Written and Presented by: Steven M. Richman, Esq. Duane ... · PDF file25/1/2014 · Written and Presented by: Steven M. Richman, Esq. ... One solution is to use Hague Convention on

CROSS BORDER ETHICS ISSUES

Written and Presented by: Steven M. Richman, Esq. Duane Morris 1940 Route 70 East, Suite 200 Cherry Hill, NJ 08003-2171 856.874.4213 November 2014 [email protected] DISCLAIMER: THE MATERIALS HEREIN ARE NOT LEGAL ADVICE BUT PRESENTED FOR GENERAL INFORMATIONAL PURPOSES, AND

NO ATTORNEY-CLIENT RELATIONSHIP IS ESTABLISHED HEREIN. FOR SPECIFIC AND APPLICABLE LEGAL ADVICE, CONSULT AN APPROPRIATE LEGAL PROFESSIONAL LICENSED TO PRACTICE LAW IN YOUR JURISDICTION

mailto:[email protected]

Initial Comment: Anticipate

Anticipate eventualities: all the “what ifs” Force Majeure: what excuses performance Are your clauses susceptible of multiple meanings? Whose language? What are the ethics rules in the jurisdictions where the

dispute is or where the contract will be performed? What legal acts will you be performing?

Choice of Law issues

Rules on limitations on damages and other relief Recovery of attorney's fees and costs Privilege: substantive versus procedural? Choice of forum issues

Overview

Minimize disputes and resolve expeditiously Choice of law and forum Arbitration versus litigation Attorney-client privilege Discovery and privacy International parties involve different countries and

different legal system, with different expectations Civil law versus common law Different translations of English and idioms

Discovery Issues

Two broad issues in foreign discovery: “blocking” statues and data protection/privacy laws.

Blocking statutes prevent transfer of certain types of documents or information for use in foreign litigation and can contain criminal sanctions.

One solution is to use Hague Convention on Taking of Evidence Abroad in Civil or Commercial Matters, which permits requests for documentary and deposition discovery, though various countries have opted out or limited what is available

Discovery Issues (cont’d)

Discovery of foreign companies in U.S. litigation may be obtained through federal rules of civil procedure. Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Court for S. Dist. of Iowa, 482 U.S. 522 (1987). Court has discretion to compel discovery.

However, Aerospatiale emphasized that “American courts should therefore take care to demonstrate due respect for any special problem confronted by the foreign litigant on account of its nationality or the location of its operations, and for any sovereign interest expressed by a foreign state.” Considerations relevant to the comity analysis include: (1) the importance to the litigation of the information requested; (2) the specificity of the request; (3) whether the information originated in the United States; (4) whether alternative means exist to obtain the information; and (5) whether the interests of the United States outweigh the interests of the foreign jurisdictions in maintaining confidentiality.

Discovery and Privacy

For European Union Member States, data protection and privacy legislation must comply with Directive 95/46/EC, which member states and establishes a “floor” for privacy protection

Problem is competing requirements engendered by discovery demands to foreign litigants in U.S. courts, or those with non-U.S. data; when faced with a U.S. court order requiring production in litigation: “Do you prefer I go to jail here, or there?”

“Voluntary” compliance may also be problematic

Ethics Implications

ABA Model Rule 5.5 addresses safe harbors in U.S. for transient practice

Rules against aiding and abetting unauthorized practice of law

Alternate Dispute Resolution

Arbitration is binding, out of court resolution; contract must be clear as to what and who, and applicable rules

Mediation (non-binding facilitation) Litigation is traditionally in-court resolution A court will generally apply its own procedures and

the chosen law Arbitration awards generally enforceable by treaty;

at present no treaty for enforcement of foreign judgments

Arbitration

Must be in writing; public policy in favor of Awards enforceable by treaty, and federal and state statutes Hall Street limits appeal to federal statutory grounds Supposedly faster, private, confidential, cheaper, though

not all agree Scope of clause determines issues and authority Rules of evidence do not apply unless specified Dealing with vacancies, discovery, emergencies Absence of traditional evidentiary expectations, as

settlement discussions

Scope

Scope important to determine what is arbitrable and what is not

IBA Guidelines for Drafting International Arbitration Clauses

AAA Drafting Dispute Resolution Clauses Address authority of tribunal, document production,

confidentiality issues, allocation of costs and fees, qualifications of arbitrators, time limits, finality, cooling off periods, mandatory versus permissive, multiparty and multicontract issues, preliminary relief, all or none, reasoned opinion, language

IBA Rules on Taking of Evidence

Issued as a resource to parties and arbitrators Adopt in arbitration clause in contract Provide mechanisms for the presentation of documents,

witnesses of fact and expert witnesses, inspections, as well as the conduct of hearing

Used together with the regime’s rules ‘[In addition to the institutional, ad hoc or other rules chosen by the parties,] [t]he parties agree that the arbitration shall be conducted according to the IBA Rules of Evidence as current on the date of [this agreement/the commencement of the arbitration].’

Ethics Implications

No rules of evidence, so settlement proposals Federal rules of evidence prohibit admissibility of

evidence of (1) consideration or a promise or offer thereof in an attempt to compromise a claim and (2) “conducts or statements” in settlement negotiations (except in a criminal case and in a regulatory context) when offered to prove “liability for, invalidity of, or amount of” a disputed claim or to impeach a prior inconsistent statement

ABA Model Rule 5.5

Rule 5.5—unauthorized practice of law and multijurisdictional practice of law

Precludes practice unless authorized, and has safe harbors—such as temporary practice relating to taking discovery or participating in an arbitration.

Predicate for ABA rule was that it related to lawyers admitted in other US jurisdictions. Check local adoptions.

Some apply only to US, others provide safe harbor for foreign lawyers

Ethics Implications (cont’d)

When the evidentiary strictures against evidence relating to settlement and compromise are introduced in an arbitration proceeding?

