Professors unveil major international ethics proposal
July 19, 2010
When a U.S. lawyer appears before the Iran-U.S. Claims Tribunal in the Netherlands against an Iranian party, whose legal ethics govern? For U.S. lawyers the answer can be anything but clear, and Professors Laurel Terry and Catherine Rogers proposed a fix to this thorny issue at the fourth annual International Legal Ethics Conference at Stanford Law School.
Together with Stephen Denyer of Allen & Overy in Germany, Professors Terry and Rogers participated in a session on July 17 titled "A Model for International Choice of Law and Coordination of Attorney Regulation" during which Professors Terry and Rogers unveiled their draft of new proposed Model Rule 8.6.
The current rules are designed for U.S. attorneys practicing in foreign countries and do not work perfectly, according to Professor Terry, who is the Harvey A. Feldman Distinguished Faculty Scholar.
"For example, if you are a U.S. lawyer appearing before the U.S.-Iran Claims Tribunal, which is seated in the Netherlands, because that tribunal has not adopted rules of conduct for lawyers, under the current Model Rule 8.5 you would be bound by the Dutch rules of professional conduct. This is true even though the tribunal, the case, and the parties have no relationship to Dutch law or Dutch procedures," she said. "Our proposed rule would change that. If a tribunal has not adopted any rules of professional conduct, then U.S. rules would apply."
“International practitioners need a more rational approach to this issue than the incomplete and patchwork system we have under the current ABA Model Rules of Professional Conduct,” said Professor Rogers, a scholar of international arbitration and legal ethics.
Professors Terry and Rogers plan to present a version of their proposed rule to the American Bar Association for consideration as part of its Ethics 20-20 reform efforts.