The Foreign Service Journal, November 2015

THE FOREIGN SERVICE JOURNAL | NOVEMBER 2015 21 against more than 10,000 euros in total expenses) the insurance company offered, but the information—con- firmed by an Internet search—that Italian law requires that an advance be offered, with a set deadline and in an amount “congruo” (adequate) to the situation, that disturbed me. Further online reading revealed other details concerning local standards and legal requirements, about which Mr. Z had been silent. That, combined with other aspects of his dealings with the insurance company, convinced me to terminate our relationship. The Consulate’s Predicament When I informed the consulate and asked that Mr. Z be removed from its lawyers list, I learned that, though sym- pathetic with my plight, the consulate could not comply with my request. Per 7 FAM 991, U.S. embassies and consulates are supposed to post lists of attorneys “who are believed to be quali- fied to perform legal services on behalf of U.S. citizens.” (A routine disclaimer absolves the embassy or consulate of responsibility “for the professional abil- ity ... or the quality of services provided” by those so included.) Further, the inclusion of an attor- ney’s name is at the embassy’s “exclu- sive” discretion, and no person “has a right” to be added to the list (7 FAM 992). And the department may remov e a person from the list at any time and is not obliged to disclose a reason. The FAM also underscores that such lists are for the benefit of U.S. citizens, most of whom may not speak the host country language. There’s just one catch. Notwithstand- ing the FAM’s clear intent that these lists are to serve American citizens’ interests, current regulations provide no way to act on a complaint in a timely manner. 7 FAM 993 reads: “Consular officers should keep a record of such com- plaints. Any attorney about whom more than three complaints are received from separate persons in a two-year period should be brought to the attention of [the department] for appropriate guid- ance” (emphasis added). This, in effect, elevates an attorney’s “non-right” to stay on the list above protection of U.S. citizens’ interests. Once on the list, reasonable suspicion of inappropriate behavior is not enough to get the attorney off; that behavior may continue with impunity until such time as more than three complaints are received within a two-year period. The Odds in Favor of Victimization Think about it: Before one can com- plain, one must recognize that one is or has been the victim of inappropriate attorney behavior. This is problematic in a situation where most U.S. citi- zens “may not speak the host country language” and are equally unlikely to be familiar with rights they may have under host country laws. Nor is it likely their networks of knowledgeable friends or professional contacts whom they might consult while in the United States would be duplicated while abroad—or that the circumstances, possibly traumatic, giving rise to their need for an attorney would allow for reasoned reflection. In such an environment, an unscrupulous attorney would have little difficulty treating supplicants not as “clients” but as “prey.” Not every complaint may relate to improper attorney conduct; misunder- standings can arise from an unfamiliar foreign language or legal system. In such circumstances the reduction of an oral complaint to one in writing, to which the attorney in question might similarly respond, could produce an amicable outcome. However, when such is not the case, and the complaint does relate to improper attorney conduct, the “non- right” of the attorney to have his or her name included on the list must yield to the department and embassy’s obliga- tion to put American citizens’ rights first and orient their actions toward that end. A straightforward revision of the FAM can fix this problem: First, excise the “more than three complaints in two years” standard in 7 FAM 993. Second, rewrite the appropriate sub- paragraph to specify that an American citizen’s complaint be put in writing, with the problem attorney given a chance to respond. Should the attor- ney fail to respond, his name will be removed from the Lawyers and Notaries List immediately. If the attorney’s response does not satisfy the complainant, the consulate will refer the matter to the department and, in the meantime, suspend the attorney from the list until a final deter- mination is made on the case. There’s no way of knowing how many U.S. citizen victims shady (but “listed”) lawyers have claimed in the past, or how many such victims might be spared in the future. But this much is certain: Leaving the “more than three complaints in two years” standard in place (complaints by persons who first must realize they’ve been victimized) is bound to raise the odds for victimiza- tion. Early FAM revision can lower this risk. n