Unless one’s arbitration clause is clear as to specific exclusions or to what extent state law privileges will apply, or the arbitration regime’s rules expressly deal with the issue, the kinds of prohibitions usually seen in court will not necessarily preclude introduction of settlement offers or discussions into the arbitration process

National Bulk Carriers, Inc. v. Princess Management Company, Ltd.

Among other arguments, the losing party sought to vacate an award on the grounds that certain alleged ex parte comments had been made to the arbitration panel; the district court and court on appeal found the comments to be “offhand” but, even if they were deliberate, the arbitrator had stated it to be irrelevant. This was not enough for the court on appeal to find prejudice so as to vacate an award. 597 F. 2d 819 (2nd Cir. 1979).

Bowles Fin. Group v. Stifel, Nicolaus & Co.

Court decided the specific question of whether an award should be vacated when the winning attorney “deliberately, intentionally, affirmatively and repeatedly communicated to the arbitrators an offer of settlement” from the losing party to influence the result

During the arbitration, the attorney had introduced the settlement offer to prove liability of the other party.

Answer: No.

Columbia Medical Center of Lewisville, Subsidiary L.P. v. Heller

Arbitrators admitted three settlement proposals into evidence, even though they had ruled them not proper subjects of discovery, since all parties already possessed them. The arbitration had been conducted under AAA rules, which specifically address the lack of applicability of rules of evidence.

Court noted AAA Guide for Commercial Arbitrators addresses such evidence but to arbitrator’s discretion

Refused to vacate the award on this ground

Choice of Law

Establishes which law will govern the substantive issues relating to contract and related claims

US and foreign courts generally enforce, but subject to public policy and overriding EU law

Applies in arbitration as well as court If absent, courts do their own analysis Determine choice of law up front, not as a tag-on at end can affect outcome Establishes common understanding of the clauses “Choice of law” or “conflict of law often used

interchangeably

Choice of Law

US courts generally enforce; if not specified, various tests (substantial relationship, e.g.)

Exceptions: --against public policy --no reasonable relationship to forum

• US courts also apply foreign law (F.R.C.P. 44.1) • Can affect ability to terminate contract or amount of

damages, entitlement to interest, and others • Scope: tort and contract, “relating to and arising out

of” versus “interpretation,” e.g.

Why Choice of Law is Important

If no contractual choice of law clause, court chooses Creates uncertainty Courts generally first look to see if a conflict; if not,

don’t choose law Tests: “traditional,” the “significant contacts,” the

Restatement 2d,” “lex fori,” “better law” and “combined modern.”

Substance versus Procedure

Governs substantive, not procedural issues Courts apply choice of law provision to the

substantive law of the chosen state, but not to procedural or practice questions

Forum state governs procedural issues

Scope

Scope of the choice of law clause defined what types of claims would be governed by that choice of law. The issue is the same with regard to forum selection. The language of the forum selection clause determines its scope. Schering Corp. v. First Databank, Inc., 479 F. Supp. 2d 468, 470 (D.N.J. 2007).

Forum Court Uses Local Law To Determine:

form of claim (tort or contract) necessary or indispensable parties rules regarding service of process and notice rules of pleading and pre-trial practice whether a claim can or must proceed as counterclaim, defense or set-off conduct of trial (e.g., entitlement to jury and role of judge) means of securing obedience to court orders enforcement of judgment debtor exemptions for purposes of collection efforts burden of proof, evidentiary burdens and presumptions sufficiency of evidence (to extent these relate to conduct of trial as

opposed to substantive law)

Practical Point

It is helpful to have broader language that applies to claims “relating to the relationship” between the parties, or words to that effect. In general, the broader the language in your choice of law clause, the better chance exists that a court will apply a contractual choice of law clause to tort claims as well.

"[this] Agreement shall be construed under the laws of the State of California” did not include tort claims. Caton v. Leach Corp., 896 F.2d 939, 942 (5th Cir. 1990).

http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=896+F.2d+939%20at%20942

http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=896+F.2d+939%20at%20942

Which Means:

Important to consider choice of law in conjunction with choice of forum

E.g., in N. Bergen Rex Transp. v. Trailer Leasing Co., 158 N.J. 561, 569 (1999), the issue was the reasonableness of attorney's fees in a lease dispute.

Though Illinois law was substantive, court held attorney's fees were procedural and examined the reasonableness of contractually permitted fees under New Jersey law, and not Illinois law.

Practical Pointer

Raise the issue early in the drafting process, not when it is done

Consider neutral jurisdictions if neither party concedes the other’s jurisdiction.

E.g., consider New York as reasonable and established commercial venue

No Reasonable Relation

Restatement looks to whether: “chosen state has no substantial relationship to the

parties or the transaction and there is no other reasonable basis for the parties choice”

E.g. above of New York—suppose a Danish company and Louisiana distributor—might agree on New York as accepted commercial law

If chose, say, Alaska, might not be deemed reasonable given these parties

Factors in Choosing the Forum

Costs of litigation—costs of traveling Need for witnesses Familiarity with decisions and practice Procedural rules Ability to recover certain fees and costs Particular privilege rules may differ Jury versus non-jury Local Counsel Many others

Why You Want a Forum Selection Clause

Generally enforceable Eliminate uncertainty No guaranty, but increases chances of chosen forum Strong underlying policy: "in the light of present-day

commercial realities and expanding international trade we conclude that the forum clause should control absent a strong showing that it could be set aside." The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972).

The Forum Should Have a Reasonable Basis

Economic considerations also underlie policy reasons for enforcing forum selection clauses, even where they have not necessarily free negotiated, but the bound party was nonetheless on notice prior to entering into the agreement; such will be enforced where the parties were on notice of it and enforcement is not fundamentally unfair. Carnival Cruise Lines v Shute, 499 U S 585 (1991).

