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Private International Law: N. American Litigation. Winter 2007, Patrick Glenn



2.0 COSTS & FEES 7



4.1 Domestic Jurisdiction 16

4.2 Recognition of Foreign Judgments 23

4.3 Class Actions: Jurisdiction & Choice of Law 28






9.1 History 43

9.2 Methodology 44

10.0 DOMICILE 47






1.1.1What is Private International Law

  • Private international is: (i) choice of jurisdiction (2) choice of law

  • [1] Choice of jurisdiction is NOT choice of law. Selection of forum = whether to decide a case, not how to decide a case, or according to which procedural law. We are talking about the threshold, le seuil, according to which forum is recognized or not.

    • also, recognizing foreign jgmts or not – e.g. American obscenely large jury-made awards (e.g. $6M)

  • [2] Choice of law:

    • using choice-of-law rules or methods (of interpretation)

    • applying law  foreign law application, need foreign law experts

1.1.2The legal profession





law school

Canada: 4 years of undergrad + 3L + 1 year of articling & bar school (except Québec – law school after Cégep)

U.S.A. : 4 years of undergrad + 3L

Mexico: 4-5L (no bar exam or articling) – least obligations

qualification of a lawyer (1)


European model that creates incompatibility btw professions

Québec: avocat v. notaire (can't do both at the same time. This incompatibility has been enforced by courts – un avocat can't do things a notaire does)

Canada: divided profession (barrister & solicitor) in practice only

Québec avocats can do a lot.

U.S.A. : barrister v. solicitor distinction exists, but formally a "unified" profession - attorney can do a lot.1

Mexico: clear distinction btw advocates & notaries. But advocate in Mexico can do a lot

what activities do these professionals engage in ? (2)


Canada: lawyers have monopoly to practice

Mexico, Russia (no need to be a member of a bar to practice, existing bars don't really regulate profession)

Professional Liability

all partners share liability in ^ Canada, Mexico, U.S.A.

U.S.A. & Canada: LLP available – limited liability partnership, a new form of practice coming from legislation. Only the personal assets of other partners are protected – the assets of Δ-partner and assets of partnership are not. French: société en nom commun à résponsabilité limitée. No LLP in Mexico

has a firm been liable for professional fault? Has a firm been under disciplinary measures?


Canada has obligatory insurance

U.S.A. : insurance is very optional. Legislation obliges American lawyers to disclose presence/absence of insurance

Are you insured? (3)

  1. Law school matters. In Mexico, there are 500 law schools, many of which are private, for-profit schools. They are not necessarily good. Large public universities have professors who practice law full-time 9-5 and teach outside of those hours (7am - 9am and 5pm – 8 pm). The teaching is very poor : professors read from books instead of lecturing. This is important when choosing a lawyer in Mexico

  2. Indication of corruption: some Mexican law firms ask candidates whether they have any relatives in the government or on the bench. Also: know the precise functions of professions such as "notary."

  3. In Québec, because notaries are separate (they deal with real estate), the avocats pay very little insurance. In Ontario, insurance is much higher. Vast number of lawyers in Mexico are not insured. Damage awards in Mexico are extremely low compared to Canada & U.S.A. Even injury and death awards are miniscule – they are based on daily wage. Glenn's car insurance would be for $40K maximum. Recourse against a firm could be satisfied primarily with its assets – that's why it's better to deal with large firms in Mexico city.

1.1.3Legal ethics & lawyer mobility

  • Internal rules (e.g. C.c.Q.)  choice of law rule + interpretation

  • Spatially conditioned internal rules (e.g. no one can buy more than 25% of shares of federal bank – neither Canadians, nor any other nationals)  rule of public order. So these are internal rules that are given specific application

  • Direct regulation of foreign activity (material private int'l law). E.g. foreigners may purchase up to 10% of beach-side property… "Material" because it provides substantive answer, not just a formula to choose a law

    • Mobility of lawyers : we are concerned with [1] and [3]
^ Comments





Mobility : internal (within a country)

Canada, most restrictive. Lawyers must be members of provincial bars

U.S.A. : practice in another state by a simple motion. No barriers: in many states the bar exams are similar. For permanent transfer, "equivalences" (probably something very easy, since bar exams are so close)

Mexico : lawyers can practice anywhere in Mexico (guaranteed by Constitution)

Mobility: external

Mexico : most resistance to NAFTA mobility. Developing countries fear sophisticated foreign lawyers sweeping their practice

Canada : foreign legal consultant – available to North Americans within N. America. Québec prohibits splitting income with non-Québec bar members. Canada has spasms of resistance, but the bars are not very effective at it.

