Jurisdiction in Civil Law Countries

Author(s): Henry P. de Vries

Source: American Bar Association Journal, Vol. 55, No. 3 (MARCH 1969), pp. 246-250
Published by: American Bar Association
Stable URL: https://www.jstor.org/stable/25724717
Accessed: 03-10-2019 14:55 UTC

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms

American Bar Association is collaborating with JSTOR to digitize, preserve and extend access
to American Bar Association Journal

This content downloaded from 49.150.1.21 on Thu, 03 Oct 2019 14:55:10 UTC
All use subject to https://about.jstor.org/terms
Jurisdiction in Civil Law Countries
by Henry P. de Vries
What are the bases of jurisdiction
in civil law countries? As the
American lawyer becomes more
involved in foreign litigation and
arbitration on behalf of his American
client, he needs to know more of
the procedural aspects of foreign
law, particularly civil law. The
day is past when the American lawyer
can disclaim responsibility or advise the wishful thought that decisions ren New York by a lawyer not admitted to
his client on the basis of American
concepts of jurisdiction.
246 American Bar Association Journal
This content downloaded from 49.150.1.21 on Thu, 03 Oct 2019 14:55:10 UTC
rpO AN AMERICAN lawyer the pro countries closer to decision-making
cedural aspects of foreign law have headquarters.
seemed remote and unrelated to his This tremendous growth in eco
nomic and individual interpenetration
practice. Questions that have arisen be
cause of litigation or arbitration has changed profoundly the responsi
abroad have usually been disposed of bilities of the Bar in the international
by referral to local counsel. All too sector of law. In the very case that de
often the client has been advised with cided that advising on foreign law in
dered abroad could safely be ignored if practice in New York was a violation
there were no assets in the particular of the New York Penal Code, the New
country concerned or the proceedings York Court of Appeals pointed out the
did not conform to our notions of per concomitant responsibility thus placed
sonal service. on the Bar: "When counsel who are
Before World War II the political admitted to the Bar of this State are
isolation of the United States was retained in a matter involving foreign
matched by the legal isolation of our law, they are responsible to the client
profession. Foreign law in general was for the proper conduct of the matter
the province of a few experts who if and may not claim that they are not re
residing in the United States had gen quired to know the law of the foreign
erally lost contact with the procedural State."1
law of their countries. Foreign litiga In the area of jurisdiction of foreign
tion or arbitration involving American courts and arbitral tribunals and rec
interests was rare and occurred chiefly ognitions or enforcement of foreign
in settlement of decedents' estates or judgments and arbitral awards, the
occasional commercial disputes. day is past when the American lawyer
In the past twenty years a profound can disclaim responsibility or safely
advise solely on the basis of American
reorientation has projected the United
States and its citizens into the world
concepts of jurisdiction. International
?politically, economically and indi business enterprises today have assets
vidually. Hundreds of thousands of almost everywhere in the world. It
Americans, civilians and military, are would be a reckless lawyer indeed
scattered throughout the world, many who would today advise a client to
permanently residing abroad. The ignore the summons of a foreign court
movement of goods and funds into and or categorically limit enforcement of
from the United States has created an his client's rights to actions in our
enormous and complex pattern of alien courts.
claims against United States citizens
matched by claims against aliens. The Concepts of Jurisdiction
transfer of technology and manage in Private Litigation
ment skills has shown the need for le In this article concepts of jurisdic
gal protection of intangible property tion of courts will be discussed in the
in foreign courts. American direct in context of private litigation. Penal ac
vestment abroad exceeds 100 billion tions, enforcement of arbitral awards,
dollars and foreign investment in the
United States has reached impressive
proportions. Speed of communications 1. In re Roel, 3 N. Y. 2d 224, 230 (1957),
and transport has brought all foreign appeal dismissed, 355 U. S. 605 (1958).
All use subject to https://about.jstor.org/terms
 Jurisdiction in Civil Law Countries

