International insurers and reinsurers are likely to retain legal services from local attorneys in 29 Latin American countries. Consumers of legal services in Latin America often question whether the rules of professional conduct of these foreign suppliers are comparable to those in other jurisdictions, such as the UK or the US.
As a general rule, the legal profession is regulated across Latin America. Typically, local bar associations compile “Codes of Conduct” which are enforced as mandatory rules imposed upon member attorneys. However, there are more specific instances of additional regulation that arise in a variety of special situations.
In Colombia, for example, the local “Disciplinary Code for Attorneys” was not prepared by a professional association. It was enacted by Congress in 2007, through the enactment of law 1123. The entity in charge of overseeing professional conduct and applying sanctions for violations is the Superior Council of the Judiciary, along with lower Sectional Councils. In contrast to Colombia, where the rules are created by the legislative, but enforced by judicial authority, in Chile the local Code of Ethical Conduct is a set of rules drafted by a private entity -the Chilean Bar Association (which is organized as a union). Given the privatized nature of these rules, there were doubts as to whether they could be binding on attorneys who are not members of the Chilean bar (which is voluntary). In its ruling 2582 of 2012 (consideration #15), the Chilean Supreme Court decided that the Code of Ethical Conduct is applicable to all Chilean lawyers regardless of whether they are affiliated to the local Bar.
The comparison between the rules of professional conduct in Colombia and Chile reveals that the form through which regulations are developed in Latin America can provide some insight as to the enforceability of said rules.
Attorney’s Duties in Latin America in Comparison to Common Law Jurisdictions
In an effort to provide a crystallization of the rules of professional conduct that may be encountered in Latin American jurisdictions, in 1997 Mercosur (Spanish acronym for “Southern Common Market”) issued the “Code of Ethics for Mercosur Attorneys”. This Code was developed using existing models, including the “Code of Conduct for Lawyers in the European Union”, the “Code of Professional Ethics for Attorneys in Ibero-America”, and codes of conduct applicable in Argentina, Brazil and Uruguay. This is the first joint effort amongst Latin American countries to compile such a body of rules, which may be indicative of the prevalent regional criteria.
Under the title “Duties of Attorneys” (3.2.4), the Code outlines general duties, mentioning the need to conduct business with independence, honesty and good faith, and favoring conciliation between the parties to avoid initiation of court proceedings whenever possible. The Code also refers to “incompatibilities” relating to the rules applicable in each member State (3.2.5) and confidentiality (3.2.8).
Not surprisingly, conflict of interest is not dealt-with extensively, nor is there direct reference to privileged information, such as would derive from client-attorney interactions. The Common Law concept of attorney-client privilege does not have an exact equivalent in the Civil Law structure adopted by Latin American nations. In Latin American jurisdictions, documents are not considered “privileged”. Instead, although not equivalent, the attorney has a general duty of “confidentiality” relating to the information acquired while involved in a case. The elaborate framework of tests and considerations used to determine if evidence is privileged, or how the privilege can be overcome, is simply absent in the Latin American region.
The difference between the Common Law and Civil Law approaches in respect to privilege/confidentiality may have to do with the fact that the duty to fully disclose evidence is not as developed and/or enforced in Latin American jurisdictions. In practice, attorneys in the region are hardly concerned with the requirement to disclose evidence to their counter-parties, and therefore the shield of attorney-client privilege is not a valued component of the system. The issue of privileged information may become relevant if the case will be adjudicated outside of Latin America.
Not only can certain basic concepts be absent in one jurisdiction or the other, but also the same principle can be interpreted differently in civil or common law countries. In an article titled “The Globalized Practice of Law: Part Two It's a Small World After All:Cultural Competence with Your International Brethren”, Elayne E. Greenberg explains differences between US rules and European civil law rules, indicating that while they both appear to articulate similar core values such as professional independence, confidentiality, and conflict-free representation, the actual interpretation of these rules and the order in which they are prioritized are different and require a more nuanced understanding of the legal system and broader culture in which they live.
Can Rules of Professional Conduct be Unified?
To promote “the ideals and integrity of the legal profession”, the International Bar Association has made attempts to provide unified rules for attorneys across different jurisdictions and legal systems. In 2011, this institution published the “International Principles on Conduct for the Legal Profession” (originally, the International Code of Ethics, which was first adopted in 1956 and re-edited in 1988).
These principles reflect 10 core values which are at the heart of the rules of professional conduct in many jurisdictions: 1) Independence; 2) Honesty, integrity and fairness; 3) Conflicts of interest; 4) Confidentiality/professional secrecy; 5) Clients’ interest; 6) Lawyers’ undertaking; 7) Clients’ freedom; 8) Property of clients and third parties; 9) Competence; and 10) Fees.
Notwithstanding the intention to create uniformity in understanding and enforcement, scholars generally opine that a true global theory of ethics is aspirational and not readily achievable. We tend to agree.
The existence and enforceability of rules of professional conduct are an important factor that is often overlooked when retaining legal services from local vendors throughout Latin America. In an arena where heavy reliance is placed on local practitioners, it is a very important factor to consider particularly when insurer and reinsurers have yet to build a relationship with local counsel. In those instances, it may be best to retain services of relationship counsel and have their connections to local counsel become the bridge for better services.
Posted by Daniel Baron*
*Not licensed to practice law in Florida