U.S.A. Seems to be completely open to foreign firms (e.g. Stikeman, Tories practice in New York)

where can you represent me ? (due diligence question)


Canada : bar fees (to finance a disciplinary office – a very heavy one), obligatory insurance. CBA code is "virtue ethics" – not what to do, but "who you are" as a lawyer. In addition, institutions that prosecute for failing to comply with (vague !) codal provisions. Courts upheld vague ethical std's – ethics can't be clear by definition

U.S.A. Legalization of ethics – virtue ethics are inadequate, lawyers need guidance (not just say 'you have to comply with professional integrity', but what this integrity is). Move toward very detailed rules, enforced by courts (not bar institutions). Some courts delegate this authority to agency, some don't (depends on the state)

Mexico: very few lawyers are members of the bar. Bars are simply agencies that promote legal education, welfare, etc. – but no disciplinary authority.

what are the practices of your firm (apply stricter rules than professional ethics?) What are the mechanisms to ensure that a firm actually adheres to its standards? (e.g. Clifford Chance has 45 lawyers working just on that)

Practice unit

Mexico: does not allow multi-disciplinary firms

U.S.A. – some states allow, some don't

Canada: allows MDF (multi-disciplinary firms) in Ontario & Québec, with the requirement that lawyers control the firms. Lawyers cannot be subject to control by other professions. Like with LLP, Canada is libertarian in this sense, but control-freak in others

is the firm multi-disciplinary (crucial for privileged information and conflicts of interest – can't sue an accountant using services of your lawyer if the accountant is a partner with the lawyer)

Conflicts of interest & lawyers

^ U.S.A. & Canada. Shared professional circumstances in our country & U.S.A. State will interfere at the mere possibility of conflict (cf. probability).

Mexico : no disciplining for conflict of interest. Maybe no need to worry? (their firms are not as large). No rules to adhere to high std of conduct (i.e. not to violate loyalty and interest)

control mechanisms against conflicts of interest ?

Will you act against my client in the future ? If you will, with or without client's consent ? This is not about choice of law, but ethics of a lawyer. The rules will always be of jurisdiction where the suit is brought. Choice of law only applies to discipline – never about disqualification.

  • ^ National Mobility Agreement (Canada) now gives members of signatory bars 100-day right to practice in these provinces. Québec signed up but hasn't implemented it yet (and notaries, of course, are not included since they are not lawyers). The article in the material (about '20 days and cases') is outdated. Ignore that information.

  • Mobility: no specific rules, just interpretations

  • Choice of law re: discipline – home or host jurisdiction's law governing law practice. E.g. a B.C. lawyer moves to Ontario for the winter and pisses off clients in B.C. Which disciplinary rules govern this lawyer? P. 11 of CB, footnote 19: choice of law rule – jurisdiction where there was effect of misbehaviour.

    • Glenn: Canadian bar associations will probably not use choice of law rules. They will probably engage in collaboration ("either you act, or we will"). Reasonable question: what does geography have to do with ethics? Big firms don't play the geography games with ethics (p 26-7 CB) – they abide by the stricter of several ethical rules if they deal in different jurisdictions.

    • Clifford Chance has 45 lawyers dealing just with the ethical questions (on discipline and conflicts)

  • Partnerships exist in Canada, U.S.A. and Mexico. Multi-disciplinary firms (e.g. lawyers & accountants) don't need to identify the disciplines in their names. Glenn: investigate MDF with great vigour !

  • Horizontal mobility (going to another firm) happens a lot. If this happens in the course of a case and the firms are representing the opposing sides, there is potential conflict of interest. Arbitrators are the same.

  • Most firms do something about conflict of interest. In Canada some provinces issue guidelines re: setting up Chinese walls. But this doesn't guarantee that the firm will not be disqualified. U.S.A. states refused to issue guidelines re: Chinese walls, cones of silence. Latest question: acting against a current client. In Europe – duty of internal loyalty (if you have acted for someone, you never act against them). In Canada & U.S.A. you may act against former client on an unrelated matter. But the current client, given the size of a firm ? (e.g. a lawyer from a different branch of a large law firm acting against a client in an unrelated matter). Some say it should be possible with consent of the client. Good essay topic.
^, Québec & Ontario Codes of Ethics: professional incompatibility

  • Québec prohibits lawyers from being JJ, police officers, stenographers in court, investigators

  • Ontario prohibits carrying out any other profession that may "impair the exercise of the lawyer's independent jgmt on behalf of clients"

  • CBA is not concerned with purely private or extra-professional activities of a lawyer, as long as they do not bring into question the integrity of the legal profession or the lawyer's professional integrity or competence
^ in ethical rules among U.S.A. states (S. Felleman)

  • Modern trend in law firms: engage in professional activities in multiple jurisdictions which have different ethical rules

  • In the U.S.A. ethical codes are not uniform because each state was free to adopt the ABA Code (1964) selectively.