suits against foreign governments in summons on the defendant within the nels or pursuant to treaty arrange
their own courts or in local courts are court's territorial limits replaced the ments.9 In civil and commercial mat
concededly of increasing importance. capias ad respondendum.6 Today serv ters, failure to raise the issue of lack of
As limitations on the exercise of juris ice outside the court's territory is sub jurisdiction affirmatively at the outset
diction of courts, the problems of stituted for the traditional personal before any other pleading may consti
domestic and foreign sovereign immu service in enforcement of specific tute waiver or implied submission.10
nity are relevant to the central topic claims arising under recent single-act, As a general rule, lack of jurisdiction
discussed here. This article will, how long-arm, and domicile statutes. An cannot be invoked after final judg
ever, be restricted to jurisdiction of English judge can proceed to adjudi ment, even if the judgment is by de
courts in the international sense in liti cate on the merits against a defaulting fault, and the defendant has not ap
gation of a civil or commercial nature. defendant on a contractual claim solely peared.11 French law has recently been
Within the term jurisdiction in the on the ground that the contract is gov changed to establish the procedure of
international sense, it is useful to in erned by English law expressly or im the contredit. As in some other leading
clude the concepts of direct and indi pliedly.7 But the traditional element re civil law systems, the contention of
rect jurisdiction as ultimate determi mains as an important residual atti lack of jurisdiction can be invoked
nants of the effectiveness of any court tude. Transient presence in the case of only if the party establishes which
decision. Thus the bases of direct juris individuals and "doing business" as domestic or foreign court or arbitral
diction are the conditions for exercise corporate "presence" remain sufficient tribunal does have jurisdiction.12
of the power to adjudicate controver and even necessary to subject a defend As a result of the emphasis in our
sies vested by a country in its own ant to general direct jurisdiction to ad law on transient presence ?s a primary
courts. The bases of indirect jurisdic judge claims in personal actions. base of jurisdiction, we rely on two
tion are those recognized by courts of The emphasis in common law sys compensatory devices. Attachment or
tems is on the mode of service. The garnishment of the nonresident alien's
other countries as proper. "Civil juris
diction, considered as an incident of issue of jurisdiction is raised in the assets permits a court to adjudicate on
the theory of international jurisdiction, question: Has the defendant been the merits even though the defendant
cannot be adequately discussed except properly served? If so, the court has cannot be found within the court's ter
in conjunction with the problem of the jurisdiction. If not, and the defendant ritory. Forum non conveniens permits
recognition of foreign judgments, does not submit by voluntary appear the court to decline to proceed, al
which, very largely, is identical with ance, the judgment entered is not bind though service on the defendant is oth
the problem of the jurisdiction of for ing. Failure to plead lack of jurisdic erwise sufficient.
eign courts. Both topics are, and tion through nonappearance does not In civil law countries a judge who
bar later direct or collateral attack on fails to render a decision on forum non
should be recognized as, branches of
the same tree."2 the judgment.8 conveniens grounds may be exposing
In civil law countries, by contrast, himself to charges of denial of justice,
Thus, in common law systems the
the first problem is to ascertain which a penal offense.13 Attachment and gar
transient presence of the defendant
court has jurisdiction to decide a cer nishment are known in France and the
personally served is the most effective
tain type of controversy. Service on the majority of civil law countries not as
mode of subjecting to other jurisdic
defendant is a procedural step commu a base of jurisdiction to hear the case
tion in personam, while in civil law
nicated to nonresidents through the on the merits, but as an ancillary rem
systems the court of the domicile of the
mail, letters rogatory, consular chan edy to prevent withdrawal of assets or
defendant is the "natural forum". In
the absence of treaty, it is highly
doubtful whether the common law 2. Mann, The Doctrine of Jurisdiction in 8. Pennoyer v. Neff, 95 U. S. 714 (1878).
International Law, 111 Rec. Cours Ac. Dr. 9. Kaplan, von Mehren & Schaefer, Phases
primary base of jurisdiction can con Int. 9.75 (Volume 1) (1964). of German Civil Procedure I, 71 Harv. L.
3. See Nadelmann, Non-Recognition of Rev. 1193, 1203 (1958).
stitute an accepted base of indirect American Money-Judgments Abroad and 10. E.g., the French Civil Code provides
jurisdiction in civil law countries.3 What To Do About It, 42 Iowa L. Rev. 236, that the issue of territorial jurisdiction can
261 (1957) ; Lenhoff, International Law and not be raised by the court on its own motion,
In approaching problems of in per Rules on International Jurisdiction, 50 Cor except when the parties are not free to com
sonam jurisdiction of courts in civil nell L. Q. 5, 8 (1964). promise the claim (Article 171). The issue is
4. "The foundation of jurisdiction is physi deemed waived if not raised prior to all
law countries, it is essential to re-exam cal power." Holmes, J., in McDonald v. other defenses or grounds for dismissal (Ar
ine the assumptions of our own law. At Mabee, 243 U. S. 90, 91 (1917). ticle 168).
5. Miller, Civil Procedure of the Trial 11. Deveze, De la Regle: Voies de
common law the jurisdiction of courts Court in Historical Perspective 74 N?LLITE N'ONT LlEU CONTRE les J?GE
to render a judgment in personam is (1952) points out that arrest of the defend ments (1938).
ant was essential to jurisdiction because of 12. As amended in 1960, Article 169 of
historically grounded on their de facto the "primitive conception that no judgment the Code of Civil Procedure provides for re
power over the defendant's person.4 could be rendered against a non-appearing jection of a plea of lack of jurisdiction by
defendant". reason of place or of subject matter unless
The English courts originally acquired 6. Stone, C.J., in International Shoe Com the party so pleading indicates which court
jurisdiction over the defendant by ar pany v. Washington, 326 U. S. 310, 314 is competent to decide the case.
(1945). 13. French Penal Code, Article 185; Civil
resting him.5 In more recent times the 7. See 0. llr.l(c) of Rules of the Su Code, Article 4. Deni de Justice, 2 Dalloz
symbolic act of personal service of preme Court, Nouv. Rep. de Droit 27 (1963).

