Arguing Both Sides: Positional Conflicts of Interest in Antidumping Proceedings
International trade is big business for both American and foreign companies, though increasingly, it seems, better business for the latter. In October 2005 alone, imports of goods and services reached $176.4 billion while exports of goods and services lagged behind at $107.5 billion.1 The October U.S. trade deficit of $68.9 billion was $2.9 billion higher than September’s trade deficit due to the fact that imports increased more than exports.2 In its trade with China, for example, the United States saw an increase in exports to China of $3.2 billion while imports from China increased by over seven times that amount at $23.3 billion.3 With the elimination of tariffs as a form of trade protection, antidumping law, which discourages sale of foreign goods at prices lower than those in the country of origin, has been recognized as a legitimate means to protect domestic industries.4
Antidumping litigation typically involves two distinct types of parties: on the one side domestic industries that want to impose trade discipline, and on the other, foreign industries arguing against trade discipline. As a regulatory practice, antidumping proceedings take place before a small number of government departments and agencies, such as the Department of Commerce and the International Trade Commission.5 While the facts of different antidumping cases may be distinct, all cases implicate the same set of regulations and policies and, typically, the interests of foreign producers are diametrically opposed to those of domestic producers.6 For example, it may accrue to a foreign producer’s great benefit if the validity of a U.S. antidumping law is successfully challenged; however, such a precedent would be very damaging to a domestic producer that seeks protection from dumping practices.
It is thus difficult to imagine how one lawyer, or even different lawyers from the same firm, would be able to argue the respective side of the issue on behalf of both foreign and domestic clients. Yet, concurrent representation of both sides of antidumping disputes by a single firm is common rather than exceptional.7
This Note explores how concurrent representation in antidumping proceedings creates positional conflicts of interest-a conflict between the position a lawyer might take on behalf of a current client and the position it might take on behalf of another client-and how such conflicts may adversely affect the domestic and foreign parties involved. Part I provides a basic overview of antidumping proceedings and the major controversies that commonly arise. Part II introduces positional conflicts of interest and discusses the ABA Model Rules of Professional Conduct’s (“Model Rules”) treatment of such conflicts. Part III discusses how concurrent representation of both sides of antidumping proceedings, though in different actions, creates a positional conflict of interest. Part IV discusses how one practitioner of international trade law perceives the issue of concurrent representation in his field. In conclusion, the Note suggests that a mandatory disclosure requirement may best mitigate the negative effects of such positional conflicts of interest.
I. OVERVIEW OF ANTIDUMPING PROCEEDINGS
Dumping occurs when an imported good is sold at a price below the good’s fair market value in the country of origin.8 There are three types of dumping practices. Foreign producers may engage in sporadic dumping to relieve themselves of a temporary oversupply of their product as an alternative to altering their home market price.9 On the other end of the spectrum, foreign producers may engage in continuous or long-term dumping in order to reap the benefits of certain economies of scale in production.10 Between these extremes is intermittent or short-term dumping. More commonly known as predatory dumping, this practice is the target of current antidumping (“AD”) laws.11 For example, by injecting the U.S. market with very low-price silk, a foreign producer may drive its domestic competitors out of business. Once the foreign producer holds a monopoly on the U.S. silk market, it is then able to raise its originally low price to a considerably higher one.12
Because of the potentially detrimental effects of dumping, the United States and its biggest trading partners-and increasingly even developing countrieslook to AD law as their “weapon of choice” for trade protection.13 While the World Trade Organization (WTO) was founded to liberalize international trade and eliminate trade barriers such as tariffs, the Antidumping Agreement ultimately included in the WTO Agreement allows member countries to impose AD duties on imports traded at unfair prices.14 Thus, if the hypothetical textile producer sold silk in its home country for the equivalent of $2/yard (referred to as the good’s normal value), but for only $ I/yard in the United States, and in so doing caused or threatened to cause material injury to the U.S. industry, the U.S. government could impose a duty of $l/yard to offset the lower dumped price.15 The difference in price, also the value of the AD duty, of $l/yard is called the dumping margin.16
In the United States, AD proceedings usually commence when a private party petitioner, on behalf of the domestic industry, files a petition to the Department of Commerce (“Department”).17 Though not frequently the case, the Department may also commence proceedings on its own initiative.18 The competing foreign industry and the enterprises that comprise it are known as respondents, in no small part because they must respond to a large number of questions-relating to their pricing and cost data, for example-from the Department as it investigates whether dumping has occurred.19 A finding of dumping involves consideration of a number of factors, including similarity between the domestic and foreign good, the export versus home selling price of the suspect import, and cost of production.20 A separate independent government agency, the International Trade Commission (“ITC”), is responsible for determining whether there is actual or threatened material injury to the domestic industry, or whether the dumped imports materially retard the establishment of a domestic industry.21
