U.S.-SPAIN COMPARATIVE PROFESSIONAL RESPONSIBILITY AND "DOUBLE DEONTOLOGY"
The objective of the Double Deontology Group is to create a body of research and training tools regarding the study of U.S.-Spain Comparative Professional Responsibility. In the broadest sense, "U.S.-Spain Comparative Professional Responsibility" is the study of the differences and similarities between the codes, customs, professional rules and judicial decisions governing the ethical and legal standards for the practice of law by attorneys in the U.S. and Spain. The objective of U.S.-Spain Comparative Professional Responsibility is to resolve problems of "Double Deontology". “Double deontology” describes the situation in which an attorney is obligated to simultaneously follow two different sets of ethical standards. Taking typical international practice of law examples, we can highlight some common issues of "Double deontology":
Transnational Legal Practice Issue 1
ABC Company, an American Computer Company located in Los Angeles, California, wants to sell computers in Spain. ABC asks its lawyer who is licensed to practice law in California to draft a sales agency agreement that it will use in its dealings with a Spanish distributor of computers in Spain. This lawyer has previously prepared such an agreement for this client for use with respect to distributorships in several states of the United States.
Questions RaisedThis situation raises at least the following cross-border legal ethics practice of law questions: (1) What are the lawyer's professional responsibilities if the lawyer in California undertakes the sole representation of his client in the lawyer's home jurisdiction of Los Angeles, California, and this representation involves advising ABC on the laws of Spain? (2) Is the lawyer in Los Angeles who represents ABC ethically restricted from temporarily traveling to Spain and doing legal work for his client in Barcelona? (3) If the lawyer in Los Angeles decides that he or she is not competent to advise on Spanish law, what are his responsibilities with respect to selecting competent counsel who resides and practices law in Spain? (4) Once the American lawyer who represents ABC selects competent local counsel in Spain to advise on matters of Spanish law, what are his professional obligations as to the Spanish lawyer's activities? (5) Which country’s professional standards would apply to these lawyers? (6) Is the lawyer in Spain who now collaborates professionally with ABC's lawyer in Los Angeles ethically restricted from traveling to Los Angeles to collaborate with the ABC's lawyers in California?
Classification of the questions raised in Transnational Legal Practice Issue 1
(1) The question of competency in regards to providing advice on foreign* law
(2) The question of temporary practice of law in a foreign jurisdiction, known as the FIFO or fly-in, fly-out rule
(3) The question of choosing competent foreign legal counsel
(4) The question of the home counsel's liability for the activities of foreign legal counsel
(5) The question of choice of law rules of ethics
(6) The question of temporary practice of law and collaboration between lawyers from different jurisdictions
* The term "foreign" denotes the law or lawyer from outside of the lawyer's domestic area of practice of law (non-US for US lawyers and non-Spanish for lawyers in Spain).
Transnational Legal Practice Issue 2John Smith, an American in Arizona, wants to buy a piece of real estate in Spain. John finds a lawyer, through an online advertisement, who is licensed to practice law in Spain. The lawyer's office is in Barcelona. John hires her to advise him on the purchase of real property in Tarragona, Spain.
This situation raise at least the following cross-border legal ethics practice of law questions: (1) What are the professional responsibilities of the lawyer in Spain who advertises online, then subsequently provides legal advice through the internet to a person located in Arizona about the purchase of real property in Spain? (2) Which practice of law rules and professional standards would apply to this lawyer? (3) Do Arizona's rules governing the conduct of lawyers or do the rules of Spain apply or both?
Classification of questions raised in Transnational Legal Practice Issue 2
(1) The question of e-lawyering and the unauthorized "extraterritorial" practice of law
(2) The question of choice of law rules of ethics in regards to "extraterritorial" online advertising
(3) The question of choice of law rules of ethics
Double Deontology Group Procedure
Submission of Written Inquiries
All requests for legal research must be submitted in writing by e-mail. Your inquiry must include:
- A brief summary of the facts raising the ethical issue
- The ethical problem as you see it
In accordance with the rules that govern cross-border legal research that the Group conducts, advice may not be rendered in instances where the matter is pending before a court or tribunal, contains a question of substantive law outside of the scope of the professional rules of conduct, pertains to a hypothetical scenario or questions the conduct of another attorney.
Members should initiate their requests by sending an email to:
1 The Group seeks to base its answers on advice provided directly from the state or local bar association of the jurisdiction involved whenever it is available. The Group itself only gives non-binding analytical answers based on the identification and interpretation of the applicable rules of law. It is a non-governmental body and its advice has no binding force. Some jurisdictions in the United States have stated that, as a general rule, they will not take disciplinary action against lawyers who follow the local or state bar association's written advice if they have given the local or state bar addresses all the relevant facts before engaging in the activity in question. That, however, is a matter of each jurisdiction, not a power of this bar association nor of any particular bar association since the courts of the competent jurisdiction are the ultimate interpreters of the law and the applicable rules of professional conduct.