Ethics Considerations

ABA Model Rule 1.1: Competence Need to evaluate forum in terms of the ramifications

Forum Need Not Provide All Remedies

Even where enforcement of the forum selection clause may, in connection with a choice of law provision, deprive a party of certain remedies, that is not enough to deny enforcement, provided it is not unreasonable and the parties still have comparable remedies. Shell v. R.W. Sturge, Ltd., 55 F.3d 1227, 1231 (6th Cir. 1995)("

Privilege

Privilege is treated as a procedural issues, and federal courts will apply the privilege laws of the jurisdiction in which they sit.

A party has the burden of proving the applicability of a foreign privilege if it wants to assert it. In re Air Crash at Belle Harbor, 241 F.R.D. 202, 204 (S.D.N.Y. 2007). If a party does assert the viability of a foreign privilege, the court will undergo a traditional conflict of law analysis to determine if the foreign privilege applies. In re Rivastigmine Patent Litig. (MDL No. 1661), 237 F.R.D. 69, 74 (S.D.N.Y. 2006).

http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=241+F.R.D.+202%2520at%2520204





Foreign Privilege Issues

In United States, attorney-client privilege generally recognized for in-house counsel

Not extended in European Union to communications between in-house counsel and employees, mainly due to claim of lack of dependence

Varies from jurisdiction to jurisdiction; e.g., Germany recognizes a limited in house privilege under certain circumstances

Privilege generally won’t cover business advice

Foreign Privilege Issues--Arbitration

IBA Rules on Taking of Evidence in Arbitration Article 9 provides for exclusion by the tribunal of evidence or discovery due to “legal impediment or privilege under the legal or ethical rules determined by the Arbitral Tribunal to be applicable…”

In so determining, tribunal to consider, inter alia, “the expectations of the Parties and their advisors at the time the legal impediment or privilege is said to have arisen” and any possible waiver, as well as “the need to maintain fairness and equality as between the Parties, particularly if they are subject to different legal or ethical rules.”

Domestic Privilege

The issue exists domestically as well. In Valencia v. Colo. Cas. Ins. Co., 2007 U.S. Dist. LEXIS 97721 (D.N.M. Dec. 6, 2007), the court note that federal law will govern work product issues, but attorney-client issues are a matter of state law. Attorney client privilege is a matter of state procedural law from the federal standpoint, but determining which state’s privilege applies is still the subject of a choice of law analysis; state courts will also undergo that analysis. Sterling Fin. Mgmt., L.P. v. UBS PaineWebber, Inc., 336 Ill. App. 3d 442 (Ill. App. Ct. 1st Dist. 2002).

http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=2007+U.S.+Dist.+LEXIS+97721



http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=336+Ill.+App.+3d+442

http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=336+Ill.+App.+3d+442

Foreign Privilege: Some Comments

Can be criminal if violated in civil law countries Issues in determining who is an “attorney” where

different types of legal functionaries May foster inefficient use of outside counsel for

simple communications May depend on context—in EU, the Akzo Nobel case

was a competition investigation by EU. Canada: cases split; may depend on expectation of

privilege when foreign lawyer involved. Circumstances and substance of advice matter

Injunctions and Fraud

Asset freezing orders: Mareva Injunctions Anton Pillar orders (non-US common law

jurisdictions) Enforcement of non-final orders by comity

Aid of Foreign Litigation

Bankruptcy-ancillary proceedings 28 U.S.C. Section 1782—allows parties in

proceedings outside the United States to obtain discovery here.

ABA Model Rule 8.5

(a) Disciplinary Authority. 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 not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.

(b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the

rules of professional conduct to be applied shall be as follows:

(1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and

(2) for any other conduct, the rules of the jurisdiction in which the lawyer's conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the lawyer's conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer's conduct will occur.

ABA 2020

R&R 107D: Amends rule 8.5 comment regarding designation of choice of law for purposes of applicable law governing discipline; rule always subjects lawyer to home jurisdiction’s discipline, but lawyer can also be subject to discipline in other jurisdiction. Rule provides that in cross-border situations where lawyer in arbitration/court, that place’s jurisdiction applies, and in other conduct, look to area of predominant effect and no discipline there if lawyer followed rules and had belief that he/she was complying with jurisdiction where predominant effect of the conduct would be. Comment added to state that factor in reasonable belief would be a choice of law provision in written agreement with client (e.g., engagement letter).

8.5 Comments

The ABA did not change model rule, but added comment to allow as another factor, the authority to consider an agreement where lawyer and client agree what law should apply, and that is a factor in assessing the lawyer’s reasonable belief:

“With respect to conflicts of interest, in determining a lawyer's

reasonable belief under paragraph (b)(2), a written agreement between the lawyer and client that reasonably specifies a particular jurisdiction as within the scope of that paragraph may be considered if the agreement was obtained with the client's informed consent confirmed in the agreement.”

[ w w w . d u a n e m o r r i s . c o m ]

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Ethics of Billing: An American Perspective

Prepared by

Steven M. Richman, Esq. [email protected]


From the film The Firm

● GENE HACKMAN: (As Avery Tolar) Everything depends on billing. How many hours do you spend even thinking about a client? I don't care if you're stuck in traffic or shaving or sitting on a park bench.


General Comments

● ABA model rules are not law by themselves ● States set their own rules ● IBA proposed rule not dissimilar to ABA model

rule or others that focus on reasonableness ● Clients may have guidelines that take the form

of contractual obligations ● Underlying fairness


ABA Model Rule 1.5--Fees

● Requires that a lawyer may not collect an unreasonable fee or unreasonable expense

● Other rules may impact, including but not limited to 1.4 (communication with client; reasonably consult), 7.1 (communications concerning a lawyer's services; no misrepresentations) and 1.3 (diligence)(“A lawyer shall act with reasonable diligence and promptness in representing a client.)


