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With the globalization of the law business, you don’t have to be the 500-lawyer New York office of Clifford Chance Rogers & Wells to have partners in foreign countries. Big firm or small, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility says the Rules of Professional Conduct permit such relationships. In Opinion 01-423, made public Nov. 15, the ABA panel says that having a foreign partner doesn’t automatically conflict with Rule of Professional Conduct 5.4, the stricture against splitting fees with nonlawyers and letting them cloud a lawyer’s professional judgment. At the same time, the opinion says, such partnerships must comply with relevant state laws, the foreign lawyers must be recognized as legal professionals in their own countries, and all lawyers in the firm must comply with applicable ethical rules. “As business has become more international in scope, American business officials wish to be represented by law firms capable of advising them concerning the laws of foreign countries,” the opinion says. And if firms want to do that by forming partnerships across borders — as some like Clifford Chance already have — it’s OK, the opinion says. The committee’s staff counsel, George Kuhlman, says that nothing in the canon of ethics ever prohibited such partnerships, but the opinion was necessary because the ABA has received dozens of queries from lawyers seeking assurances they were on solid footing. They were concerned that being a partner with a foreign lawyer would be akin to being a partner with a nonlawyer under RPC 5.4 of the ABA’s Model Rules of Professional Conduct. The pertinent parts of New Jersey’s version of RPC 5.4 are identical to the model code. While ABA ethics opinions don’t automatically apply to the states, they often are followed because a multistate panel of practitioners and professors carefully researches them. Any definitive ruling in New Jersey would have to come from the state supreme court. SMALL FIRMS BENEFIT, TOO Though the big push for transnational firms has come from firms with hundreds of lawyers, many small firms benefit, too, Kuhlman says. “A small firm with a niche-oriented practice may want to have foreign partners,” he says. Albert Dalena, who heads a small firm in Madison, N.J., seems to be a good example. His firm, Dalena, Allocca, Nagle & DeStefano, represents the Italian consular office in Newark, N.J., and many of his clients have business in Italy that requires legal help. For years, Dalena has also been a name partner in Dalena & Maccallini, a Roman firm that, among other things, represents Americans with estate and trust matters in Italy. Dalena says the new rules are good for lawyers because they are good for clients. Having a single firm work on a matter with transnational implications can be better than having lawyers in two separate firms whose relationships might be ad hoc, he suggests. Mark Guralnick, a family lawyer who is of counsel to Short Hills, N.J.’s Budd Larner Gross Rosenbaum Greenberg & Sade, says he deals with foreign lawyers often, on child custody, adoption and abduction matters. While having a foreign partner may not be necessary, the latest opinion is welcome because it recognizes the globalization of the legal business. Steven Richman, a partner in the Princeton, N.J., office of Duane, Morris & Hecksher, says an issue that remains cloudy is the relationship between firms and foreign legal consultants. Under court Rule 1:21-9, which has analogs in other states, foreign lawyers can register with the state supreme court and advise American clients on foreign law. “At what point does this constitute the unauthorized practice of law?” Richman asks. Even the New Jersey Supreme Court said it didn’t know, in an opinion that Dalena is all too familiar with. In a case against him, In re Dalena, 157 N.J. 242 (1999), the New Jersey Office of Attorney Ethics accused Dalena of assisting Maccallini in the unauthorized practice of law. The Roman lawyer was using Dalena’s office to interview clients and hadn’t registered as foreign legal consultant, the OAE complaint said. The court dismissed the case after finding that the consultant rule failed to address too many “unanswered or unanswerable questions.” The court said it would refer those questions to a committee, but there’s been no public report on the issue. Fewer than a dozen foreign legal consultants are registered in New Jersey. Under the ABA opinion, foreign partners of U.S. lawyers must be recognized legal professionals in their own countries. Generally, being specially trained and licensed will do. It’s the American lawyers’ responsibility to take reasonable steps to ensure that their foreign colleagues qualify. The opinion also points out that helping such a foreign partner to engage in the unauthorized practice of law in the United States would violate RPC 5.5(b). In other words, a New Jersey lawyer can get in trouble if her Dutch partner handles an American legal matter for a client in Hoboken — the one in New Jersey, that is.

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