Double Deontology and Inequality of Arms: Navigating Conflicting Ethics Rules in Cross-Border Legal Practice

Francesca Giannoni-Crystal

May 8, 2026

ABSTRACT

Global legal practice is increasingly cross-border, but professional responsibility regulation remains primarily territorial and national. This article examines two structural problems — double deontology and inequality of arms — that arise when a lawyer is simultaneously subject to multiple, incompatible ethics regimes. It analyzes the principal areas of substantive divergence across jurisdictions, surveys the existing choice-of-law frameworks (including Model Rule 8.5 and the CCBE approach), identifies their limitations in the context of international commercial arbitration, and proposes a contractarian solution grounded in party autonomy. Practical guidance for cross-border practitioners concludes the analysis.

I. Introduction

The central challenge of cross-border legal ethics is not complexity alone — it is conflict. A lawyer engaged in international practice may simultaneously face overlapping disciplinary authority, incompatible substantive obligations, and the prospect of sanctions in multiple jurisdictions. Compliance with one jurisdiction’s rules may constitute a violation of another’s, and no clear hierarchy exists to resolve the tension.

This problem is most visible in international commercial arbitration, where multiple legal systems operate within a single proceeding. Arbitration therefore serves throughout this article as the principal case study. But the analysis has broader application: remote practice, multinational litigation, cross-border transactions, and international investigations all present the same structural difficulties, and cross-border ethics problems are becoming ordinary rather than exceptional in sophisticated legal practice.

II. Two Structural Problems

A. Double Deontology

Double deontology denotes the condition in which a lawyer is simultaneously subject to two or more ethics regimes that impose inconsistent obligations. Unlike a conventional conflict of laws, in which one rule is identified as governing and the other is displaced, double deontology involves the simultaneous application of irreconcilable standards, with no clear mechanism for subordinating one to the other.

The consequences are concrete. A communication permissible under one jurisdiction may be sanctionable under another. Witness preparation may be required as a component of competent representation in one system and treated as improper — or even potentially criminal — in another. The lawyer may face disciplinary exposure regardless of which course of conduct is chosen. This is a structural trap, not an anomaly.

B. Inequality of Arms

Inequality of arms arises when opposing counsel in the same proceeding operate under materially different ethics regimes, producing structural asymmetry in what each lawyer may permissibly do. The paradigmatic example is ex parte communications: some jurisdictions prohibit them strictly, while others are permissive or silent. One lawyer may have access to conduct that the other cannot ethically replicate — not as a matter of tactical choice, but as a function of the professional rules that govern each.

This asymmetry has direct implications for the fairness and legitimacy of the proceeding. It is not remedied by requiring both lawyers to comply with the more restrictive rules of either jurisdiction, because the choice of which regime applies is itself contested and unresolved.

III. Principal Areas of Substantive Divergence

A. Witness Preparation

Witness preparation is the area of most acute divergence across legal systems. The same conduct — preparing a witness to testify clearly and accurately — may be expected in one jurisdiction, professionally improper in another, and potentially criminal in a third.

The result is that a U.S. lawyer and an Italian lawyer appearing as co-counsel in the same arbitration may operate under materially different constraints as to the same witness, with no governing rule to reconcile the difference.

B. Client Communications

U.S. professional rules impose broad duties of communication, including the obligation to transmit settlement offers to clients.¹ Other jurisdictions place greater emphasis on professional confidentiality among counsel, and certain negotiations may not be freely transmitted to one’s own client.

Under the French doctrine of sous la foi du Palais — communications made “under the faith of the Palace of Justice” — certain exchanges between opposing counsel may carry a professional confidentiality obligation that extends even to the lawyer’s own client.
See generally Bâtonnier de Paris, Règlement intérieur du barreau de Paris

Different systems thus produce different levels of client participation and decision-making authority. A client whose lawyer operates under a more restrictive disclosure norm may receive materially less information about the progress of a proceeding than a client whose lawyer is subject to the broader U.S. disclosure obligations — creating not only a professional responsibility problem but also a potential informed-consent problem.

C. Relations Among Counsel

Some jurisdictions impose substantive duties of collegiality and professional solidarity among lawyers that are largely absent from U.S. professional rules. In certain civil law traditions — Italy being a notable example — the relationship among lawyers is viewed partly through the lens of professional comradeship (colleganza), and conduct viewed as excessively aggressive or discourteous may itself become the basis for disciplinary proceedings.

Italian case law has addressed, for instance, whether proceeding with a hearing immediately after a brief delay by opposing counsel constitutes a breach of professional duty. The outcome has turned on the duration of the delay and the prejudice to the client — but the existence of the inquiry at all illustrates how differently adversarial conduct is conceptualized across legal traditions.² This divergence can materially affect litigation behavior and strategic decisions in cross-border proceedings, particularly where counsel from common law and civil law jurisdictions appear together.

IV. Existing Choice-of-Law Frameworks and Their Limitations

A. The Four Traditional Approaches

Four approaches have traditionally been used to identify the applicable ethics rules in cross-border matters: (1) home-state rules, applying the ethics rules of the lawyer’s licensing jurisdiction on the ground that the lawyer’s continuing professional obligations run to that jurisdiction; (2) host-state rules, applying the rules of the jurisdiction where conduct occurs, justified on territorial and sovereignty grounds; (3) conflict-of-law analysis, using structured choice-of-law methodology to identify the governing framework; and (4) harmonized or supranational approaches, of which the CCBE framework for European lawyers is the principal example.

