terça-feira, 28 de junho de 2011
Keep out - Brazilian lawyers don’t want pesky foreigners poaching their clients
Associação Paranaense de Direito e Economia
The Economist aborda a internacionalização da advocacia brasileira:
WITH convicted criminals allowed multiple appeals and labour regulations that are a standing invitation to sue one’s employers, you might have thought there would be plenty of work to go round for all the lawyers in Brazil. But behind the scenes some of the most powerful ones are agitating to make life harder for the 100 or so foreigners offering legal services in the country. Late last year the São Paulo chapter of the national bar association (OAB-SP) said that formal alliances between foreign-trained and local lawyers were against its rules. It confirmed that opinion in February. The federal bar association in Brasília is now considering the matter. If it agrees, all formal local-foreign legal alliances may have to be dissolved.
Cross-jurisdictional legal work is strictly regulated. Foreign-qualified lawyers cannot work in firms that employ local ones or offer any advice on Brazilian law, even if they base their advice on that of a qualified Brazilian lawyer. But the OAB-SP’s opinion went further. It proclaimed that alliances between foreign and Brazilian lawyers were unethical. “Foreign legal consultants”, as foreign-qualified lawyers must call themselves, are not lawyers at all, it decided. That means Brazilian lawyers who make alliances with them are breaking the ban on multi-disciplinary work. It was the sort of convoluted reasoning of which any lawyer would be proud.
The pace of foreign law firms opening in Brazil has picked up. Before 2007 only five had offices there. Since then around three have opened each year, and a handful have signed formal accords with locals. The first of these, in 2001, between Linklaters and a medium-sized local firm, Lefosse Advogados, was looked at closely by the OAB-SP in 2006 and given the all-clear. Recent arrivals say they have done nothing different, and stayed within the rules.
They suspect that their real crime is to threaten a cosy status quo, in which a half-dozen big law firms advise on the Brazilian end of most big deals. With Brazil booming, that means fat and easy profits for incumbents. Medium-sized locals which have hooked up with foreign firms might challenge the oligopoly. “It’s blatant protectionism,” fumes one foreigner. Francisco Müssnich, a prominent local, put it pithily in an interview with Latin Lawyer, a trade publication. Asked about relaxing the restrictions on foreign firms, he said: “Brazil has great opportunities for sure—but you can’t let the guy who wasn’t invited to the party come in and steal all the sweets.”
Foreign firms are also fuelling a red-hot jobs market for locals, at the expense of the old guard. The medium-sized firms associated with global giants are offering ambitious young lawyers higher pay and faster promotion. The regulators need to understand that a shake-up is in the interests of many locals, says one of those who decamped, adding: “In most of the big Brazilian firms the founding partners control everything. Young partners have no say in how they are run and a big chunk of what they generate goes to the senior partners.”
How lawyers share out their whopping fees is of little interest to anyone but themselves. Clients care more about whether they get the best advice, and how much that advice will cost them. The ban on multi-jurisdictional law firms means that foreign companies setting up shop in Brazil, or Brazilian ones buying or merging with foreign ones, must seek legal advice from separate Brazilian and foreign firms. Their underwriters need the same again.
Opinions differ as to whether this matters. Rob Ellison, managing partner of Shearman & Sterling’s São Paulo office, which has no formal accord with any Brazilian firm, says that the firm’s clients are best served by its staying independent and working with whichever local is the best match for the matter in hand. Others say that some clients, at least, want multi-jurisdictional legal advice that is as seamless as possible—perhaps even more seamless than two firms with a formal accord can offer. “We have offices in 23 countries, and every week global clients ask us to act for them on cross-border transactions involving Brazil,” says Anthony Oldfield of Clifford Chance’s Brazil office. “We have to explain that we can do all the work in the other jurisdictions but not in Brazil.”
In trying to make it harder for customers to get legal advice from formally allied firms, or even a global one-stop shop, Brazil is moving against a tide towards globalisation in legal practice. Singapore and South Korea both recently relaxed restrictions on multi-jurisdictional work. Only India is a hold-out, banning foreign lawyers on its soil from advising even on the law of their own countries.
There is a further twist to the tale. “The people behind this were battling on behalf of their clients to open up Brazil’s economy to the world in the 1990s,” says one disillusioned foreigner. “So it’s ironic that now they’re trying to protect their own turf.”