March, 1969 Volume 55 247

This content downloaded from 49.150.1.21 on Thu, 03 Oct 2019 14:55:10 UTC
All use subject to https://about.jstor.org/terms
Jurisdiction in Civil Law Countries
to aid in execution of a judgment
based on jurisdiction otherwise ob
tained.14
The most accepted base of direct
and indirect jurisdiction is that of situs
of property in actions in rem, matters
involving determination of an interest
in such property. The distinction be
tween in personam and quasi-in-rem
proceedings is little known in civil law
countries. It is not known to modern
English law.15 Jurisdiction to render
judgment on the entire claim, not lim
ited to the value of attached or gar
nished local assets, exists in Germany,
Austria and Japan, in some cantons of
Switzerland, in Denmark and Swe
den.16 Such judgments may be enforce
able in other countries.17
Domicile and Nationality
Are Important Factors
In civil law countries the counter
part of the common law presence of
the defendant as the primary base of
personal jurisdiction in civil and com
mercial matters is his domicile or resi
dence.18 Territorial jurisdiction of
courts is viewed as essentially a ques
tion of contact or relationship between
the parties, their acts or their property
and the forum. Thus, the "natural
forum" in personal actions usually is
the domicile or residence of the de
fendant. This base of jurisdiction is
universally recognized in the enforce
ment of foreign judgments.19
In marked contrast, and almost
alone, French law considers the courts
of France the "natural" forum if either
party is a French national.20 A French
national domiciled or resident abroad
can sue anyone in French courts, even
an alien nonresident, on a cause of ac
tion that has arisen anywhere in the
world, except one related to real prop
erty outside of France.21 A French na
tional, regardless of his domicile or
residence, cannot be sued without his
consent outside France, except in con
nection with a claim relating to im
movables situated outside of France.
Any judgment so obtained will be de
nied effect in France.22
This base of jurisdiction, variously
characterized as "extraordinary", "ex
orbitant" or "improper" by non
248 American Bar Association Journal
This content downloaded from 49.150.1.21 on Thu, 03 Oct 2019 14:55:10 UTC
French authors,23 is viewed by the
French themselves as a logical attrib
ute or privilege of French citizenship.
So strong has been the view that
French courts paid for by French tax
payers are primarily a means of set
tling disputes between members of the
French nation, that until the beginning
of this century the French courts
would not entertain actions between al
iens, even though both parties were
domiciled in or resided in France.24 It
should be noted that if the European
Common Market Draft Convention on
Jurisdiction and Foreign Judgments
becomes effective, a plaintiff domiciled
in any member country will be able,
under Article 4 of the convention, to
invoke against a defendant domiciled
outside of the community any base of
jurisdiction of the country of plaintiff's
domicile, regardless of plaintiff's na
tionality. Any person or firm domiciled
in the Netherlands, France or Luxem
bourg, for example, will be able to sue
persons outside the community, includ
ing Americans, with the plaintiff's
domicile as sufficient base for jurisdic
tion. Under Article 26 these judgments
would be enforceable throughout the
Common Market.
Bases of Specific
Jurisdiction
Counterparts of our single-act and
long-arm statutes have long existed in
foreign procedural codes. The bases of
specific jurisdiction to adjudicate
claims arising from local branch oper
14. French Code of Civil Procedure, Book
V. Amos & Walton, Introduction to
French Law 239 (2d ed. Lawson 1963).
15. Nadelmann, Jurisdictionally Im
proper Fora in XXth Century Compara
tive and Conflicts Law 325 (Yntema ed.
1961).
16. Mann, supra note 2, at 81.
17. Nadelmann, Jurisdictionally Improper
Fora in Treaties on Recognition of Judg
ments: The Common Market Draft, 67
Colum. L. Rev. 995, 1012-1015 (1967).
18. Mann, supra note 2, at 76.
19. In France and Germany suit may be
brought at the defendant's residence only in
the absence of any domicile in those coun