Reasonableness Factors

● (1) the time, labor, novelty and difficulty of issues, and necessary skill; (2) likelihood acceptance of job will preclude other work by the lawyer; (3) fee customary in locality for such services; (4) amount involved and results obtained; (5) time limitations; (6) nature and length of client; (7) experience, reputation, and ability of the lawyer; and (8) whether fee is fixed or contingent.


What is Reasonable?

● E.g.:

The touchstone of any fee arrangement is reasonableness.

New Jersey RPC 1.5(a) provides in simple direct language that “A lawyer’s fee shall be reasonable.”

While RPC 1.5(a) and the Model Rules aim at the amount of the fee, the type of the fee arrangement chosen must also be reasonable under the circumstances.” Michels, § 33:3-1, p. 794 (citing In re Reisdorf, 80 N.J. 319 (1979) (applying the predecessor of RPC 1.5(a), DR 2-106(A)).


Engagement Letters

● Rule 1.5(b): When the lawyer has not regularly represented the

client, the basis or rate of the fee shall be communicated to the client, in writing, before or within a reasonable time after commencing the representation

● Do not rely on “unjust enrichment” theories to bail you out


Engagement Letters (cont’d)

A written fee agreement, or as it is sometimes known, an engagement letter, is not always needed. Consider:

• email

• an initial invoice sent within a reasonable time after commencement of the representation

Either of these can serve as a writing saying the basis of the fee.


Engagement Letters (cont’d)

● Getting client signature also shows “buy in” by the client

● Removes factual question; case in NJ where client disputed either receipt or that there was an agreement.

● Again, you can prove unjust enrichment, but if red flags are raised at outset, why bother?

● Contingent fees must be in writing-check jurisdiction’s rules


Identify the Client

● Identify the client ● If multiple (as affiliates), make sure the

engagement letter specifies and addresses appropriate privilege waivers


ABA Formal Opinion 93-379 (Dec. 6, 1993)

● Lawyer obliged to (1) disclose basis for fee at outset of engagement and (2) reasonably explain fees and costs in statements issued

● No false or misleading communications ● Statements must adequately apprise

clients as to how basis of billing is applied ● Other ethical obligations, such as zealous

representation, can impact


AGBA Formal Opinion (cont’d)

● “Billing for Professional Fees, Disbursements and Other Expenses”

● Charges other than professional fees - unless disclosed in advance, the client should not be billed for

General Overhead Surcharges on disbursements Professionals performing clerical functions Administrative functions


Scope

ABA Model RPC 1.2(c) provides: “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.”


Define the Scope of Representation

● Remember that the engagement letter is a contract with you and the client; do not adhere blindly to forms

● Rule 1.2(a): An attorney shall abide by a client’s decisions

concerning the objectives of representation. This includes the performance of tasks for which

the client will be charged.


Remember Diligence

● Rule 1.3 Diligence A lawyer shall act with reasonable diligence and

promptness in representing a client ● But make sure you do not too narrowly define

the scope which may interfere with your ability to be diligent and competent E.g., some tasks are necessary parts of others


Understanding the Different Roles

● Rule 1.2 Scope Of Representation And Allocation Of Authority Between Client And Lawyer …lawyer shall abide by a client's decisions

concerning the objectives of representation and … shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation . . .


Scope of Authority (cont’d) ● *** ● (d) A lawyer shall not counsel a client to

engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.


Lawyer as Advisor

● Rule 2.1 Advisor ● In representing a client, a lawyer shall exercise

independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation

● BUT: privilege does not usually cover business advice


Communication ● Rule 1.4 Communication ● (1) promptly inform the client of any decision or circumstance with

respect to which the client's informed consent… is required … ● (2) reasonably consult with the client about the means by which the

client's objectives are to be accomplished; ● (3) keep the client reasonably informed about the status of the

matter; ● (4) promptly comply with reasonable requests for information; and ● (5) consult with the client about any relevant limitation on the lawyer's

conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

● (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation


Use of Billing to Communicate

● The attorney must therefore inform the client about the cost of representation and relationship between the attorney’s fees and the services provided

● The regular bills sent to the client are a good source of information for the client about the status of and work on the matter

● Though some clients may resent the “in your face” confirmations of instructions


E.g.

● 1/5/14 .3 hours Email to client confirming John Smith’s instructions to me to not oppose motion after being advised of risk of default because of monetary considerations.


Communications Concerning Lawyer’s Services ● Rule 7.1 ● A lawyer shall not make false or misleading

communications about the lawyer or the lawyer’s services

● A lawyer’s bills must therefore be honest and accurate


Transactions with Clients

● Rule 1.8(a) ● A lawyer shall not enter into a business

transaction with a client without safeguards ● Changing terms of billing for an existing client

(e.g. from hourly to contingent) has been held to constitute a business transaction with a client


Transactions with Clients (cont’d)

● Rule 1.8(a) ● Requirements to change terms of billing:

Terms must be fair, reasonable and understandable to client and transmitted in writing

Client must be advised to and given opportunity to seek the advice of independent counsel

Client must give informed consent to the terms of the transaction in a writing signed by the client


Misconduct

● Rule 8.4 Misconduct ● It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation

Disciplinary Boards and courts may use Rule 8.4 regarding billing fraud and abuse


Misconduct (cont’d)

● Rule 8.4(d) ● It is professional misconduct for a lawyer to

engage in conduct that is prejudicial to the administration of justice

● Fraudulent billing has been held to violate Rule 8.4(d)


Practical Advice

● Time entries should show the movement and activity on a matter with narrative description of work performed

● Do not simply use the following without elaboration: Status Strategy Interoffice conference Worked on . . . Trial Preparation Legal Research


Time Entries

● No block billing – separate time entry for each task, with a detailed description

● Federal Bankruptcy Rule 2016 sets forth billing guidelines useful for all lawyers

● Detailed descriptions give full explanation for the amount of the bills

● Timely and complete bills help prevent claims that can arise out of large, old A/R


E.g.