Once the Department and ITC have found both dumping and material injury, respectively, the Department issues an Antidumping Order directing the U.S. Customs and Border Protection to collect the additional duty on future imports found to have dumping margins.22 These administrative findings may be reviewed by the Court of International Trade (“CIT”), located in New York City, and final decisions of the CIT may be appealed to the Federal Circuit, and finally to the United States Supreme Court.23 Until 2000, the extra duties collected were deposited into the U.S. Treasury.24 With the passage of the Continued Dumping and Subsidy Offset Act of 2000-better known as the Byrd Amendment after the statute’s sponsoring senator, Robert Byrd-U.S. AD proceedings gained a new point of controversy.25 Under this statute, every year the Customs Service is required to distribute the AD duties it collects to those petitioners who sought relief or supported the petition that yielded the duties.26 The Byrd Amendment, in effect, creates a double benefit for U.S. industries while creating a double disadvantage for foreign producers: respondents are first disadvantaged by the AD duty itself, and then by the subsidies given to their domestic competitors.27
WTO member states, while practicing protectionism through their own AD proceedings, were outraged by the Byrd Amendment and filed a WTO complaint in 2001.28 The WTO declared the statute illegal and required the U.S. Congress to repeal the act by December 2003.29 When that did not occur, the WTO authorized member states to utilize retaliatory measures in the form of duties worth up to 72 percent of the amount paid to American companies.30 So far, however, complaining member states have been reluctant to resort to retaliation, favoring instead the repeal of the Byrd Amendment.31 Repeal seems unlikely, though, given the sizeable subsidies American companies have received as a result of the statute: the Government Accountability Office has reported that, between 2001 and 2004, $1 billion was distributed.32 The lion’s share of the duties went to the ball bearings, candle, and steel industries, and five companies together received nearly half of the total amount distributed.33
Related to the AD duties/subsidies awarded to petitioners, and a further cause of conflict in AD proceedings, is the Department’s practice of “zeroing” negative dumping margins.34 With reference to the imaginary foreign textile producer above, the dumping margin of $ I/yard of silk is a positive margin because the selling price of the product in the United States is lower than the normal value of the product.35 If, however, the same producer sold a synthetic textile in the United States for $ I/yard more than the normal value of the product, this would be a negative margin because no dumping has occurred-in other words, the product is being sold at a higher price in the United States as compared to the country of origin.36 In such cases, the Department’s long-standing practice-as well as that of most countries that use AD law-is to attach a value of zero to negative margins when determining whether dumping has occurred.37 Thus, zeroing in the case of the foreign textile producer would yield a positive dumping margin of $l/yard on silk. The alternative, favored by respondents, is to offset instances of no dumping against instances of dumping.38 If this method were adopted, the positive and negative margins of $ I/yard would offset each other and there would be no dumping margin.
The WTO ruled in 2001 that the practice of zeroing was inconsistent with the AD agreement reached in 1994.39 Nonetheless, respondents in U.S. AD proceedings have had little success in altering the Department’s practice. In Timken Co. v. United States, for example, the CIT upheld zeroing, opining:
The EC[-]Bed Linen report does not invalidate Commerce’s zeroing practice. The [WTO] Appellate Body decision involved a dispute between India and the European Communities, and did not comment on U.S. practices. To date, no comparable WTO case has been decided concerning U.S. zeroing practices. Moreover, although the EC’s zeroing practice appears similar to the United States’ practice, this Court cannot determine from the Appellate Body report whether they are the same.40
Furthermore, in January 2005, the Federal Circuit upheld a CIT decision affirming the zeroing methodology, reasoning as Timken did that the WTO had not held U.S. zeroing practices illegal.41
It should be clear by now that petitioners and respondents in U.S. AD proceedings routinely take diametrically opposing positions on both the Byrd Amendment and zeroing. Petitioners are likely to argue the Byrd Amendment is a legitimate law under the Constitution, while respondents are likely to argue the statute is invalid because the WTO has declared it illegal. With regards to
zeroing, petitioners may seek support in the reasoning that the EC-Bed Linen case made no reference to U.S. zeroing practice and failed to invalidate the zeroing practices of other nations that also utilize AD law. In rebuttal, respondents may argue that such a construction of the WTO opinion is too narrow, and that the opinion was meant to invalidate zeroing as a general practice. With these adverse arguments in mind, can any one attorney-or firm-represent both petitioners and respondents concurrently without compromising representation? As a preliminary matter, we now turn to a general discussion of positional conflicts of interest.