  • In response, ABA published Model Rules of Professional Conduct (1983), which again were not uniformly well received. Currently most states follow a version of the Rules, and very few follow the Code

    • Glenn: states adopt the voluntary rules created by the ABA at their discretion, and then "legalize" them – i.e. they will be enforced by courts. In many U.S.A. states membership of the bar is not obligatory. Only courts discipline lawyers. By moving into a different jurisdiction, a lawyer is subjected to new ethical laws.
^ malpractice suits against lawyers in U.S.A. (J. Dzienkowski)

  • Malpractice liability has been widened against lawyers. Limitation period now runs from the time when the client found out, or should have found out, about lawyer's malpractice; 3rd parties can claim against lawyers (contrary to the privity rule!), as can successors in interest to the client.

  • Changes in insurance due to increased malpractice litigation: some areas of practice are excluded from routine coverage, as well as errors and omissions in non-legal role. Some insurance co.'s deduct the amount spent on (subrogated) defence litigation from the coverage amount.

  • Earlier, senior partners would often blame junior associates for malpractice, then fire them and escape sanctions. The new ^ Model Rules now impose responsibility on lawyers who supervise or has knowledge of subordinate lawyer's misconduct. The subordinate lawyer will not be responsible if he identifies an ethical issue, brings it to attention of the supervising lawyer and acts under the latter's direction.

    • Some states rejected this fearing that senior partners would be sued in vicarious liability

    • Clever π clients will use the Model Rules to bypass LLP limitations

  • LLP version of a firm prevents vicarious claims ("a partner in a registered LLP is not liable, either directly or indirectly, by way of indemnification, contribution, assessment or otherwise, for debts, obligations and liabilities of or chargeable to the partnership arising from negligence, wrongful acts or misconduct, whether characterized as tort, K or otherwise, committed ….by another partner or an employee, agent or representative of the partnership"); but many statutes say that supervising partners are still liable for negligence of supervised lawyer

  • Some law firms distribute assets from partner to partner every month. This may not save them, as courts may simply uphold a regular distribution of assets.

  • It becomes difficult when an LLP firm has branches in different jurisdictions, some of which do not recognize LLP. Π's will certainly choose to sue in non-LLP jurisdictions, and "it is likely that state & federal courts will be asked to override legislative jgmt in favour of the fiduciary duty that lawyers owe clients"
^ sources of ethical rules & discipline (M. Bolocan)

  • In each U.S.A. state, licensing authority is the judicial branch of the state's government.

  • In each state there are institutions that assist lawyers with questions on ethics in particular situations – opinions carry no legal authority, but are regarded as valuable sources. E.g. "Restatement of the Law Governing Lawyers" (by American Law Institute) is likely to influence courts and disciplinary authorities in interpretation of rules of lawyer conduct.

  • State supreme courts discipline lawyers of their jurisdiction – they often delegate authority to disciplinary agencies.

^ v. Gray (1990, S.C.C.)


π is a client who hired the services of firm A. Dangerfield, who worked in firm A during her articles and as junior counsel, was actively engaged in π's case. Then Dangerfield transferred to firm B, the Δ, who represented π's opponent. Dangerfield was not involved in B's litigation. The π wants a declaration that disqualifies firm B from representing his opponent.


firm disqualified. Std for disqualification: see below


  • If mergers and horizontal movement of lawyers were considered not to cause conflicts of interest (to facilitate such actions), the integrity of the profession would suffer an unacceptably serious blow

  • CBA code states that a lawyer cannot represent both sides in a conflict. This is a statement of public policy that must be accepted.

  • In the U.S.A. (cf. England), a mere possibility (cf. probability) of conflict of interest suffices for disqualification (but there must be "substantial relationship" between the matter out of which the confidential info arises and present matter for which disqualification is sought). However, it can be rebutted through "Chinese walls" or "cones of silence."

  • For Canada, "substantial relationship" test is too rigid. Once it is shown that there existed a relationship that is sufficiently related to matter for which disqualification is sought, conflict of interest must be inferred, unless the lawyer satisfies the court that no information has been passed from previous relationship – all that, without disclosing the actual confidential information.

  • A lawyer who actually has confidential information him or herself is automatically disqualified. No assurances or undertakings will suffice.

  • If a lawyer, whose disqualification is sought, is a partner of the lawyer who has confidential information, it is unrealistic in modern times to conclude immediately the passage of information – it's an "overkill." However, until governing bodies approve measures of preventing spread of information (such as Chinese walls) this conclusion must be drawn, unless there is strong and clear evidence to the contrary.

  • Case at bar: Dangerfield actively worked on the case, so she has confidential info. There is no persuasive evidence that this information did not pass to her new partners at the Δ firm.


