Chapter I

Transnational Lawyering
Lawyers who handle transnational business dealings operate in various contexts. Some are
lawyers in large global law firms—often formed by mergers of multiple firms—that have offices in
dozens of different countries and employ thousands of attorneys. Others serve in more localized
firms, which may be large or small in size. There are some international boutiques, in the United
States and in other countries, that specialize in serving the legal needs of foreigners. But quite a lot
of transnational work falls into the hands of lawyers who have never before done any significant
work of that type. The phenomenon of “globalization,” however one defines it, has increased the
incidence of transnational issues in all sorts of legal practice. Indeed, it is fair to say that every
American lawyer practicing today should have at least a basic understanding of the transnational
aspects of lawyering.
This chapter attempts to orient the student to the rules that govern international lawyers, both in
the United States and abroad. Part A discusses the legal profession from a comparative perspective,
noting certain aspects of the training and practice of lawyers that vary across legal systems. Part B
introduces the rules that govern the cross-border practice of law, focusing on the American Bar
Association’s Model Rules of Professional Conduct. Part C turns to some specific ethical norms,
describing the extent to which they may differ from country to country and highlighting the conflicts
such differences present.
A. The Lawyer’s Role in Different Legal Systems
Probably the first step in understanding the legal profession in any given country is to know the
terms by which its members are designated and what those terms mean, particularly when the
foreign profession is subdivided into different categories. In the United States, for example, the term
“attorney at law” describes lawyers engaged in litigation as well as those engaged in transactional
practice; in the United Kingdom, by contrast, “barrister” is used to describe the former, and
“solicitor” the latter.
In the United States, “notary” refers to non-lawyers who serve the limited role of verifying the
identity of persons executing documents. In Germany, France, Mexico and other civil law systems,
however, the counterpart terms (Notar, Notaire, or Notario) stand for members of a profession whose
educational qualifications may be the same as or fully equivalent to those of persons designated as
lawyers or attorneys, but who serve special functions in certain types of transactions. (The confusion
is such that California has forbidden notaries within its jurisdiction from advertising themselves as
“notarios” because of the "false impressions they were creating among Latino immigrants. Cal.
Gov’t Code § 8219.5.) Consider by way of contrast with the U.S. notary the following paragraphs
about the German Notar:
German civil law notaries play a key role in real estate law, the law of mortgages, the law
 of contracts, corporate law as well as family and succession law. Within the German system of
“preventive justice” the civil law notaries’ function is complementary to the role of a judge. The
intervention of a notary is required by law in cases of important transactions with long-term
effects and a particular economic or personal significance for the parties concerned. Such cases
are, among others, the sale of land, the establishment of a mortgage, the incorporation of a
limited liability company (GmbH) or a public limited company (Aktiengesellschaft), certain
corporate share deals or asset deals and matrimonial property agreements.
Civil law notaries act as independent, impartial and objective advisers to all parties to a
transaction. They examine the intentions of the parties, draft the contracts and instruments
necessary to carry out the intended transaction and ensure that the contractual provisions are in
full compliance with the law. Civil law notaries also verify that the parties have full (mental and
legal) capacity to enter into the intended agreement and that they have fully understood the
legal implications of their commitment. Otherwise, the civil law notary is required by law to
refuse his participation. The idea underlying this system is to establish a preventive legal
control in order to avoid costly and time-consuming litigation about the validity and the
meaning of contractual provisions in the aftermath of a transaction.1
When one has identified the classes of lawyers within the relevant jurisdiction, one should go
on to ask some further questions about the profession there:
(1) What are the structures of the profession as a whole and of the groupings within the
profession that in fact do the legal work? In some cases the bar is quite tightly organized and exerts a
substantial amount of supervision over the activities of its members. It may for example be quite
rigorous about terminating the status of members whose financial integrity has been proved lacking.
It may insist on post-graduate training programs and attempt to maintain standards of professional
expertise. Or it may do none of these things. Within the profession, there may be rampant
individualism or collegial organization. Both poles are represented in the British professions. The
largest firms of solicitors in London are indistinguishable in size and degree of specialization from
their American counterparts. On the other hand, barristers were "traditionally expected to practice
strictly as individuals, their collaboration with other barristers being limited to the sharing of modest
support facilities. Elsewhere custom or rules have stood in the way of the growth of large firms on
the American model.
(2) Rules and practices about entry to the legal profession tell us a good deal about its
composition. Law schools differ substantially from the American model. In most civil law nations,
law school is part of the university, and students enter the study of law coming at 18 or 19 years of
age straight out of the liceo, lycée, or Gymnasium, which are roughly equivalent to high school. At
least in the first years the classes are apt to be huge (some law schools enroll, at least nominally,
some 15,000 students) and are conducted almost entirely by lecture. Later on the numbers may
dwindle as students drop out or shift to other programs. There may be smaller classes and seminars.
In the German system, academic study is capped by a period as clerk or Referendar during which the
aspirant lawyer works for a judge and a lawyer or a government bureaucrat. There may be a general
bar exam conducted not by the school but, as in the United States, by a government examining body.
Thus the minimum guarantees of aptitude afforded by simple admission to the bar are seldom very
reliable and in some cases are non-existent.
