent authority in the home Member State as soon as possible, furnishing it with all the relevant details. The first subparagraph shall apply mutatis mutandis where disciplinary proceedings are initiated by the competent authority of the home Member State, which shall inform the competent authority of the host Member State(s) accordingly. 3. Without prejudice to the decision-making power of the competent authority in the host Member State, that authority shall cooperate throughout the disciplinary proceedings with the competent authority in the home Member State. In particular, the host Member State shall take the measures necessary to ensure that the competent authority in the home Member State can make submissions to the bodies responsible for hearing any appeal. 4. The competent authority in the home Member State shall decide what action to take, under its own procedural and substantive rules, in the light of a decision of the competent authority in the host Member

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State concerning a lawyer practising under his home-country professional title. 5. Although it is not a prerequisite for the decision of the competent authority in the host Member State, the temporary or permanent withdrawal by the competent authority in the home Member State of the authorization to practise the profession shall automatically lead to the lawyer concerned being temporarily or permanently prohibited from practising under his home-country professional title in the host Member State.

III. CONCLUSION

In the United States, for all practical purposes,

there is only one type of lawyer. Generally, an individual

may become a lawyer after he or she completes law school

and passes a state bar examination. Once a lawyer is

admitted to practice in a particular state, the lawyer is

deemed to be competent to practice all types of law. The

lawyer may render legal advice and appear in all of the

courts within that jurisdiction.

In Europe, many countries have different types of

“levels” of lawyers. Certain lawyers can render advice and

appear in court, while others may only be permitted to

render limited advice or handle court papers. However, the

standard of conduct for United States and European lawyers

is not all that different. Both the MRPC and the CCBE’s

Code of Conduct are based upon a lawyer’s ability to act

independently. Further, both prohibit the sharing of fees

26


with non-lawyers and do not allow a lawyer to represent of

a client when a conflict or potential conflict of interest

exists. The major difference between the standard of

conduct for a United States lawyer and a European lawyer

arises in the context of cross-border (or in the Unites

States, cross-state) practice of law. Generally, EU

countries, via the European Parliament, have expanded

lawyers’ ability to practice in countries (Member states)

in which the lawyer is not a resident. On the other hand,

United States lawyers are generally required to become

admitted to each states’ bar before the lawyer can practice

law in that state. This includes having to take a state

bar examination or, in some states, filing a motion for

admission. The ABA is aware of MJP issue and has

recommended rules by which states can make it easier for

attorneys to engage in MJP without violating state UPL

laws. This issue is sure to be on the forefront of the

United States legal community and lawmakers for years to

come.

Documents

COMPARATIVE EUROPEAN AND U.S. STANDARDS …apps.americanbar.org/labor/lel-aba-annual/papers/2003/porter.pdf · The outline below provides a general overview of the rules, codes, and