II. A POSITIONAL CONFLICT OF INTEREST: MODEL RULE 1.7 APPLIED TO WILLIAMS v. STATE
Some conflicts of interest are obvious. Practitioners and laymen alike know intuitively that one lawyer cannot represent both sides in the same adverse proceeding, a prohibition codified in Model Rule 1.7.42 Model Rule 1.10 expands this concept of a conflict of interest by imputing conflicts of interest upon lawyers associated with the same firm.43 Thus, different lawyers working for a single firm are barred from doing that which one lawyer is prohibited from doing. To put it slightly different, the firm is a unitary entity just as an individual lawyer is, and therefore similarly unable to divide its loyalties among parties litigating against each other. Questions about conflicts of interest are complicated, however, when the same lawyer-or the same firm-represents opposing sides in different proceedings in which the litigated issues are the same. Recognized only relatively recently by the legal professional community, such conflicts-referred to as positional conflicts of interest-have predictably become more prevalent as law firms have grown in size and breadth of practice.44
A positional conflict of interest occurs when a lawyer or law firm advocates one legal interpretation on behalf of one client and an antagonistic interpretation of the same law on behalf of another client involved in a factually distinct proceeding.45 Professor Dzienkowski, in the first comprehensive article on the subject, analyzed positional conflicts in three different contexts: litigational, lobbying, and transactional.46 Because AD proceedings most closely approximate litigation before a court, this Note focuses on the elements of a litigational positional conflict of interest.47 The Delaware case, Williams v. State,48 provides an instructive illustration of such a conflict.
Joseph Williams was convicted and sentenced to death for first-degree murder. On appeal to the state supreme court, Williams’ lawyer, Bernard J. O’Donnell, filed a motion to withdraw as counsel, citing a potential positional conflict of interest. O’Donnell believed that “on appeal, Williams could raise an arguable issue that the Superior Court erred when it concluded it was required to give ‘great weight’ to the jury’s 10-2 recommendation in favor of the death penalty.”49 O’Donnell, however, did not believe that he was the appropriate advocate for this position. In another capital murder appeal pending before the same court, O’Donnell had argued in his opening brief that the jury vote rejecting imposition of the death penalty for his client was to be accorded great weight.50 O’Donnell was concerned that success in advocating either of these positions would undermine the other client.51
The Delaware Supreme Court granted O’Donnell’s motion to withdraw, agreeing that a positional conflict of interest existed. The court noted:
In determining whether a positional conflict requires a lawyer’s disqualification, the question is whether the lawyer can effectively argue both sides of the same legal question without compromising the interests of one client or the other. The lawyer must attempt to strike a balance between the duty to advocate any viable interpretation of the law for one client’s benefit versus the other client’s right to insist on counsel’s fidelity to their legal position.52
The court concluded by commending O’Donnell for his “adherence to the highest standards of professional conduct.”53
Though the Delaware Supreme Court did not need to do so to reach its conclusion, it nevertheless repudiated the distinction made between trial and appellate courts by Delaware’s state rule of professional conduct on conflicts of interest, identical to the corresponding then-current Comment 9 to ABA Model Rule 1.7.54 The Comment stated that “it is ordinarily not improper to assert such [antagonistic legal] positions in cases pending in different trial courts, but it may be improper to do so in cases pending at the same time in an appellate court.”55 While facially arbitrary, the distinction was premised on the belief that trial courts’ decisions affected only the cases at bar, whereas appellate courts’ decisions have precedential weight and are more likely to affect concurrent cases dealing with the same legal issues.56 As the Delaware court pointed out, the ABA Standing Committee on Ethics and Professional Responsibility had also repudiated this distinction:
The Committee does not believe that a distinction should be drawn between appellate and trial courts…. After all, the impact of an appellate court decision on the second case would be the same even if the second case were still before the trial court in that particular jurisdiction. Moreover, even if both cases were in the trial court, but assigned to different judges, the decision in the first-decided case would, in all likelihood, carry at least some precedential or persuasive weight in the second case. And if both cases should happen to end up before the same judge, the situation would be even worse. For although judges well understand that lawyers, at various stages of their careers, can find themselves arguing different sides of the same issue, the persuasiveness and credibility of the lawyer’s arguments in at least one of the two pending matters would quite possibly be lessened, consciously or subconsciously, in the mind of the judge.57
