Many attorneys representing domestic clients extend their legal advice to foreign and international matters. Unfortunately, some of these attorneys are ill-prepared to provide this advice. Not only are they not familiar with the basic operation of other legal systems, such as those derived from the Civil Law tradition, they are unfamiliar even with the Common Law systems that vary from the U.S.
Domestically, a lawyer is rarely found to have committed malpractice merely because she or he is unfamiliar with the current state of the law in her or his own state, much less other states or federal law. Rather, the presumption is that she or he has sufficient general familiarity with the law and possesses the skills necessary to collect knowledge about the law to provide effective counsel. This is true even for highly specific legal subject matters such as antitrust or securities law (the one significant exception may be patent law). So, if a practitioner does not commit malpractice when advising a client without knowledge of the specific domestic law, why would the standard differ for foreign and international legal matters?
Much as with domestic law, it is incumbent upon an attorney to become familiar with foreign and international law about which she or he is counseling a client. But it is unlikely one could master one (much less all) of the foreign languages necessary to read the foreign legal texts various clients with foreign or international matters may require. In the absence of foreign language competence, a responsible attorney will resort to some English-language books and treatises discussing these matters under the applicable foreign or international law. For a few jurisdictions one may access some statutory or code law or scholarly work that has been translated into English. However, because these works are often general or summary, a familiarity with the internal law of a foreign country is made even more difficult due to specialized language and customs that cannot be overcome by reading a translation.
For a few dollars more (actually, many dollars more) one can solicit advice from an English-speaking attorney in the foreign country at issue. Still, the communication between the foreign and U.S. attorneys may appear to have more meaning than it has in reality, especially when dealing with attorneys from that country rather than U.S. expatriates. The meaning of a term or legal principle discussed out of context can be particularly dangerous. An easy example is the request by a foreign party’s attorney for execution of a document by a “notary public.” As every American attorney knows, a “notary public” is a person who may or may not be a lawyer who will certify by “seal” that the person appearing before the notary has provided identification that appears to establish that she or he is the person he or she claims to be. This request by the foreign attorney seems so perfunctory that one would be surprised that it seems to be of so much importance. However, in the Civil Law tradition a “Notary Public” is usually an experienced, well-qualified attorney who has passed certain levels of examination such that s/he is licensed to act in an official capacity on behalf of a court. Suddenly, the distinction warrants further discussion between the U.S. attorney and the foreign lawyer as to what the foreign lawyer and the foreign lawyer’s client really want and the effect of the notary’s seal. Even more serious differences abound. Yet, many lawyers operate innocently in the dark.
So, how might an attorney deal with this potential malpractice problem? Because malpractice insurers seem to be oblivious to the potential problem of professional malpractice in advising clients on foreign and international legal matters there have been few signposts as to the standards that a court or a professional governing body might set as a minimal level of practice. Clearly, a good initial step is to establish a contemporary record of what legal sources in English (background materials on the legal system itself, statutes and codes, judicial decisions, the works of leading scholars and secondary sources) were examined. After developing a grasp of the legal system, its structure and basic legal materials, it is wise to make a diligent search for and consultation with competent foreign counsel. This effort to obtain and abide by the advice of foreign legal counsel can serve as a strong indication that the attorney is providing accurate and current counsel while also disclosing to the client that the attorney is relying on the foreign counsel. Still, there are likely significant gaps between what the foreign lawyer advised and what the American lawyer understood. Usually, consultation with a U.S. professor or a U.S. attorney familiar with the legal system under consideration will expose the gaps and resolve them.
U.S. attorneys are facing more and more foreign and international legal issues in their daily practices. Clients are dependent on the efforts of attorneys to ferret out the problems that may arise in these foreign and international matters. Often the most pernicious issues are those that do not arise in standard domestic practice or have different and distinct meanings in the foreign context. Unfortunately, these are the very issues that could be the basis of malpractice complaints. Absent guidance from courts or insurers as to the standards for malpractice in counseling clients as to foreign and international matters, a record of serious endeavors to meet the best interests of the client will be a gold standard when these issues arise.