T he American Bar Association’s Commission on Ethics 20/20 is suggesting ethics rule changes that could make it easier for foreign in-house lawyers to work in the U.S.
One proposal would amend the Model Rules of Professional Conduct on pro hac vice admissions to allow judges to authorize foreign lawyers to appear in U.S. courts and agencies on pending matters, subject to 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,” says the commission’s chief reporter, Andrew Perlman, a Suffolk University Law School corporate law professor.
The second proposed 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 explains 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 third 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 just 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, which will help judges determine what jurisdiction’s law to apply to any related case. Perlman says 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 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 House of Delegates, at the group’s midyear meeting in Dallas in February. •