(3) Much attention has been devoted to the question of the number of lawyers in different
societies, both in absolute terms and in relation to the population as a whole. It is not at all clear what
relevance such figures have to the concerns of a lawyer trying to work on a specific task in a foreign
country, although one may make some inference about the role of lawyers in that society from such
statistics. Indeed the impetus behind these studies came largely from the political side, from
proponents of the view that America is over-lawyered to the extent that its industrial competitiveness
is diminished by the excessive costs of legal services, in particular of litigation. More careful studies
show that the contrast between the number of lawyers in the United States and other countries has
been much exaggerated and that there is a tendency of countries to move nearer the American
proportions as they become more prosperous and industrialized."
B. The Rules of Transnational Legal Practice
Characteristically lawyers are members of a bar that possesses a monopoly on the practice of
law in a particular jurisdiction—which may be a national jurisdiction, or, as in the United States, a
political sub-unit such as a state. How far that monopoly extends differs from jurisdiction to
jurisdiction. Some countries have been quite open to the presence of foreign lawyers within their
borders—for instance, permitting foreign firms to open offices where they practice domestic law (as
long as the individual lawyers engaged in that practice have local qualifications), or permitting
foreign firms to create partnerships that employ local lawyers. There may be certain restrictions on
the spheres of activity open "to foreigners; the right to appear in court, for example, is one that is
commonly reserved to locals. And some countries have kept their borders completely closed to
foreign lawyers. This has long been in the case in India. In general, then, the fact that one belongs to
the bar of one jurisdiction does not automatically entitle one to practice in another. This situation of
course presents enormous obstacles both to the individual lawyers and to the law firms engaged in
transnational practice.
In recent years, the pace of liberalization in the market for legal services has accelerated. This is
due in part to the General Agreement on Trade in Services (GATS), a multilateral treaty that grew
out of the treaty creating the World Trade Organization. WTO members (as of January 2019, over
160 countries) have committed to liberalizing trade in services, and many have taken steps
specifically intended to facilitate trade in legal services across borders. Germany, for instance,
permits a limited practice for lawyers from all countries that are members of the World Trade
Organization. Bundesrechtsanwaltsordnung §§ 206–209. The desire to remove barriers to trade in
services within particular regions has also been a contributing factor. For example, a European
Union directive mandates that each member state adopt rules liberalizing the regulation of lawyers
from other EU members.2 In each member state, lawyers from other European states may practice
(subject to restrictions as to courtroom work) under their home country title, and may give advice
“on the law of [the] home Member State, on Community law, on international law and on the law of
the host Member State.” Thus a Spanish abogado can work in Germany using that title. After three
years in the country, a foreign lawyer may drop that title. And, of course, the possibility of reciprocal
access to foreign markets motivates some countries to open their own.
Within the United States, several steps have been taken to loosen restrictions on practice by
foreign lawyers. First, some states now allow foreign lawyers to sit for their bar examinations
without completing a full three-year course of study in the United States. They may require
candidates to have completed a one-year LL.M. program at a U.S. law school, but may also accept
candidates who have met other specified requirements. By way of this path, many foreign lawyers
have become fully licensed to practice law within the United States. Second, in most states, foreign
lawyers may alternatively be licensed to practice as “foreign legal consultants” without taking a bar
examination. New York adopted the first such rule in 1974. N.Y. Court of Appeals Rules Part 521.
Under this rule, such a legal consultant may give advice about her own country’s law and may even
advise clients on New York and U.S. law if based upon advice from a regular member of the New
York Bar. Legal consultants are subject to discipline by the New York Bar in the same "manner as
other attorneys. Although the ABA has approved a Model Rule for the Licensing of Foreign Legal
Consultants, state laws vary widely. Third, foreign lawyers may be permitted to perform work in a
particular jurisdiction on a temporary basis. For instance, it has long been customary to allow
members of other bars to appear by leave of the court, pro hac vice, in a particular lawsuit. It has
also been generally regarded as legitimate for lawyers who are not licensed in a particular state to
represent a party in an international arbitration being held there.3 And more recently, a number of
states have adopted a temporary practice rule (also known as “fly in, fly out,” or FIFO) aimed at
transactional lawyers. These states permit not only lawyers from other U.S. states (as in the ABA’s
Model Rule 5.5(c), below) but also foreign lawyers to render legal services of limited scope,
provided that they meet certain requirements and do not establish permanent offices in the state.
These rules typically authorize services that are performed for a client in the lawyer’s home country,
are related to a matter arising in that country, or are governed by foreign or international
law.4Nevertheless, plenty of gray areas remain regarding the latitude of lawyers to serve clients in
other jurisdictions. Presumably a lawyer could consult with a client in state X by telephone from an
office in state Y—or by writing a letter, email, or fax. What about taking a trip to the client’s state to
consult more personally face to face? In El Gemayel v. Seaman, 533 N.E.2d 245 (N.Y. 1988), a
Lebanese lawyer who made phone calls to a New York client and traveled once to New York in
connection with child custody proceedings in Lebanon was held not to have illegally practiced in
New York since his contacts were “incidental and innocuous” and so he was allowed to collect his
fee. On the other hand, Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court, 949 P.2d 1
(Cal. 1998), cert. denied, 525 U.S. 920 (1998), held that a New York firm had unlawfully practiced
law in California in connection with a software marketing agreement by sending lawyers to
California to confer with officers of the client, to interview possible arbitrators, to negotiate with the
opposing party and, after initiating arbitration, to settle the matter.ABA Model Rule of Professional
Conduct 5.5 addresses the practice of law across jurisdictional boundaries:RULE 5.5Unauthorized
Practice of Law; Multijurisdictional Practice of Law(a)A lawyer shall not practice law in a
jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another
in doing so."