Document Type

Article

Publication Title

American Journal of Comparative Law

Volume

29

Publication Date

1981

Keywords

Code of Professional Responsibility, Model Rules of Professional Conduct, international practitioner, Foreign Corrupt Practices Act of 1975, international lawyering

Abstract

The present Code of Professional Responsibility (CPR) is essentially geared to guide the conduct of the lawyer as advocate or litigator. It is certainly of assistance to the American international lawyer in establishing guidelines for his conduct, but only of limited assistance since the international lawyer usually serves more as an advisor to, or negotiator for, his clients. In contrast, the recent ABA draft Model Rules of Professional Conduct (MRPC) provide a more useful basis for examination of the international lawyer's ethical responsibilities, as they do in many respects for the corporate or commercial lawyer who assists domestic clients in domestic practice. Whether or not the MRCP is ultimately adopted (and it certainly has proved controversial), the draft does serve to stimulate thought on certain ethical issues confronting the American international practitioner. The Foreign Corrupt Practices Act of 1975 also raises substantial technical and practical problems for the international lawyer counseling either American parent companies or their operational subsidiaries abroad. While much attention has been focused on the issues for businessmen, it is obviously imperative for lawyers to reflect upon their role in assisting clients to comply with the Act and upon their own potential liability as lawyers for defective execution of their responsibilities. Although much of this article concerns the responsibilities of the American international lawyer serving American clients abroad, either from offices in the United States or overseas, the principles enunciated in the CPR and in the MRPC relate equally to the American lawyer serving foreign clients within the United States. Further, the CPR and the MRPC provide at least some basis for examining the ethical obligations of the American international lawyer in serving American or foreign clients with regard to purely foreign transactions. Initially this article will analyze the fundamental questions of who is the client and how the client is to be served under the CPR and the MRPC. Next there will be an examination of the Foreign Corrupt Practices Act, practical issues in satisfying its requirements, and the role of the international lawyer in counseling and assisting clients (especially where a client's employees or executives may be violating, or have violated, the law). Finally there will be an examination of the complex problems in assisting American or foreign clients where there is an issue of violation of foreign law, or where the lawyer has reason to believe that his role assists the client in attaining the fruit of a violation of foreign law.

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