PRACTISING OVERSEAS: proposed clamp down if codes of conduct differ between countries

Disagreement and dispute erupted at this week's International Bar Association (IBA) conference in San Francisco over controversial proposals for the regulation of lawyers who work temporarily in another country.

The IBA's business law section has recently come under fire from senior European lawyers over draft recommendations from its multi-jurisdictional commercial practice task force.

They deal with so-called fi/fo lawyers - those who fly in and then fly out of a country.

Such activities are often illegal for a variety of reasons, not least because of visa violations, as lawyers enter as tourists.

The draft recommendations say that while foreign lawyers should usually instruct local counsel, they need not do so if they have the required knowledge, even if they are not qualified in that country.

The proposals say lawyers should follow their home country's code of professional conduct, and in the event of a conflict with the host country's code that cannot be resolved, 'the lawyer should consider withdrawing from the representation of the client'.

The draft paper also calls for in-house lawyers to enjoy privilege, which they currently do not in several European countries.

Fernando Pelez-Pier, chairman of both the section and the task force, said the guidelines aimed to deal with a growing problem.

'The evolution of our profession as a result of IT and greater mobility has caused all these dynamics in the rendering of legal services,' he told the Gazette.

'These practices are happening.

We are recognising the problem and bringing it to the attention of regulators.'

The guidelines came under heavy attack from German lawyer Hans-Jrgen Hellwig, first vice-president of the Council of Bars and Law Societies of Europe (CCBE), who resigned his position as an adviser to the task force in protest.

Mr Hellwig criticised the task force for not consulting bars or law societies, for not supporting accepted best practice on cross-border work, and for unrealistic recommendations.

He said they could encourage practitioners to act illegally, a charge Mr Pelez-Pier strongly refuted.

Mr Hellwig argued that the provision on conflicting codes of conduct provides a loophole by not recommending an explicit ban on lawyers flouting the local code because their home codes allow a particular practice.

Mr Pelez-Pier said there were grey areas because a lawyer could effectively practise in another country through telephone and e-mail advice without actually going there.

The draft is scheduled for debate later in the conference.

The section aims to produce a final version - that would not be official IBA policy - and present it to the World Trade Organisation and regulators as the view of business lawyers.

Mr Hellwig said that in such circumstances, bar associations and law societies would submit their own positions in opposition.

Neil Rose