● 1/25/2014 8.0 hours Research


Instead, perhaps:

● 1/25/2014 8 hours Research into issues relating to enforcement of indemnification clause (3 hours); comparative law analysis of treatment of same in New Jersey and New York (2 hours); follow up on Jones v. Smith and distinguishing cases to address adverse party’s argument (3 hours)

● Client may also have specific task identifiers


Other Sample Entries

● Unacceptable – Review Documents ● Acceptable – Review documents produced by

Acme Inc.; bates numbered 127 to 1574 ● Unacceptable - Review status ● Acceptable - Review transcript of Smith

deposition and correspondence from Ms. Allen in preparation for telephone conference with Mr. Jones and Ms. James regarding options relating to settlement


Billing for “Learning Curve”

● ABA Section of Business Law "Statement of Billing Principles: "Lack of experience should be appropriately reflected in a lawyer’s hourly rate.”

● Rule 1.1 Competence: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

http://www.abanet.org/cpr/nosearch/Statements_Principles.pdf

http://www.abanet.org/cpr/nosearch/Statements_Principles.pdf


Some common sense

● “[I]t is helpful to consider these questions, not from the perspective of what a client could be forced to pay, but rather from the perspective of what the lawyer actually earned.”

● In short, flying for six hours for one client and working on the plane for five hours for another does not entitle the lawyer to claim eleven hours billed


More Common Sense

● Review carefully for grammar and spelling—particularly client names—this is your work product

● Pay attention to scope creep and mushrooming attorney and staff involvement

● Be aware of continuity (e.g., calling “final review” and then have another week’s worth of “review”)

● Be aware of who is going to be reviewing and paying the bills

● Outside Counsel Guidelines: discuss any issues up front ● Be prepared to cut where appropriate; maintain control


Outside Counsel Guidelines

● Guidelines from clients on outside counsel billing

● Often contain very detailed descriptions of what a client will and won’t pay for

● Firm Policy on outside counsel guidelines ● The guidelines must be carefully reviewed to

ensure compliance is possible, ethical and profitable


Particular Situations

● No Double Billing Simultaneous appearance or other work of behalf

of more than one client Travel for one client while working on another

client’s matter Recycled work product

● Premium billing Permissible if agreed to by client Cannot bill for time not worked


Life in the Real World

● Chen v. Chen Qualified Settlement Fund, 552 F.3d 218 (2d Cir 2009)

● in medical malpractice case, attorney sought court approval of fees in an infant compromise order after settlement; because he sought fees 5% over statutory minimum and misrepresented certain of his activities, entire (100%) of fee denied.

● Abuse has ramifications


Reprimanded

● IN THE MATTER OF James C. Cunningham, BEFORE THE GRIEVANCE COMMITTEE OF THE NORTH CAROLINA STATE BAR 0860856, Wake County:

● Lawyer charged client $50.00 every time he reviewed the bill and $50.00 every time he sent a form letter enclosing the bill. Committee concluded this was overhead and charging client this to review a bill constitutes task padding, is excessive and thus a violation of applicable NC ethical rules and was misconduct


Costs

● General overhead should be considered in setting the professional fee and not a separate charge

● Matter-specific disbursements (court stenographer, travel to court/meeting, etc., but only to extent of actual cost

● Reasonable in-house services, such as copying


Reasonableness versus Conscionability

● California’s Rule 4-200 (Fees for Legal Services) uses a different standard that:

● “A member shall not enter into an agreement for, charge, or collect an illegal or unconscionable fee.”


Reverse Contingency Fees

● Billable hour alternative ● Based on savings to a client, rather than

recovery; not applicable to criminal defendants ● ABA Formal Op. 93-373 (1993) (fee subject to

reasonableness and ”amount saved is reasonably determinable, the fee is reasonable in amount under the circumstances, and the client’s agreement to the fee arrangement is fully informed.”)


Contingency Fees

● Often governed by rule as to amount and calculation

● Not applicable in certain types of cases ● More flexibility in commercial than personal

injury cases ● Hybrid may be appropriate in some cases but

should be documented and agreed by client


Alternate Billing Arrangements

● Pure and partial contingency fees ● Fixed or flat fees ● Negative contingency or defense success fee ● Success (bonus) fees ● Capped fees ● Fixed installment fee ● Annual retainers ● Partial hourly/success/blended fees ● Equity or ownership interest in client in lieu of monetary fee ● All subject to scrutiny and, ultimately, reasonableness and legality in

the particular jurisdiction ● Others?


Contingency Fees

● May be different rules for personal injury and commercial

● Informed consent of client and opportunity to retain lawyer on hourly basis


Court Review

● General American rule: loser does NOT pay, and no recovery of attorney fees unless by statute, contract, sanction or some other specified legal basis

● Even where allowed, Courts employ variations of test that looks to levels of sophistication of issue, experience of attorneys, prevailing rates in the particular jurisdiction, and ultimately, reasonableness


ABA Commission on the Billable Hour

● http://www.abanet.org/careercounsel/billable/toolkit/bhcomplete.pdf

● “It was not until the 1950s and 1960s that timekeeping became routine.”

● Report discusses “corrosive” impact and why billable hours so entrenched

http://www.abanet.org/careercounsel/billable/toolkit/bhcomplete.pdf

http://www.abanet.org/careercounsel/billable/toolkit/bhcomplete.pdf


The Jedi

● Author/lawyer Scott Turow, “The Billable Hour Must Die” (http://www.abajournal.com/magazine/the_billable_hour_must_die/)

● “my greatest concern is not merely that dollars times hours is bad for the lives of lawyers—even though it demonstrably is—but that it’s worse for clients, bad for the attorney-client relationship, and bad for the image of our profession. Simply put, I have never been at ease with the ethical dilemmas that the dollars-times-hours regime poses, especially for litigators”

http://www.abajournal.com/magazine/the_billable_hour_must_die/

http://www.abajournal.com/magazine/the_billable_hour_must_die/


The IBA Proposal

● 10.1 General Principle

● A lawyer shall not contract for, charge or collect an unreasonable fee or an unreasonable amount for expenses. Such fee arrangements may include, where permitted by law or applicable rules of professional conduct, a contingent fee agreement. A lawyer shall not generate unnecessary work.