  • Agrees that π wins, but disagrees that lawyers can disprove passing of information from "tainted" members of the firm to the others: opportunities to do so are innumerable, and no one will ever know about it – the presumption must be irrebuttable.

  • Public confidence in legal profession is much more important than mergers, horizontal movement, etc.

  • Anyway, protecting mergers and movers benefits mostly large firms, not the majority of CAD firms
^ cautious with ethical rules (A. Margolis)

  • Clifford Chance takes no risks. It has 2 offices with a total of 45 lawyers working just on ethical rules. Whenever there is disparity, it abides by the stricter of the rules.

  • In Switzerland, acting against former clients is unthinkable, and in fact illegal.

  • In the U.S.A. some clients draw up detailed agreements about when they become "former clients" (i.e. when their former firms can represent their opponents). There a lawyer can only act against former client if there is no "substantial connection" between this matter and the past matter.

  • Barristers (in England) work together but not in a partnership. Rules re: conflict of interest do not apply to them. There are discussions about cases, though, so conflicts of interest are possible. But barristers usually inform their clients and use Chinese wall.

^ Society of Alberta v. Black et al. (1989, S.C.C.)


a law firm in Alberta consisted of partners belonging to the Alberta bar, some of whom resided in Ontario. There were 2 law firms in the two provinces with the same partners. Alberta law society enacted rules that prohibited partnership with lawyers not ordinarily residing in Alberta (rule 154) and partnership in more than one firm.


6.2.b Charter violated. (freedom of movement & gaining of livelihood)


  • The rules make it impossible to practice law in Alberta without living there. Interprovincial firms are rendered unfeasible. This is completely disproportionate to any objectives sought

  • There is no evidence, anyway, that local expertise will be diminished – that non-local lawyers have less expertise. The Alberta Law Society's rules on insurance for non-residents prevent any problems related to malpractice. Also, "the Law Society can define appropriate ethical requirements for its members and discipline lawyers wherever they reside."
^ Mobility (P. Glenn)

  • Through Andrews v. Law Society of B.C. the requirement of citizenship was eliminated. Now certain provinces changed their provisions to only require "permanent residence," some eliminated or never adopted citizenship/permanent residency requirement, and Newfoundland requires only residency anywhere in Canada.

  • NAFTA requires elimination of citizenship requirement and requirement to maintain an office in the territory of a state

  • Permanent transfer into another province currently requires (i) good character (ii) passing bar exam (iii) any additional time of articling which has not been met in the home province. For non-Canadians, law school courses/entire program may be required.

  • Temporary mobility among provinces implementing the "National Mobility Agreement" – practice for 100 days (section 7 under Mobility Without Permit). Permanent mobility, according to the agreement, may be done without bar exams.

  • Foreign consultants may practice with the condition of residence in Canada. They are heavily regulated (3 years of practice in home jurisdiction required, limited to practicing law of home jurisdiction, compliance with disciplinary regime, insurance, etc.)

  • Inter-jurisdictional firms are allowed (case above), but entirely foreign firms are mostly disallowed (including forming partnership with foreign firms – except in Québec). Interjurisdictional firms are subject to the courts of jurisdictions within which they practice. Judicial surveillance includes: malpractice, conflicts of interests and costs awarded against lawyers implicated in litigation.

    • Interesting case (^ Re Manville Canada Inc. and Ladner Downs, 1993): a Vancouver firm represented π's in an asbestos litigation. The Van firm had international partnership with an Ontario partnership, which has done corporate work for Δ's in the litigation. BC court held that the structure of such a partnership left little opportunity/need to transmit information - a reasonable person would be satisfied that no info had passed btw the firms
^ legal education and profession (S. Zamora)

  • Number of law schools in Mexico has risen dramatically, and private schools are taking larger and larger percentage of the total

  • Licensing is automatic if there's a law diploma from an accredited institution. No bar exam, although big exam at the end of law school

  • Traditional Mexican curriculum is interdisciplinary (politics, economics, social studies)

  • There exist attorneys and notaries (who combine counselling and drafting with maintaining official records of important legal documents)

  • Citizenship requirement eliminated (for foreigners who wish to practice Mexican law in Mexico) after NAFTA. Lots of U.S.A. firms rushed there or established relations with Mexican firms.

  • No set of ethical regulations for governing the profession – rather general civil & criminal provisions enforced by court. Federal Civil Code prohibits conflict of interest, for example. Malpractice suits are extremely rare.

  • Overwhelming number of small partnerships

  • Lawyer fees not regulated

  • Mexican bar membership is not obligatory, and doesn't have disciplinary role. However, it does have a duty to inform of civil & criminal violations of lawyers to the appropriate authorities. It's also authorized to arbitrate disputes btw clients & lawyers, collaborate in development of law school curricula

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