Despite this 1993 opinion, however, Model Rule 1.7 and its accompanying comments were not amended until 2002. Revised Model Rule 1.7 provides some guidance on whether a positional conflict of interest exists, through the addition of Comment 24, quoted here in full:
Ordinarily a lawyer may take inconsistent legal positions in different tribunals at different times on behalf of different clients. The mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest. A conflict of interest exists, however, if there is a significant risk that a lawyer’s action on behalf of one client will materially limit the lawyer’s effectiveness in representing another client in a different case; for example, when a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client. Factors relevant in determining whether the clients need to be advised of the risk include:  where the cases are pending,  whether the issue is substantive or procedural,  the temporal relationship between the matters,  the significance of the issue to the immediate and long-term interests of the clients involved and  the clients’ reasonable expectations in retaining the lawyer. If there is significant risk of material limitation, then absent informed consent of the affected clients, the lawyer must refuse one of the representations or withdraw from one or both matters.58
With the above overview of positional conflicts of interest in litigation as a guide, Part III analyzes whether concurrent representation of petitioners and respondents in AD proceedings implicates such conflicts.
III. REPRESENTING BOTH PETITIONERS AND RESPONDENTS: POSITIONAL CONFLICTS OF INTEREST IN ANTIDUMPING PROCEEDINGS
As discussed in Part I, parties-and their arguments-in AD proceedings are well-defined. On the one side, domestic petitioners argue that dumping has occurred and therefore duties should be imposed. Petitioners are likely to be supportive of the Byrd Amendment as well as the Department’s zeroing practice.59 Opposing petitioners are foreign respondents who argue that dumping has not occurred and therefore duties should not be imposed.60 In contrast to petitioners, respondents typically argue that both the Byrd Amendment and the Department’s zeroing have been invalidated by the WTO and should be repealed.61 Firms that represent both petitioners and respondents in their international trade practice thus face positional conflicts of interest that are not easily reconcilable even if internal conflicts checks disqualify individual lawyers from arguing antagonistic positions.62 After all, conflicts that one lawyer would face when practicing alone are imputed to her firm as a whole.63 In light of the five factors laid out in Comment 24 to Model Rule 1.7, above, representing opposing sides in AD proceedings is a troublesome practice because it implicates positional conflicts of interest.64
A. WHERE CASES ARE PENDING
The Department and the ITC share the responsibility for evaluating AD claims and compose, for all intents and purposes, the “trial court” before which petitioners, respondents, and lawyers appear. International trade lawyers thus appear before these government agencies, on behalf of their clients, time and time again. As a result, the concern expressed by the ABA Standing Committee that a lawyer’s “persuasiveness and credibility” may suffer if she argues antagonistic positions before the same tribunal aptly applies to AD proceedings.65 Furthermore, even under the pre-2002 Model Rules, such concurrent representation of antagonistic positions would have been problematic because appeals of Department decisions are made to the same appellate body, on first appeal to the Court of International Trade.66 As a consequence of specialization of practice, it is almost unavoidable that any one lawyer-and certainly any one firm-will have more than one AD proceeding pending at either the “trial” or appellate level. If a firm represents both petitioners and respondents on a regular basis, it is highly improbable for the positions espoused on behalf of these opposing clients to be in harmony with each other, particularly in regard to policy issues such as zeroing.67
B. WHETHER THE ISSUE IS SUBSTANTIVE OR PROCEDURAL
Most of the legal issues that arise in AD proceedings, such as the Byrd Amendment and zeroing, are substantive rather than procedural, and any ruling in one case is likely to affect the substantive rights of future parties.68 As discussed in Part I, Congress has not yet acted to repeal the Byrd Amendmentdespite the WTO’s ruling that it was illegal-in part because of popular support from domestic industries.69 Lawyers for respondents nevertheless can, and should, argue that the law is inconsistent with the United States’ international treaty obligations, and that the AD duties as imposed should therefore be held void.70 A law firm or lawyer who also represents petitioners eligible for Byrd Amendment distributions, however, is unlikely to make such a firm argument against the Byrd Amendment because it is not in the petitioners’ best interest to do so.71 Domestic industries derive great profit from the Byrd Amendment and, indeed, are encouraged by the “lure of big cash awards” to bring AD petitions forward.72 As a result, any vigorous argument against the law on behalf of a respondent client would not be favorable to the firm’s petitioner client. Conversely, if on behalf of a petitioner client the firm succeeds in arguing that the Byrd Amendment is valid as it stands, its respondent client will be equally unhappy.
