Affiliation agreements with foreign lawyers are ethically
According to your opinion request, your law firm has a growing practice in the area of international trade in which you represent clients who transact business on a global scale. To better serve your clients, your firm would like to establish a network of qualified lawyers in various foreign jurisdictions. In order to accomplish this objective, you propose to enter into several affiliation agreements with foreign counsel. Your letter characterizes these proposed agreements as follows:
"Such agreements would simply be mutual moral commitments to consider using each other when our clients have a need overall. No legal commitments would be undertaken, there would be no sharing of revenues, and neither affiliate would engage in the practice of law outside of the jurisdictions in which they are licensed. We would list the affiliated law firms by name and city on our letterhead as 'affiliated offices' or by the use of some similarly descriptive phrase. These agreements would be terminable by either party at any time."
Your inquiry is whether such affiliation agreements with foreign lawyers are ethically permissible under the Alabama Rules of Professional Conduct.
The Disciplinary Commission of the Alabama State Bar is of the opinion that the Alabama Rules of Professional Conduct do not prohibit an Alabama lawyer from associating or affiliating with a foreign lawyer to assist clients of the Alabama lawyer who are in need of legal services in the country in which the foreign lawyer practices. However, any foreign attorney so associated must be a member of a recognized legal profession in the foreign jurisdiction in which he or she practices and the arrangement must be in compliance with the laws of Alabama and the laws of the foreign jurisdiction.
The Alabama Rules of Professional Conduct contain no specific prohibition against an Alabama lawyer associating a foreign attorney to assist in the representation of clients. However, Rule 5.4 of the Rules of Professional Conduct does restrict the extent to which an Alabama lawyer may associate or affiliate with a nonlawyer for the purpose of practicing law. Rule 5.4(a) prohibits an Alabama lawyer from sharing legal fees with a nonlawyer. Rules 5.4(b) and (d) prohibit Alabama lawyers from forming a partnership or other professional association with a nonlawyer. The primary purpose of Rule 5.4 is to ensure that, in the course of representing their clients, Alabama lawyers exercise independent professional judgment and are not subject to control or supervision by nonlawyers. The Disciplinary Commission is of the opinion, however, that foreign lawyers who are members of a recognized legal profession in the foreign jurisdiction in which they practice would not be "nonlawyers" within the meaning of Rule 5.4, and, therefore, an Alabama attorney who associates or enters into an affiliated relationship with such a foreign attorney would not be in violation of that Rule.
Whether a foreign attorney is a member of a "recognized legal profession" requires a factual determination taking into consideration the legal structure of the jurisdiction in which the foreign attorney practices as well as the nature and extent of legal services customarily performed by the foreign lawyer. In most instances, a person who is specially trained to provide legal advice concerning the laws of the foreign jurisdiction and is licensed by the foreign jurisdiction to represent clients in the legal and judicial system of the jurisdiction, would qualify as a member of a recognized legal profession in the foreign jurisdiction.
However, the Disciplinary Commission is aware that in some foreign jurisdictions an individual who is licensed as a notario or Notary Public is permitted to provide legal services which only a duly licensed lawyer could provide in Alabama. An individual who is licensed only as a Notary Public in a foreign jurisdiction would not be considered, in the opinion of the Disciplinary Commission, a member of a recognized legal profession and would therefore be a "nonlawyer" within the meaning of Rule 5.4. Therefore, an Alabama lawyer may not enter into an association or affiliation with such an individual.
Before affiliating with a foreign lawyer, an Alabama lawyer must take all reasonable steps to ensure that the foreign lawyer is a member of a recognized legal profession authorized to engage in the practice of law in the foreign jurisdiction and that the arrangement complies with the laws of Alabama and the laws of the jurisdiction where the foreign lawyer practices. If these conditions are met, it is the opinion of the Disciplinary Commission that you may ethically associate a foreign lawyer to assist in the representation of your clients under the terms described in your opinion request.
This opinion is not intended to restrict or impose additional requirements on the formation of any type of professional relationship between Alabama lawyers and lawyers licensed in other states. A lawyer who is duly licensed to practice law in any one of the United States or its territories is clearly a member of a recognized legal profession within the meaning of this opinion.
This opinion is consistent with Formal Opinion 01-423 of the American Bar Association Committee on Ethics and Professional Responsibility and some of the language herein is derived from that opinion.
Office of General Counsel