How Do You Avoid Malpractice When Representing Clients in Foreign and International Matters?

globeMany 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? 

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Google Library Project Preliminary Settlement – Being Scrutinized Worldwide

googlrWe are used to the Recording Industry Association of America aggressively litigating against individuals and organizations, trying to impede copyright infringements of musical works through peer-to-peer networks and/or other file-sharing technologies.  The original Napster was converted to a pay-based music subscription service years ago and, more recently, Kazaa did the same.
 
In light of the heated litigation in the music distribution industry, it was not surprising, by analogy, that Google quickly caught the attention of the Author’s Guild (AG) and Association of American Publishers (AAP) when Google started a massive book-scanning initiative and made the content electronically available over the Web.  This project, known as the Google Library Project (sometimes referred to as “Google Book Search” and formerly known as “Google Print”) led to numerous lawsuits soon after its inception.  After fighting for a few of years over copyright issues, Google reached a preliminary settlement with the AG and AAP for $125 million and also by establishing a royalty registry.  
 
The preliminary settlement has already caught the attention of numerous critics, including the U.S. Department of Justice (DOJ).  The DOJ was inundated with public comments, questioning whether the settlement would give Google monopolistic rights to distribute, for example, numerous out-of-print books.  The DOJ has not formally opposed the settlement, but has started investigating what effects the settlement may have on competition. 
 
A few days ago, public scrutiny of the terms of the Google Library Project preliminary settlement was extended beyond the U.S. borders.  The European Commission (EC) is proactively requesting comments from European Union (EU) authors and publishers, arranging a meeting between EC representatives and EU authors and publishers early in the fall.  During that meeting, the EC hopes to discuss the terms of the preliminary settlement, presumably to evaluate how an analogous settlement in the EU might impact copyrights, as well as antitrust considerations.
 
Although Google’s Library Project continues to grow, there are certainly a lot of remaining issues to resolve.
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More on Coulee Catholic Schools v. LIRC

discriminationAs Professor Esenberg has just posted about, earlier this week, the Wisconsin Supreme Court handed down a very important decision, Coulee Catholic Schools v. LIRC (2009 WI 88). Although some describe the holding as “a dramatic change” in Wisconsin employment law, I think the case is more important for its constitutional discussion. On the actual question presented, I think the Court’s holding was straightforward, correct, and not very dramatic.

In Coulee Catholic Schools, the Court was asked whether a first grade teacher in a Catholic school was subject to the “ministerial exception,” meaning that the school’s religious freedom to select its own ministers and leaders barred her age discrimination claim. Half the courts in the country that have considered this question concluded that a religious school teacher is engaged in sufficient ministry to be included, while half have said that such a teacher is not. The Wisconsin Supreme Court decided that the religious school teacher in this case did engage in and lead sufficient religious activities to fall within the exception.

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