A more important preliminary concern is whether any firm in such a position would zealously advocate for either side on the Byrd Amendment issue, knowing that “complete” victory for any one side is bound to undermine the other. A more likely circumstance is that the firm will refrain from arguing the policy issues that have the potential to impact present or future clients on the opposite side. Similar problems of soft-pedaling underlie arguments opposing and supporting the policy of zeroing.
Because substantive issues like the Byrd Amendment and zeroing are generally applicable, it may be tempting for a firm representing both petitioners and respondents to avoid making arguments on either or both of these issues, even if they may be the most compelling for the client. Such soft-pedaling can be conscious or subconscious, and is most dangerous when a firm or lawyer “changes the arguments of one or both clients with respect to the legal issue so that the positions can be reconciled.”73 When representation of clients causes such a change in strategy, in the words of Comment 24, there is “significant risk of material limitation” on the lawyer’s effectiveness.74
C. TEMPORAL RELATIONSHIP BETWEEN THE CASES
AD proceedings can occur over the importation of numerous types of goods, from foodstuffs like shrimp and catfish to manufactured goods like electronics and textiles.75 Use of AD proceedings by the major trading partners as well as by developing countries has been so extensive in recent years that AD laws are increasingly seen as broader protectionism in disguise, rather than as a tool to protect domestic industries from occasional predatory dumping.76 In the United States, the Byrd Amendment incentivizes petitioners to bring dumping complaints by giving them what amounts to a subsidy for every successful AD complaint brought.77 As of December 30, 2005, there were 333 AD orders against 41 different countries, with 18 new orders in 2005 alone.78 Given the variety of industries prone to AD litigation, the trend toward increased use of these proceedings, as well as the number of existing AD orders, it is more likely than not that there are multiple AD proceedings ongoing at the same time.79
D. SIGNIFICANCE OF THE ISSUES TO THE IMMEDIATE AND LONG-TERM INTERESTS OF THE CLIENTS INVOLVED
Petitioners and respondents are certainly interested in the outcome of their own proceedings. Particularly on issues of general applicability, like the Byrd Amendment and zeroing, parties in AD proceedings-regardless of their industry-also have a stake in the outcome of all proceedings because these decisions affect the way both petitioners and respondents do business well into the future.
Just as petitioners and respondents have long-term interests in the proceedings, so do the firms that represent them. Because domestic and foreign producers often make repeat appearances before the Department, ITC, and CIT, it is in the firms’ best interests to keep clients beyond the AD proceeding at hand. For the firm that represents both petitioners and respondents, however, keeping both types of clients happy is difficult, particularly if the firm makes arguments on the generally applicable policy issues. Any precedent that the firm sets on these issues will likely adversely affect a client on the opposite side.
E. CLIENTS’ REASONABLE EXPECTATIONS OF THE FIRM’S REPRESENTATION
The last factor laid out by Comment 24 invites the type of circular reasoning that ultimately leaves practitioners with little helpful guidance.80 Clients’ expectations are in large part shaped by what firms vying for their business communicate to them, as well by norms of the legal profession as set out by the Model Rules and other rules of professional ethics.81 For example, it is likely that if petitioners were told that their firm-in fact, all firms involved in AD proceedings-would represent them only to the extent that doing so would not interfere with the firm’s representation of respondents in similar actions, petitioners’ “reasonable” expectations would naturally accommodate any positional conflicts of interest that may arise. Conversely, if petitioners were told to expect their lawyers’ unflinching loyalty to their cause, these clients would likely not expect or tolerate concurrent representation of respondents. In other words, trying to determine whether a particular practice in the legal profession conforms to “clients’ reasonable expectations” depends at least in part on what the legal profession wants clients to think is reasonable.