tries or elsewhere. The other Common Mar
ket countries permit suit to be brought at
the defendant's residence within the country
even if he is domiciled elsewhere. Weser,
Bases of Judicial Jurisdiction in the Common
Market Countries, 10 Am. J. Comp. L. 323,
329 (1961).
20. De Vries & Lowenfeld, Jurisdiction in
All use subject to https://about.jstor.org/terms
Henry P. de Wies is a professor of
law, Director of the Inter-American
Law Center and Associate Director of
the Parker School of Foreign and
Comparative Law at Columbia Uni
versity. He is a graduate of Colum
bia (LL.B. 1937) and has studied at
the University of Paris and the Uni
versity of Berlin.
ations, from transactions created or
performable or wrongs committed
within the territory of European Com
mon Market countries are generally ac
cepted.25 Characterization plays an im
portant part. A tort with foreign ele
ments may be deemed "committed" in
New York or Illinois within the mean
ing of the long-arm statutes of those
states, as at present interpreted.26 On
the same facts it may be characterized
by a foreign court as "committed" in
the foreign country. The New York or
Personal Actions?A Comparison of Civil
Law Views, 44 Iowa L. Rev. 306. 316
(1958).
21. 6 Niboyet, Traite de Droit Interna
tional Prive Francais 313 (2d ed. 1949).
French Civil Code, Articles 14 and 15.
22. Batiffol, Traite Elementaire de
Droit International Prive 814 (4th ed.
1967).
23. See Kulzer, Enforceability of Foreign
Judgments, 16 Buffalo L. Rev. 84, 111
(1966) ; Nadelmatin, supra notes 15 and 17.
Described by Niboyet, supra note 21, as a
"privilege politique".
24. See Lenhoff, The Parties Choice of a
Forum: "Prorogation Agreements', 15 Rut
gers L. Rev. 414, 441 (?61).
25. Kulzer, supra note 23, at 109-116;
Graupner, Some Recent Aspects of the Rec
ognition and Enforcement of Foreign Judg
ments in Western Europe, 12 Int'l and
Comp. L. Q. 367 (1963).
26. N.Y. Civil Prac. Law and Rules ?
302; III. Rev. Stat. ch. 110, ? 17.
 Jurisdiction in Civil Law Countries
Illinois characterizations would not be forceability ot arbitration clauses will courts of jurisdiction unless satisfied
binding on a French court, which in not be discussed herein. as to the actual knowledge of the party
applying its own rules of indirect juris The contractual choice of forum is purporting to agree to a foreign court.
diction is free to find that the "act called prorogation in civil law coun Clauses in standardized contracts,
causing the damage" occurred in tries.33 From the viewpoint of a partic "contracts of adhesion", such as bills
France.27 In Italy, a tort is considered ular court, a choice of forum clause of lading, passenger tickets and corpo
to have been committed or taken place may operate to confer jurisdiction by rate bonds, will be denied effect if they
in Italy if any element, including loss consent or to oust jurisdiction other deprive the French national "of the
of profit, occurred in Italy.28 wise obtained. The distinction is im right to the jurisdiction of his natural
Aside from differing results in char portant.34 In Latin America, a clause judge. Such a clause can be made oper
acterization of the place of contract or purporting to oust a Latin American ative only by his express acceptance
wrong, judgments based on long-arm court of jurisdiction will be denied ef because nobody is presumed to have
statutes remain subject to the general fect, particularly where a resident is waived this right."39
rules abroad on enforcement of foreign suing. These countries follow Spanish Assuming the clause is clearly in
judgments. Thus, in the Netherlands en and Portuguese law, which, in contrast tended to exclude any court other than
forcement is denied, and in Belgium to French law, stress the view that the chosen one, English and European
the merits will be reviewed in the ab rules on jurisdiction of courts are a courts will enforce it.40 However, the
sence of treaty.29 In addition to iden "delegation of the national sover parties generally have no freedom of
tity of bases of direct and indirect ju eignty", not a matter for agreement by choice of forum as to certain matters:
risdiction, Germany requires substan the parties.35 the courts of the situs of real property
