When Ethical Rules Differ

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Long title: 
Hot Topics in Professional Ethics: How to Act When Rules Differ?
Cunningham, Clark D.
Clarke, Geraldine
Chemla, Denis
Choi, Chung Hwan
Conference title: 
International Bar Association Annual Conference
Conference location: 

To Be Presented on Monday, October 4 10am

Experience has shown that ethics rules may differ between common law and civil law jurisdictions, between continental and Latin American civil law countries, and in other situations. How can law firms practicing in multiple jurisdictions anticipate and address such differences? Are there generic ethical principles that provide common ground?

We will start by analyzing a case in which conflict of interest rules differed between two jurisdictions within the same country, the USA, prompting a lawsuit that gained national attention. We will present the key three paragraphs in the actual client engagement agreement which allegedly constituted a valid waiver of future conflicts. Persons attending the session will then be divided into small groups to analyze whether these provisions would be considered appropriate under the ethical standards of their own jurisdictions.

Here are excerpts from the media coverage:
Conflict fight has broad reach: Lawyers watching as McKesson Corp. seeks to force firm off case

... [the] dispute has pitted [a] multinational legal behemoth ... against [a local law firm] in a conflict-of-interest case. Law firms around the country are watching this case ... and waiting to see how a Fulton County Superior Court judge would rule on a matter which — while itself involving a multi-million dispute — may also hold far-reaching consequences for corporate attorneys and their clients. At issue was medical service provider McKesson Corp.’s demand that [a law firm] which in May signed on as outside counsel to two McKesson affiliates in a Pennsylvania bankruptcy case cease its representation of a couple involved in unrelated arbitration proceedings in Atlanta against a third McKesson entity.

... According to [a law firm spokesperson], the disconnect between the various McKesson companies — which are headquartered in three separate states — and the relatively minor work being handled by his firm’s Pennsylvania lawyers comply with the engagement letter’s waiver of conflict-of-interest concerns. ... “McKesson is the 16th-largest company in the world … [and] one of the most sophisticated users of legal services in the world,” said [the law firm spokesperson], ridiculing the notion that the company and its lawyers would have approved the waiver without foreseeing the possibility of another McKesson entity hiring [us] for unrelated services."

Attached are:
1) the three paragraphs from the engagement letter
2) a chart comparing the relevant conflict of interest rules in Pennsylvania and Georgia
3) Code of Conduct for European Lawyers 3.3 -- Conflict of Interest (CCBE)
4) Code of Ethics for Foreign Legal Consultant: Article 17 (3) (Korean Bar Association)

Complete details on the case are available at:

IBA10-HotTopics-ConflictRulesComparison.pdf33.91 KB
IBA10-HotTopics-McKesson-EngagementLetter.pdf144.68 KB