Legal Ethics in International Practice. Andrew Melsheimer Thompson & Knight LLP

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1 Legal Ethics in International Practice Andrew Melsheimer Thompson & Knight LLP

2 Needs natural gas to feed chemical plant

3 Has excess natural gas Photo by Tod Baker, available at flickr.com

4 Let s make a deal!

5 New York, New York Arbitrate in New York City Apply New York law

6

7 v. Counsel: Tribunal:

8 Do Texas ethics rules apply? A lawyer is subject to the disciplinary authority of this state, if admitted to practice in this state or if specially admitted by a court of this state for a particular proceeding. In addition to being answerable for his or her conduct occurring in this state, any such lawyer also may be disciplined in this state for conduct occurring in another jurisdiction or resulting in lawyer discipline in another jurisdiction, if it is professional misconduct under Rule TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT Rule 8.05(a)

9 Contract executed Arbitration filed March 1997 June 2007 October 2013 Breach Brazil dismantles plant

10 Candor Rule 3.03 Candor Toward the Tribunal (a) A lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal;

11 A tribunal? Yes. Tribunal includes arbitrators. TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT, Terminology

12 false statement of material fact? There are circumstances where failure to make a disclosure is the equivalent of an affirmative representation. TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT, Rule 3.03, Comment [2]

13 Am I required to fix it? Yes. Persuade client to authorize correction and if not successful, take reasonable remedial measures, including disclosure. TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT, Rule 3.03(b)

14 DO NOT PERPETUATE THE DECEPTION

15 Legal arguments? A lawyer shall not knowingly fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel. TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT, Rule 3.03(4)

16 How aggressive can I be? A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless the lawyer reasonably believes that there is a basis for doing so that is not frivolous. TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT, Rule 3.01

17 DISCOVERY 50 Redfern Requests

18 In the course of litigation, a lawyer shall not take a position that unreasonably increases the costs or other burdens of the case or that unreasonably delays resolution of the matter. Effectively protect the legitimate interests at stake? Gain an advantage unrelated to the merits? TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT, Rule 3.02, comments [6] & [7]

19 Can I withhold documents? A lawyer shall not unlawfully obstruct another party s access to evidence; in anticipation of a dispute unlawfully alter, destroy or conceal a document or other material that a competent lawyer would believe has potential or actual evidentiary value; or counsel or assist another person to do any such act. TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT, Rule 3.04(a)

20 Witnesses What privilege applies?

21 The expert witness dilemma TRE 503 Confidential communications Made for the purpose of facilitation rendition of professional legal services Is an expert or third party witness on your side included?

22 The expert witness dilemma TRCP Requires disclosure of all documents, etc., provided to, reviewed by, or prepared by or for the expert

23 Let s tell the witness not to disclose our conversations or documents shared with them. NO A lawyer shall not unlawfully obstruct another party s access to evidence... or counsel or assist another person to do any such act. TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT, Rule 3.04(a)

24 Let s tell the witness not to disclose our conversations or documents shared with them. NO A lawyer shall not falsify evidence, counsel or assist a witness to testify falsely.... TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT, Rule 3.04(b)

25 What about the arbitrators?

26 IBA Guidelines on Conflicts of Interest in International Arbitration Conflicts of Interest

27 The committee is preempted from resolving questions involving judicial ethics but feels judges should avoid every situation that might give the impression that his decisions were influenced by favoritism or bias. Opinion 135 of the Committee on Professional Ethics, (Canon 6 of the Texas Canons of Ethics (replaced))

28 WHO IS POLICING THE CONDUCT OF LAWYERS SITTING AS ARBITRATORS?

29

30 Andrew Melsheimer 1722 Routh Street Suite 1500 Dallas, Texas om

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