tial reciprocity.30 A network of bilat In French law the rules of civil and have exclusive jurisdiction in matters
eral treaties on recognition and en commercial procedure, including juris relating thereto; of the place of em
forcement of judgments cuts across the diction in the international sense, are ployment in matters relating to em
regarded more as personal rights or
problem of diverse bases of direct and ployment contracts; of the domicile of
indirect jurisdiction. The European privileges of the parties subject to ex a company in matters of invalidity or
Common Market Draft Convention, if press or tacit consent.36 Portugal gives dissolution; of the place where regis
adopted, would apply uniform rules of effect to an ouster clause only if all ters are kept in matters of validity of
jurisdiction to most cases of a civil or parties are aliens, the contract is to be such entries; of the registration of pat
commercial nature before courts of performed outside Portugal and does ents, trademarks, designs and models
member states.31 not involve local property.37 A French in matters of their validity. Article 17
national can effectively waive his privi of the Common Market Draft Conven
lege to sue or be sued in French courts tion expressly provides for general en
by a properly drafted prorogation forceability of prorogation clauses des
Choice of Forum clause. Such a clause should not only ignating courts of member states.
of "Primordial Interest"
refer to the exclusive jurisdiction of a
One noticeable result of expanding foreign court but also expressly re
and overlapping concepts of jurisdic nounce the privileges granted by Arti New Jurisdictional Trends
tion is the increase in instances of con cles 14 and 15 of the French Civil
Are Emerging
current jurisdiction of foreign and Code.38 The new trends in jurisdiction of
domestic courts. The same cause of ac
The French courts may not uphold a courts in personal actions emerging in
tion, defense or counterclaim may be prorogation clause ousting French civil law countries are the result of at
subject to adjudication in courts of dif
ferent countries. The proper choice of
forum is becoming increasingly impor
tant as to effectiveness both of decisive 27. Niboyet, supra note 21, Volume 6 at ? 35. Supreme Court of Spain, May 30, 1961,
1829 and Volume 5 at ? 1427, 1428. Article 1966 J. Dr. Int. 679; Schwind, Derogation
action on the merits and recognition 59 of the French Civil Code provides that Clauses in Latin American Law, 13 Am. J.
redress for a tort may be sought at the place Comp. L. 167 (1964).
and enforcement of the decision in where "/e fait dommageable s'est produit". 36. "The idea of a jurisdiction (in the in
other countries. "The preliminary 28. M. Giuliano, La Giuridizione Civile ternational sense) that is not subject to the
Italiana e lo Straniero 119 (1961). will of the parties, is alien to the constant
choice of the internationally competent 29. Smit, International Res Iudicata in course taken by French courts." Frances
jurisdiction may be of primordial in the Netherlands: A Comparative Analysis, 16 cakis, Foreign Jurisdiction and Foreign
Buffalo L. Rev. 165 (1966); Kulzer, supra Judgment, 1953 Rev. Crit. Dr. Int. Pr. 1,
terest for the proper conduct and suc note 23, at 110. 30.
cess of a proceeding in the EEC coun 30. 2 Foreign Office of Great Britain, 37. Taborda Ferreira, The Concept of Pri
tries."32 Manual of German Law 12-14 (1952). vate International Law According to the Por
31. Nadelmann, supra note 17. tuguese Doctrine and Practice, 1956 Rec.
In contractual relationships the ques 32. Weser, Litigation on the Common des Cours 695.
Market Level, 13 Am. J. Comp. L. 44, 49 38. Cie. Luxembourgeoise d9Assur. Le
tion arises of the extent to which parties (1964). Foyer v. Dulac, Cass. Civ., November 13,
to contracts can choose their own fo 33. Lenhoff, supra note 24, at 415. 1957, 1958 Rev. Crit. Dr. Int. Pr. 735.
34. Reese, A Proposed Uniform Choice of 39. Cie. Gen. Trans, v. Peltier jr., Cass.
rum. The parties may choose a court Forum Act, 5 Colum. J. Trans. L. 193 Req., March 2, 1909, S. 1909.1.384.
or arbitration. The problems of en (1966). 40. See Lenhoff, supra note 24, at 439-480.