IBA Guidelines (cont’d)

2. Honesty, integrity and fairness A lawyer shall at all times maintain the highest standards of honesty, integrity and fairness towards the lawyer’s clients, the court, colleagues and all those with whom the lawyer comes into professional contact.


International Context—IBA Proposal

● 10.3 International Implications

● When engaging in cross-border practice, the lawyer should investigate whether arrangements on fees, payments of deposits and limitations of liability are permitted under all applicable rules and, if relevant, the rules which govern the responsibility for fees of other lawyers who may become involved.


Common occurrences

● Different hourly rates for different clients—what is “standard” and “preferred?” Something in between? Need for disclosure and beware of potential for misrepresentation.

● Minimum billable hours—does it encourage padding? What is a “real” hour?

● Minimum blocks of time—can a five minute phone call be a “.3” (fifteen minute) charge?

● The “.1” s add up.


Fee Splitting

The phrases “fee sharing,” “fee splitting,” “division of a fee” and “referral fees” are often used interchangeably and incorrectly.

The following discussion distinguishes three basic “fee splitting” issues and addresses the rules of ethics that apply to each:

(1) sharing legal fees with non-attorneys;

(2) the division of a fee between lawyers who are not in the same firm; and

(3) referral fees paid by attorneys to other attorneys and non-attorneys.


Sharing Fees with Non-Attorneys

● Subject to certain exceptions, ABA Model Rule 5.4(a) provides: A lawyer or law firm shall not share legal fees with a nonlawyer.

● E.g., no payments to non-attorney “runner” who solicits legal business for the attorney


Division of Fees Among Lawyers in Multiple Firms ABA Model Rule 1.5(e) provides as follows: ● 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.


Referral Fees

● Generally prohibited by ABA Model Rule 7.2(b) but jurisdictions may allow where referral is made by a non-specialist to a certified specialist.


The Brave New World of Third Party Funding ● Involves a party that has a meaningful claim against

another party in the commercial area, but the party lacks the financial wherewithal to fund the litigation.

● The claim itself is not assigned, but the third party funder takes a percentage of the recovery.

● The issue with third party funding raises concerns that the lawyer is improperly funding a litigation, or that the third party funder may direct the lawyer in ways inconsistent with the client’s best interests, or there may be a breach of attorney-client privilege, among other things.


Third Party Funding (cont’d)

● There remains resistance in some quarters to third party funding agreements. See, e.g., Johnson v. Wright, 682 N.W.2d 671 (Minn. Ct. App. 2004)(“Note is a valid agreement between the parties, and therefore respondent is entitled to full payment on the Note. The assignment agreements, under which respondent financed appellant's legal action in exchange for a percentage of the proceeds if the action were successful, however, are champertous, and void as against public policy.”).

● An example of a third party funding assignment that was litigated and enforced, see Dopp v. Yari, 927 F. Supp. 814 (D.N.J. 1996) (court rejected claims of usury, finding that interest rates higher than the lawful amount can be sustained when collection of the entire principal amount due is contingent. It found the agreement had consideration and was a legitimate division of proceeds from a joint undertaking.)


Bar Association Views

● Ky. Bar Ass’n Ethics Comm., Formal Op. E-432 (2011) (“[a]lthough the lawyer may, at the request of the client, help identify pre-settlement lenders, the lawyer should advise the client of the possible disadvantages of such transactions and the lawyer should make clear that he is not endorsing a particular lender.” The lawyer must honor the ethical rules about clear and transparent communication with the client as to the manner in which the third party funding works, to the extent the lawyer is assisting in or facilitating the obtaining of the third party funding. There can be no infringement on the lawyer’s independent duty to the client, and the client needs to be alerted to potential issues regarding waiver of attorney client privilege.


Two More

● N.Y.C. Bar Ass’n Comm. on Prof’l and Judicial Ethics, Formal Op. 2011-2 (2011) states that third party funding is not per se unethical, and raises similar concerns that need to be dealt with.

● Florida’s Bar Association as well has found that a lawyer may facilitate third party funding agreements upon informed consent of the client. The lawyer may honor such a written assignment of claim but not issue “a letter of protection” to the third party funding company. See Prof'l Ethics of the Florida Bar, Op. 00-3 (2002).


Choice of Law ● Rules on limitations on damages and other

relief ● Recovery of attorney's fees and costs ● Privilege: substantive versus procedural? ● Choice of forum issues


ABA Model Rule 8.5 ● (a) Disciplinary Authority. 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 not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.

● ● (b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of

professional conduct to be applied shall be as follows:

● (1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and

● (2) for any other conduct, the rules of the jurisdiction in which the lawyer's conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the lawyer's conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer's conduct will occur.


ABA 2020 ● R&R 107D: Amends rule 8.5 comment regarding designation of

choice of law for purposes of applicable law governing discipline; rule always subjects lawyer to home jurisdiction’s discipline, but lawyer can also be subject to discipline in other jurisdiction. Rule provides that in cross-border situations where lawyer in arbitration/court, that place’s jurisdiction applies, and in other conduct, look to area of predominant effect and no discipline there if lawyer followed rules and had belief that he/she was complying with jurisdiction where predominant effect of the conduct would be. Comment added to state that factor in reasonable belief would be a choice of law provision in written agreement with client (e.g., engagement letter).


