This afternoon, I will have the great pleasure of lecturing in Paris on UMKC’s CLE Abroad program,* along with my good friend and colleague Micah Wells. Micah is one of those legal entrepreneurs you’re always hearing so much about, but with a decidedly unique arena: economic development across Africa. He really is a juggernaut, and to be listed on the same bill with him is a high honor. Y’know how James Bond’s boss, M, is always saying something like “contact our man in Hong Kong”? Well, Micah is our man in Germany. And Switzerland. And Djibouti. (You cannot make this stuff up.)
Our presentation topic is truly too broad for a single hour’s worth of CLE ethics credit, but we’ve focused the discussion on a few points that are applicable not just to guys like us whose practices cross borders, but any lawyer in North America whose clients’ issues cross borders. And I’m here to tell, you, that’s everybody in the practicing bar.
Issue 1: Be competent.
Yes, yes, we all know this one. A traffic lawyer shouldn’t be handling a murder case, and a public defender shouldn’t draft his neighbor’s new LLC operating agreement. But those are simplistic examples. A divorce attorney has to serve her client’s husband wherever he is, but she also must understand that she can’t serve the guy in Mexico by mail. She might need to outsource that function in order to actually be competent in the representation. [See MRPC 1.1, 1.3, 1.4(a)(2), and 2.1.]
Issue 2: Take reasonable fees.
If it takes a patent litigator four hours to research how to extract evidence from an offshore third-party, but still can’t make it happen, is it reasonable to bill her client for that research? Maybe, maybe not. But if she brings in someone better versed in the proper procedure, the cost to the client could be significantly lower. [See also Issue 1… and MRPC 1.5.]
Issue 3: Collaborate (or… know when to refer out, outsource, etc.).
This is a tough sell for litigators of all stripes– especially Mr. Incredulous Big Firm Partner from an earlier post (The Golden Opportunity of Efficiency). The simple fact is, unless the attorney handling the case deals regularly with transnational issues, the client’s best interests are likely better served by bringing in a hired gun. Just make sure it’s done properly, and with the client’s knowledge. [See MRPC 1.6, 1.7, 1.8, 5.1, 5.2, and 5.3.]
Issue 4: Supervise Your Foreign Colleagues Effectively
Sooner or later, you will have to have somebody in another country handle something for you. That creates a huge challenge of trust, but often one that cannot be surmounted, but if Singaporean law is going to govern how something gets done, your performance on the UBE may not fulfill your competency requirement (Issue 1). You don’t have local counsel in Singapore? Fine– call around. Hit up Google for some assistance. Know that U.S. diplomatic missions keep a list* of local, U.S.-friendly attorneys who have indicated a willingness to help. [See MPRC 5.1.]
Notice the common thread here… outsourcing. It all ties together with outsourcing.
Simply put, Atticus Finch*** could handle the breadth of most litigation in 1930’s Alabama. He’d know better today. Saul Goodman in the modern era, well… I wouldn’t bet on it. Mr. Finch nowadays would readily recognize the need to rely on outside experts, even if his case is heard in a small town courtroom before jurors in overalls.
* Yes, a shameless plus for UMKC CLE Abroad and the concept more generally, but this really is a great way to explore the world while fulfilling a licensure obligation. I highly recommend it, no matter your practice area.
** Found on each U.S. Embassy website– including the one for Paris. Simply go to the respective Legal Assistance page and scroll to “Attorneys”. Many lists indicate not only practice-area specifics, but also whether that foreign lawyer is admitted here in the U.S. I’ve had pretty good luck finding top-flight colleagues this way.
*** Mockingbird Atticus, not Watchman Atticus.