2002-02

QUESTION:

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.

ANSWER:

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.

DISCUSSION:

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

3/28/02

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