The Final “.1”

● Always consult the rules in the particular jurisdiction

● Utilize a transparent engagement letter that the client signs

● Disclosure and reasonableness are key ● Common sense: don’t charge client for the

$2.00 soda at the conference when sending a $35,000 bill for fees (taken from a true story)

Social Media: Developing Issues

Steven M. Richman, Esq. New York, NY

November 2014 [email protected]

Overview

• Social media now permeates all aspects of life, across generations, geography and industries

• Generally involves software platforms that allow sharing of information, real time exchanges, use of links and cross references, images

• It does not change basic legal or ethical principles, but heightens the risks

Rules of Professional Conduct

• Various rules and principles across borders may be applicable

• These include primarily issues of confidentiality, conflict of interest, duties to former clients, truthfulness in statements to others, communication to persons represented by counsel, dealing with unrepresented persons, solicitation and contact with prospective clients , formation of attorney-client relationship, respect for rights of third persons, unauthorized practice of law, advertising and communication of specialty of practice

What Might Happen?

• The lawyer answers a question about a point of law and the questioner acts on it

• A lawyer talks about a “hypothetical” with no names that the real client nonetheless recognizes and believes confidentiality was breached

• The lawyer “friends” an adverse party or fails to “unfriend” an adverse party

• Many other possible scenarios

Advertising and Testimonials

• California Formal Opinion 2012-186: – Posting on social media website is subject to rules of

professional conduct – Can be “communication” or “advertising” or

“testimonial” within the rules – E.g. post: “Case finally over. Unanimous verdict!

Celebrating tonight.”—NOT communication – “Another great victory in court today! My client is

delighted. Who wants to be next?” Communication AND testimonial in violation of Rules

“Friends” • San Diego County Bar Legal Ethics Opinion 2011-2: • “rules bar an attorney from making an ex parte friend

request of a represented party. An attorney’s ex parte communication to a represented party intended to elicit information about the subject matter of the representation is impermissible no matter what words are used in the communication and no matter how that communication is transmitted to the represented party. We have further concluded that the attorney’s duty not to deceive prohibits him from making a friend request even of unrepresented witnesses without disclosing the purpose of the request.”

Judges

• ABA Formal Opinion 462: • “A judge may participate in electronic social

networking, but as with all social relationships and contacts, a judge must comply with relevant provisions of the Code of Judicial Conduct and avoid any conduct that would undermine the judge’s independence, integrity, or impartiality, or create an appearance of impropriety.”

Judges (cont’d)

• California Judges Association Judicial Ethics Opinion 66:

• Judge may be member of social media network provided adhere to rules governing public comment on pending cases, do not impugn impartiality or demean the office, do not engage in impermissible political activity or lend prestige of office.

Opinion 66 (cont’d)

• Can include in that network lawyers appearing before him/her, provided maintain impartiality and not constitute ex parte communications

• CANNOT include lawyers who have case pending before the judge in the social media networking

Jurors

• ABA Formal Opinion 466: • Lawyer can review juror or potential juror’s

social media page but not communicate directly

• Cannot send access request • If juror “pinged” or becomes aware, not

deemed an improper communication

Jurors (cont’d)

• New York City Bar Formal Opinion 2012-2: • Lawyers can use social media to research jurors

subject to limitations on communications with jurors or prospective jurors and prohibitions on deception to obtain information

• NY County Lawyers Association No. 743: • Pretrial search allowed subject to no contact or

communication and no attempt to “friend” potential juror and no deceit

Specialties

• New York State Bar Association Ethics Opinion 972: – Law firm cannot list its services under a

“Specialties” heading on social media site – Lawyer cannot do so unless so certified

“Linkedin” Endorsements

• “a lawyer who adopts or endorses information on any similar web site becomes responsible for conforming all information in the lawyer’s listing to the Rules of Professional Conduct. Martindale-Hubbell, SuperLawyers, LinkedIn, Avvo, and other such websites may place their own informational listing about a lawyer on their websites without the lawyer’s knowledge or consent, and allow lawyers to take over their listings. The language employed by the website for claiming a listing is irrelevant.” South Carolina Bar Ethics Advisory Opinion 09-10

Third Party Information

• Oregon State Bar Formal Opinion 2013-189: • Lawyer may review someone’s publicly

available information on social networking site • Ability to request access to non-public

information, subject to rules regarding contact with unrepresented parties

• Ability to use computer alias when requesting information, subject to restrictions on deception

Third Party Information (cont’d)

• New York City Bar Ass’n Formal Op. 2010-2: • “a lawyer may not use deception to access

information from a social networking webpage. Rather, a lawyer should rely on the informal and formal discovery procedures sanctioned by the ethical rules and case law to obtain relevant evidence.”

Third Party Information (cont’d) • New York State Bar Ass’n Op. # 843: • “A lawyer who represents a client in a pending litigation,

and who has access to the Facebook or MySpace network used by another party in litigation, may access and review the public social network pages of that party to search for potential impeachment material. As long as the lawyer does not "friend" the other party or direct a third person to do so, accessing the social network pages of the party will not violate Rule 8.4 (prohibiting deceptive or misleading conduct), Rule 4.1 (prohibiting false statements of fact or law), or Rule 5.3(b)(1) (imposing responsibility on lawyers for unethical conduct by nonlawyers acting at their direction).”

Third Party Information (cont’d)

• The Philadelphia Bar Association Professional Guidance Committee Opinion 2009-02

• “The fact that access to the pages may readily be obtained by others who either are or are not deceiving the witness, and that the witness is perhaps insufficiently wary of deceit by unknown internet users, does not mean that deception at the direction of the inquirer is ethical.”

Use of Discovery Mechanisms

• Romano v. Steel Case Inc., 2010 NY Slip. Op. 32645 (U) (Suffolk County 2010):

• Held that plaintiffs who place their physical condition in controversy may not shield from disclosure material which is necessary to the defense of the action, and that it was public information that clearly belied the plaintiff’s claims, showing a need to get to the non-public pages.