If lawyers held themselves to the “highest standards of professional conduct” so admired by the Delaware Supreme Court, clients would naturally come to expect that lawyers will voluntarily divulge positional conflicts of interest. As the Model Rules stand, however, whether a “significant risk of material limitation” exists to warrant disclosure of concurrent representation is an evaluation left ultimately to the firm or individual lawyer.82 For this reason, a client may never know that its legal representation was hindered by subconscious soft-pedaling of any sort, even though it was “reasonable” for the client to expect its lawyers to use the best arguments available.
IV. A PRACTITIONER’S VIEWS AND POSSIBLE CHANGES
The analysis above suggests that concurrent representation of petitioners and respondents by one firm, even if in different AD proceedings, creates significant risk that representation afforded the parties will be materially limited where one proceeding sets precedent that impacts the other.83 This observation would be of only academic interest, however, if concurrent representation were a rare practice. To better understand whether these positional conflicts actually exist and to what extent they impact client representation, the author spoke with Nathaniel Rickard, a fifth-year associate at the firm Dewey Ballantine LLP, whose international trade group specializes in representing domestic petitioners, with rare exception.84 By contrast, a number of prominent firms with international trade practices represent both domestic petitioners and foreign respondents as a matter of course.85
Rickard doubts whether firms that represent both petitioners and respondents can really be good advocates for either side, limited as they are in advocating rulings on zeroing.86 Rickard’s firm specializes in representing only one side of the bar precisely to avoid this type of material limitation on its representation.87 With regard to how other firms deal with potential positional conflicts of interest, Rickard says that it is a “mystery” to him, but adds that he believes “these problems have been largely resolved according to the judgment of the individual practitioner, the practice group, or the firm.”88 Rickard notes that “industry practice” may affect the way practitioners analyze potential conflicts:
The ethics regulations that apply to international trade attorneys are the same as those that apply to all other attorneys. Members of the DC Bar are regulated by the DC Code of Professional Conduct, whether trade attorneys or otherwise. . .. Now that does not mean that the ethics rule[s] are applied the same regardless of practice. It is my impression that legal ethics are determined in the context of the mores of a particular practice-in other words, the relevant question is what would be a reasonable act in the context of the field. .. .89
Ethical lawyers may disagree as to whether firms should be required to split the international trade pie, thereby limiting themselves to representing only one side of all AD proceedings. After all, in other fields of law, firms often represent both plaintiffs and defendants in different cases dealing with the same issues. Perhaps all that is needed is a thorough and detailed conflicts screening process through which lawyers representing petitioners are prevented from working with lawyers in the same firm who are representing respondents. In essence, one firm’s international trade practice operates as two separate practices, with the same firm garnering the fees from both types of representation. However, this procedure, while at first blush seemingly effective, is ultimately too simplistic: Model Rule 1.10 suggests that just as one lawyer is not permitted to divide her loyalties between two clients if her representation will be “materially limited” by assuming both legal positions, one firm is not permitted to do so either, regardless of extensive conflicts screening.90
In light of the “industry practice” view of legal ethics, then, concurrent representation of petitioners and respondents is unlikely to change if only because so many firms do it. Absent exterior forces to break this cycle, positional conflicts of interest in international trade representation are likely to continue without redress, to the detriment of both petitioners and respondents. A formal ethics opinion from the American Bar Association and/or state bar associations, for example, could help to define acceptable and unacceptable types of representation in regulatory practices where the parties are as well-defined as they are in AD proceedings.91
In light of the potential “material limitation” on representation that may result when a firm represents both sides in AD proceedings, a possible remedy could be a complete ban on such concurrent representation. A less severe alternative would be to make disclosure of such concurrent representation mandatory. With regard to the first option, an ethics opinion absolutely banning concurrent representation may be overly restrictive; as laid out in Comment 24, whether representation is materially limited by a positional conflict is a matter of degree, and depends on factors such as what issues are at stake in each dispute.92 As an alternative, mandatory disclosure of concurrent representation does not seem an overly strict rule. Currently, lawyers are accorded discretion as to when disclosure is necessary-namely, when there is “significant risk of material limitation.”93 As discussed, however, this type of self-evaluation may not always yield an accurate assessment.94
Thus, under the mandatory disclosure alternative, firms representing both petitioners and respondents would be required to disclose to their clients the nature of their international trade practice, and, more importantly, to outline what limitations, if any, such concurrent representation may place on the firm’s work for each side. For example, it may be appropriate to inform petitioner and respondent clients that, because of adverse consequences to clients on the opposing side, advocating (or attacking) the Department’s zeroing practice will not be a part of litigation strategy. After such disclosure, clients may choose to sign waivers authorizing the firm to proceed as counsel, or otherwise seek out a firm that specializes only in representing their side of AD proceedings. If more clients sign waivers than seek specializing firms, it would be a good indication that clients themselves do not see concurrent representation as a cause for concern. Firms would then have legitimate support for continuing to represent both sides of AD disputes. Conversely, if clients start flocking to specializing firms, international trade practices would be well-advised to alter their industry practice.