March, 1969 Volume 55 249

This content downloaded from 49.150.1.21 on Thu, 03 Oct 2019 14:55:10 UTC
All use subject to https://about.jstor.org/terms
Jurisdiction in Civil Law Countries

tempts at regional integration. The Be ty-made choice of courts and judgment world today he is accustomed to ana
nelux Convention, the draft European enforcement. lyze legal problems in the context of
Common Market Convention, the Bus The American lawyer can easily in the fourth dimension of space and time.
tamante Code and Treaties of Monte crease his awareness of these activities The future undoubtedly will present in
video in Latin America all seek to har abroad. He has the built-in training creasing opportunity for more effective
monize conflicting bases of jurisdic instilled by practice of law in a coun service to clients through use of Ameri
tion. Bilateral arrangements in West try where continuous attention to con can legal know-how in selective sub
ern Europe and Scandinavian coun flict of laws is essential. Perhaps more mission to or avoidance of foreign
tries provide further evidence of trea than any other law professional in the court jurisdiction.

Summaries of Informal Opinions on Professional Ethics

1019. The attorney for the plaintiff in
a personal injury case handed a letter
to the defendant's attorneys in open
court after the close of the evidence.
The letter stated that a judgment in ex
cess of $10,000 was likely and that the
plaintiff would settle for that amount
"at this time"; that defendant's attor
neys were given a copy of the letter to
hand to the defendant and they were
expected to urge the defendant to ob
tain separate legal advice as to the sig
nificance of the offer; that if the policy
limits were less than the verdict, the
defendant would be liable for the ex
cess and might be forced into bank
ruptcy; and that if the offer to settle
were refused, the defendant's insurance
carrier should be prepared to pay the
entire judgment. The letter was then
read into the record in the presence of
the defendant and his attorneys, al
though not in the presence of the jury.
The Ethics Committee did not consider
delivery of this letter to defendant's at
torneys a violation of Canon 9 and, as
suming that the reading of the letter
was permitted under local law, found it
not unethical to read the letter into the
record in the presence of the defend
ant.
1022. If it does not appear that he
The full text of any informal
opinion may be obtained by writ
ing to the American Bar Associ
ation, Professional Service Ac
tivities-Ethics, 1155 East 60th
Street, Chicago, Illinois 60637.
uses the relationship as a feeder for
law business, a practicing lawyer may
be employed on an annual retainer by
a building and loan association located
in another community to take and
process loan applications, make ap
praisals, order and examine abstracts,
supervise loan closings, write collection
letters to delinquent borrowers and
foreclose mortgages (for which he is
paid a further fee), provided that there
is a complete and total separation of
the attorney's office and physical facili
ties from those of the building and
loan association, including separate
and distinct offices, telephones and tele
phone listings and addresses.
1023. It is unethical for a lawyer to
use bold-face type in listing his name
in the alphabetical section of a tele
phone directory. A minority of the
Committee feels that bold-face type
should be permitted in the alphabetical
section. (Note: Other opinions indicate
that it is unethical to use bold-face
type in the yellow pages of a telephone
directory or in city directories.)
1024. An announcement stating that a
lawyer previously employed by the
state is opening a law office and that he
is available to serve members of the
local bar in a particular area of the
law is proper. It should be in a form
that does not constitute a statement or
representation of special experience or
expertness and should not contain
statements to the effect that the attor
ney intends to specialize in certain
types of law or before certain tribu
nals. The announcement may contain a
brief and dignified reference to the po
sition occupied with the government
immediately prior to returning to pri
vate practice.
1028. A judge may present editorials
on various subjects by radio broadcast
prior to hearing the court calendar,
provided they are appropriate, show
good taste, are dignified and are not
made when court is in session or when
parties, attorneys or court personnel
are required to be present. The broad
casting of actual court proceedings,
where pleas of guilty are taken and
sentences are imposed, does not meet
the requirements of the Canons of Ju
dicial Ethics.
1032. A lawyer who is qualified to
practice before the Internal Revenue
Service and the Tax Court solely by
reason of his bar membership, who is
not a certified public accountant but is
a full-time salaried employee of a
C.P.A. firm, cannot ethically represent
clients of the C.P.A. firm before the In
ternal Revenue Service and the Tax
Court.
1034. A letter written by the plaintiff's
attorney in a personal injury matter to
the defendant, which advises the de
fendant as to the law, offends Canon 9.
If the defendant is represented by an
attorney, the letter would further of
fend Canon 9,

250 American Bar Association Journal

This content downloaded from 49.150.1.21 on Thu, 03 Oct 2019 14:55:10 UTC
All use subject to https://about.jstor.org/terms