Concluding Comments

• Access to information available on social media can also be sought through formal discovery and if need be, by court order with appropriate protections in place

• The use of digital media does not change the rules regarding non-digital media

• Opinions may be binding or advisory, and differ from jurisdictions to jurisdiction

Outsourcing: The Ethical Issues

Steven M. Richman November 2014

Defining Legal Process Outsourcing

• Delegation to a third party of traditional legal tasks

• Research, drafting, document review and other tasks generally performed by a lawyer or specialist, as in case of patent claim drafting

• In brief, it is the delegation of tasks to those outside the law firm retained to perform such tasks

Previously “Accepted” Outsourcing

• Domestic Per Diem Lawyers (deposition coverage, document review)

• Local Counsel in Other Jurisdictions • Jury Selection Companies • Specialist “co-counsel” • In short, certain “outsourced” functions, like

having an independent lawyer cover a deposition, have been around a long time.

What is New: The “Foreign” Element

• Affiliates of domestic law firm • Foreign Law Firms • Foreign Non-Law Firms • In short, what is new has been the technology that

enables significant work to be done beyond U.S. borders by either lawyers or non-lawyers, with near-instantaneous transmission of results and communication and economic advantages

Ethical Issues

• Supervision, Responsibility and Control • Disclosure and Client’s Acceptance of the Scope and Details of

the proposed Outsourcing • Protection and Assurance of Client Confidentiality • Conflicts of Interest • Competent Representation and Independent Legal Judgment • Compliance with Requirements regarding Attorneys’ Fees

Supervision, Responsibility and Control

ABA Model Rule 1.1:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Disclosure and Client’s Acceptance of the Scope and Details of the Proposed

Outsourcing

ABA Model Rule 1.2 (a) – Scope of Representation and Allocation of Authority Between Client and Lawyer states, in pertinent part, that “a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation…”

Conflicts of Interest

ABA Model Rule 1.7 – Conflicts of Interest relative to Current Clients states that

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.

Protection and Assurance of Client Confidentiality

• ABA Model Rule 1.6(a) – Confidentiality of Information provides that “[a] lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).”

Competent Representation and Independent Legal Judgment

ABA Model Rule 5.1 defines responsibilities of

partners, managers, and supervisory lawyers, requiring “reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance” of compliance with applicable rules, and allocating responsibility for specific conduct. ABA Model Rule 5.3 provides similar provisions regarding non-lawyer assistance.

Compliance with Requirements regarding Attorneys’ Fees

• ABA Model Rule 1.5 requires that a lawyer may not collect an unreasonable fee or unreasonable expense. Other rules may impact, including Model Rules 1.4 (communication with client; reasonably consult), 7.1 (communications concerning a lawyer’s services; no misrepresentations) and 1.3 (diligence) Reasonableness factors include (1) the time, labor, novelty and difficulty of issues, and necessary skill; (2) likelihood acceptance of job will preclude other work by the lawyer; (3) fee customary in locality for such services; (4) amount involved and results obtained; (5) time limitations; (6) nature and length of client; (7) experience, reputation, and ability of the lawyer; and (8) whether fee is fixed or contingent.

Ethics Opinion Responses

• ABA Formal Opinion 08-451 provides that lawyers may outsource legal or nonlegal support services provided the lawyer remains ultimately responsible for rendering competent legal services to the client under Model Rule 1.1.

• ABA Opinions are NOT ABA policy and do not bind any jurisdiction, but may be persuasive

Individual Bar Associations Sampling

• New York City Bar Committee on Professional and Judicial Ethics Formal Opinion 2006-03 states that “the New York lawyer must be both vigilant and creative in discharging the duty to supervise.”

• San Diego Bar Association Ethics Opinion 2007-1 states that in order for work to be done competently, the lawyer retaining the overseas firm “must have an understanding of the legal training and business practices in the jurisdiction where the work will be performed, including the educational background and credentials of those actually doing the work.”

• Los Angeles County Bar Association Professional Responsibility and Ethics Committee Opinion No. 518 states that an attorney may contract with an out-of-state company to draft a brief “provided the attorney is competent to review the work, remains ultimately responsible for the final work product, does not charge an unconscionable fee, protects client confidences and secrets, and there is no conflict of interest between the client and the contracting entity. The attorney may be required to inform the client of the nature and scope of the contract between the attorney and out of state company if the brief provided is a significant development in the representation or if the work is a cost which must be disclosed to the client under California law.”

ABA House of Delegates amended comment to Rule 1.1 (Competence) to state:

[6] 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 to a client, 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). The reasonableness of the decision to retain or contract with other lawyers outside the lawyer’s own firm will depend upon the circumstances, including the education, experience and reputation of the nonfirm lawyers; the nature of the services assigned to the nonfirm lawyers; and the legal protections, professional conduct rules, and ethical environments of the jurisdictions in which the services will be performed, particularly relating to confidential information.

[7] When lawyers from more than one law firm are providing legal services to the client on a particular matter, the lawyers ordinarily should consult with each other and the client about the scope of their respective representations and the allocation of responsibility among them. See Rule 1.2. When making allocations of responsibility in a matter pending before a tribunal, lawyers and parties may have additional obligations that are a matter of law beyond the scope of these Rules.

Concluding Comments

• On a certain level, legal process outsourcing implicates no new ethical issues, merely the application of those in place to more frequent international contexts.

• On the other hand, while choice of law analysis may accommodate the ethical issues, the increasing frequency of the issues may warrant specific commentary or rules modification.

Resources

• The comments in this presentation have been drawn from the ABA 20/20 report as well as the Section of International Law Section report and article on legal process outsourcing in International Law News. For further information, see www.abanet.org/intlaw.

• [email protected]

http://www.abanet.org/intlaw