Robert E. Lutz


Taking some typical international practice situations, we can highlight the basic professional competence questions posed: (1) ABC Company, located in California, wants to establish a manufacturing facility in Mexico, (2) ABC asks a lawyer to draft a sales agency agreement that it will use in dealing with a French distributor. The lawyer has previously prepared such an agreement for this client for use with respect to distributorships in the United States. These hypothetical situations raise the following professional competence questions: (1) What are the lawyer's professional responsibilities if the lawyer undertakes sole representation of this client in the lawyer's home jurisdiction, for example California, and this representation involves advising on foreign law? In this example, sometimes referred to as the “self-help” option, the lawyer independently, and without foreign expert assistance, counsels the client. (2) What are the lawyer's professional responsibilities if the lawyer undertakes representation of the client in the foreign country? For example, given the facts above, is the lawyer somehow professionally restricted from going abroad to France or Mexico and doing legal work for a client in those countries? Which country's professional standards would apply to the lawyer's activities? (3) If the lawyer decides that he or she is not competent to advise on foreign law, what are that lawyer's responsibilities with respect to selecting competent local counsel and to selecting competent counsel who resides and practices in a foreign country? (4) Once the lawyer selects counsel competent to advise on foreign law matters, what are the lawyer's professional obligations as to the counsel's activities? What problems is the lawyer likely to encounter, and how can they best be handled? The following sections will address these concerns and hopefully offer guidance to the U.S. lawyer engaged in international practice. They will also offer suggestions regarding lawyer-client and U.S. lawyer-foreign lawyer communications, and liability for foreign lawyer legal opinions, both of which are relevant to the use and selection of foreign counsel.