In many cases, none of these approaches fully resolves the problem. The CCBE framework, despite its importance, functions less as a unified substantive ethics code than as a harmonized private international law instrument — it identifies which jurisdiction’s rules apply rather than supplanting those rules with a genuinely autonomous transnational regime.

B. Model Rule 8.5 and Its Limitations in International Practice

Model Rule 8.5 addresses multi-jurisdictional ethics problems through a structured choice-of-law framework:

Rule 8.5 provides useful structure, but it was designed for the interstate domestic context, and its central concepts do not translate comfortably to international arbitration. The “tribunal sits” rule in 8.5(b)(1) assumes that the geographic location of the tribunal can be identified. In international commercial arbitration, that assumption is frequently problematic.

ICA proceedings are routinely delocalized: the legal seat may differ from the hearing location, the procedural administration, the lawyers’ jurisdictions, and the arbitrators’ locations. An arbitration with a legal seat in Paris, hearings in New York, arbitrators from Switzerland and Singapore, parties from Brazil and Japan, and counsel admitted in the U.S., England, and Italy raises an unanswerable question under Rule 8.5(b)(1): where does this tribunal “sit”? Even assuming the arbitral panel qualifies as a “tribunal” within the meaning of the rule, the geographic reference point is indeterminate.

V. The Case Study: International Commercial Arbitration

International commercial arbitration concentrates all of the problems identified above. It involves multiple jurisdictions with no unified ethics code, inconsistent enforcement, lawyers from different legal cultures, and no structural mechanism for resolving ethics conflicts. Historically, arbitration relied on informal professional norms and what some scholars have characterized as practical desuetude — a tacit understanding that bar authorities would not actively sanction conduct in international proceedings.

That approach is increasingly inadequate. Even if formal sanctions remain infrequent, the risk persists, and uncertainty itself shapes conduct and strategic choices in ways that undermine the integrity of the process. More fundamentally, arbitration is a legitimacy-dependent institution: parties submit to it voluntarily because they have confidence in the process. If the ethics framework governing counsel is perceived as unregulated, asymmetric, or susceptible to exploitation — through guerrilla tactics such as frivolous arbitrator challenges, abusive document practices, or threats against witnesses — that confidence is eroded. This is properly characterized as a legitimacy problem, not merely an inconvenience.

VI. A Contractarian Solution

The most principled available solution is a shift from territorial ethics to consensual ethics — an approach that is structurally coherent with the foundational logic of arbitration itself. Because arbitration rests on party autonomy, there is no principled objection to extending that autonomy to the selection of the ethics framework governing counsel conduct within the proceeding.

Under this approach, parties would agree — ideally in the arbitration clause or in the terms of reference — on the ethics rules applicable to all counsel. Once selected, that framework would govern exclusively within the proceeding; inconsistent domestic rules would not continue to interfere simultaneously. For proceedings in which no prior agreement has been made, the following hierarchy is proposed:

1. Party agreement on ethics rules
   Incorporated into the arbitration clause or terms of reference; the preferred approach
2. Arbitral institutional rules
   Many leading institutions have developed or are developing applicable ethics guidance
3. Governing law of the contract
   Provides a pre-agreed reference point, though not designed for this purpose
4. Tribunal conflict-of-law analysis
   The tribunal applies structured reasoning to select the governing ethics framework
5. Residual tribunal authority
   A backstop for conduct not otherwise addressed by the selected framework

This approach would reduce double deontology by eliminating the simultaneous application of incompatible regimes, mitigate inequality of arms by subjecting all counsel to the same framework, and improve legitimacy and predictability for all participants. It would not eliminate differences between legal systems — nor should it. The objective is not harmonization of substantive professional rules, but the creation of predictable mechanisms for managing their divergence within a specific proceeding.

VII. Practical Guidance for Cross-Border Practitioners

Pending systemic reform, practitioners operating across jurisdictions should take the following steps:

1. Identify ethics conflicts at the outset of representation. Do not assume that domestic professional rules will govern all aspects of cross-border conduct.
2. Consider ethics-selection clauses in engagement agreements. Model Rule 8.5 Comment [5] expressly contemplates written agreements designating a governing ethics framework where the chosen jurisdiction has a substantial relationship to the lawyer, client, or matter.
3. Document reasonable reliance on selected frameworks or tribunal directions. Contemporaneous documentation supports a good-faith defense in the event of a subsequent disciplinary inquiry.
4. Implement targeted firm training on cross-border ethics risks. Generic international practice training is insufficient; training should address the specific jurisdictions and practice areas relevant to each lawyer’s work.

VIII. Conclusion

Cross-border legal ethics raises a foundational question: which rules govern when multiple, incompatible rules apply simultaneously? Current frameworks — whether territorial, conflict-of-law-based, or harmonized — only partially answer that question. Without greater clarity, lawyers face irresolvable disciplinary exposure, clients face inconsistent representation, and proceedings face legitimacy concerns that informal professional culture cannot absorb.

The contractarian approach proposed here offers a principled path forward, grounded in the same party autonomy that underlies the arbitral process itself. Its adoption — whether through institutional rules, party agreement, or tribunal practice — would not require the elimination of national differences in professional regulation. It would require only the recognition that those differences must be managed predictably, and that predictability is itself a professional value worth protecting.

Notes

¹ See Model Rules of Prof’l Conduct r. 1.4(a)(2) (requiring a lawyer to “reasonably consult with the client about the means by which the client’s objectives are to be accomplished”); r. 1.4(a)(3) (requiring communication of information material to the representation).

² See Consiglio Nazionale Forense, decisions addressing the duty of colleganza and the obligation not to take tactical advantage of a colleague’s momentary absence or delay.