Andrew Perlman
The new year may be fully under way, but it’s not too late for some resolutions that could make it easier for foreign in-house lawyers to work in the U.S. The American Bar Association’s Commission on Ethics 20/20 has already suggested numerous changes to its Model Rules of Professional Conduct to address advances in technology and the increasing globalization of law practice. Now several new resolutions deal specifically with foreign in-house lawyers.
One proposal would amend the rules on pro hac vice (“for this time only”) admissions to allow judges to authorize foreign lawyers to appear before U.S. courts and agencies on pending matters, subject to some limitations.
“The commission’s proposals are designed to insure that corporate clients have access to their choice of counsel, and are able to use the lawyers who are most able to help them in a particular case or matter,” explained Andrew Perlman, a corporate law professor at Suffolk University Law School in Boston.
Perlman, who serves as chief reporter for the commission, is also a member of the Massachusetts Supreme Judicial Court’s standing advisory committee on the rules of professional conduct.
The second proposed rule change would authorize foreign lawyers to serve as in-house counsel from an office within the U.S. when they are serving only their corporate client.
Perlman explained that this change would allow U.S. companies with foreign affiliates, or foreign-based companies with U.S. offices, to bring foreign lawyers here for a limited time.
The commission report said, “These companies routinely encounter legal issues that implicate foreign or international law and want the advice of trusted lawyers from other jurisdictions. [They] often find that this advice can be offered most efficiently and effectively if those lawyers relocate to a corporate office in the U.S.”
A corresponding proposal amends the rule related to registration of in-house counsel, adding foreign in-house lawyers to those eligible to register. Under the model rules, which most states adopt, in-house counsel are required to register with the state bar in the jurisdictions where they work.
A fourth proposed change—not specifically for in-house counsel—deals with choice of law issues arising out of conflicts of interest. It allows lawyers and their clients to specify up front the jurisdiction where the predominant work will occur. This in turn will help judges determine what jurisdiction’s law to apply to any related case, Perlman said.
He added that this change will be of interest to general counsel, “because outside law firms may increasingly ask in-house counsel to agree to these kinds of provisions at the outset of the relationship.”
The Association of Corporate Counsel didn’t immediately comment on the proposals, but the group has previously urged the ABA to make its model rules more flexible for in-house counsel.
The Ethics 20/20 Commission was created in mid-2009 to address changes in the way law is practiced around the world. It has successfully passed several previous resolutions.
The proposed resolutions will be presented to the ABA’s governing body, the House of Delegates, at the group’s mid-year meeting in Dallas in early February.
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