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Journal of International Business and Law

Abstract

Because of the lack of uniformity in the ethics rules of different states and countries, lawyers involved in interstate or international representations often face uncertainty regarding with which state's or country's ethics rules to comply. For example, California's confidentiality rule is extremely broad, only permitting disclosure in rare situations, while New Jersey's contains numerous exceptions. A lawyer involved in a transcontinental transaction may thus face an ethical quandary when deciding whether to disclose confidential information due to the competing obligations imposed by the states involved. Despite decades of debate regarding this subject, the uncertainty for lawyers remains, and the resulting harm to lawyers and their clientscontinues to escalate.

This Article examines the Model Rules of Professional Conduct, as promulgated by the American Bar Association, and carefully scrutinizes the state variations in adoption of these Model Rules which has given rise to this ethical dilemma. It examines in particular Model Rule 1.6, which governs confidentiality, and Model Rule 8.5, a choice-of-laws provision, which itself was promulgated by the ABA in an unsuccessful attempt to resolve our problem. This Article also proposes two sets of solutions, and concludes that only a solution involving federal legislation will finally resolve the issue and create certainty and predictability for lawyers. Finally, the Article analyzes the problem in the international context, and concludes that an international code of ethics to govern international transactions will best provide ethical certainty to lawyers.

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