Vetting Foreign Attorneys: How Do You Say “Surprise” in Spanish?
Submitted by: Raoul Rodríguez-Walters, CFP®
What do you know about foreign legal systems and attorneys practicing abroad?
Like most, probably not much. Yet when a client needs legal help in a different country they often look first to their US attorney for a recommendation. And what do we do? If we do not have someone already in mind our inclination is to seek a referral, maybe from one of the list serves, and send it along to the client. We can do better than that. The first question to ask is what qualifies the referral to practice law? The answer may come as a surprise.
We all know who can practice law in the US. Attorneys are accepted as professionals who have met a series of established requirements. In fact, the definition of a “professional” in the US could be a person who has been certified by a governing body of peers to practice a given profession, based on an educational component, passing a professional examination, adherence to certain ethical standards and completion of continuing education courses. Doctors and attorneys are professionals who meet this definition.
We often assume that foreign attorneys have met those same kinds of standards. NOT NECESSARILY SO! Let us take Mexico, for example. Attorneys in Mexico are simply required to graduate from college with a degree in law, and then they can hang the proverbial shingle. There is no exam. There is no specific code of ethics. There is no requirement that they take continuing legal education courses, nor is there any organized oversight. While bar associations exist, membership is voluntary and they have no authority to revoke the ability to practice.
Further, the concepts of “fiduciary duty” or “conflicts of interest” as applied to professionals here in the US, are poorly understood, if at all, in many civil law jurisdictions, including Mexico. I am not disparaging Mexican attorneys. Quite the contrary, there are many excellent advocates and I have worked with many that I hold in great esteem. However, given the different standards between the US and many other countries, not just Mexico, increased due diligence is in order if you are planning to engage a foreign attorney, or are responsible for recommending a foreign attorney.
Taking the time to identify an attorney with whom you feel comfortable, and for whom you can obtain objective positive references, can make the difference between success and failure to you and your clients. I suggest that when interviewing a foreign attorney you create a questionnaire from which you can obtain some basic information. My first choice would be to ask the attorney to answer the questions in writing so that you can judge the written English capabilities and written work product.
At a minimum, I would ask the following questions of a prospective Mexican attorney, but the questions are appropriate for the engagement of any foreign attorney. To make this process useful, of course, you must then complete your own due diligence on the answers you receive. What law school did you attend? Mexico has over 100 accredited law schools! The disparity in legal education from the top law schools to those in the lower tiers is very significant. It is possible, for example, to get a law degree over the internet from a couple of these law colleges. The best law schools are located in the largest cities of the country such as Mexico City, Monterrey and Guadalajara.
Interview questions: Where did you study law? What year did you graduate? May we see a copy of your diploma? May I see your license please? College graduates in Mexico are required to obtain a professional license called a Cédula Profesional before they can practice a profession. In actual fact many people, including law students, practice a profession without being licensed to do so. Interview questions: How is a person licensed to practice law in your country? Have you met all the requirements? Can you provide me with a third party certification that shows that you are licensed to practice?
Membership in a Bar Association. As I mentioned, in Mexico membership in a bar association is voluntary. The largest bar association is the Barra Mexicana Colegio de Abogados (www.bma.org.mx). The Mexican Bar Association requires members to adhere to a strict code of ethics. There are other membership possibilities open to Mexican attorneys such as the US-Mexico Bar Association ( www.usmexicobar.org) and even the American Bar Association (www.abanet.org). From my experience voluntary membership in a bar association is a very good indicator as to how serious the attorney takes his or her responsibilities as a professional. Interview questions: Are you a member of any bar associations? If so, please list them here with your membership information. If you are not a member of a bar association, please explain why not?
Finally, if you are uncomfortable working with an attorney that is only licensed to practice in a foreign jurisdiction, you might want to consider working with an attorney that is licensed in the US as well as in that other jurisdiction. American law firms with significant US-Mexico business, for example, principally in Texas and California, have hired Mexican attorneys and assisted them in obtaining US law degrees. The advantages are obvious. These professionals will speak English and will be beholding to US standards of professional practice. More importantly, in my opinion, they should be familiar with the differences between the two legal systems, and how the law is practiced.
As advocates for our clients we need to take a bit more care when dealing with engagements that involve foreign attorneys. It is in your best interests, as well as that of your client’s, to ensure that your foreign counterpart’s professional endeavors meet, as closely as possible, our own standards of professional practice. By so doing you could avoid an unfavorable “sorpresa”.
About the Author: Raoul Rodríguez-Walters, CFP® was managing partner of a law firm in Mexico, although he is not an attorney.