Lawyers have the rare privilege-and responsibility-of self-regulation. Though it may be tempting to conclude that no positional conflict exists so as to retain as many clients as possible, lawyers and firms reluctant to recognize these conflicts compromise their clients’ representation. In a niche practice as specialized and contained as AD litigation, it is unlikely that concurrent representation of petitioners and respondents can be harmonized. As global trade liberalization surges forward and the volume of goods and services moving across borders continues to increase, participants in the international marketplace will require the help of knowledgeable and effective advocates to defend their interests. To protect the interests of clients and the integrity of the legal profession, firms and lawyers should be required to inform their clients about the nature, and potential limits, of their international trade representation. Such mandatory disclosure will help to ensure that the expectations of attorney and client are clear and in harmony.
1. Press Release, U.S. Bureau of Economic Analysis and the U.S. Census Bureau, U.S. International Trade in Goods and Services: October 2005 (Dec. 14, 2005), available at http://www.bea.gov/bea/newsrelarchive/2005/ tradl005_fax.pdf.
4. see generally Christopher F. Corr, Trade Protection in the New Millennium: The Ascendancy of Antidumping Measures, 18 Nw. J. INT’L L. & Bus. 49 (1997).
5. see, e.g., Peter D. Ehrenhaft, Is Interface of Antidumping and Antitrust Laws Possible?, 34 GEO. WASH. INT’L L. REV. 363, 379 (2002).
6. see discussion infra Part I.
7. E-mail from Nathaniel Rickard, Associate, Dewey Ballantine LLP, to Frances Chang (Oct. 14, 2005, 8:22 PM) (on file with The Georgetown Journal of Legal Ethics).
8. 1 JOSEPH E. PATTISON, ANTIDUMPING AND COUNTERVAILING DUTY LAWS § 1:2 n.2 (2005).
9. Id. § 1:3.
10. Id. § 1:5.
11. Id.; see also id. § 1:4.
12. see id. § 1:5. Many economists doubt that predatory behavior is prevalent. see William J. Davey, Antidumping Laws: A Time for Restriction, 1988 FORDHAM CORP. L. INST. 8-1, 8-4 to 8-17 (1988), reprinted in JOHN H. JACKSON ET AL., LEGAL PROBLEMS OF INTERNATIONAL ECONOMIC RELATIONS 685 (4th ed. 2002). While behavior of the type hypothesized may implicate antitrust law, detailed analyses of its possible repercussions as well as the purposes and effects of dumping are beyond the scope of this Note. For an analysis of the intersection of antidumping and antitrust laws, see generally Ehrenhaft, supra note 5.
13. see Corr, supra note 4, at 53.
14. see id.
15. see, e.g., JACKSON, supra note 12, at 681-82; Corr, supra note 4, at 79.
16. see PATTISON, supra note 8, § 1:2 n.2.
17. Id. § 2:1 ; see also Ehrenhaft, supra note 5, at 379.
18. PATTISON, supra note 8, § 2:2.
19. see Ehrenhaft, supra note 5, at 379.
20. see Corr, supra note 4, at 79-81.
21. see PATTISON, supra note 8, § 4:1.
22. see Ehrenhaft, supra note 5, at 379.
23. see, e.g., Description of the CIT’s Practice and Procedures, http://www.cit.uscourts.gov/informational/ about.htm#procedures (last visited Mar. 17,2006).
24. see Ehrenhaft, supra note 5, at 379-80.
25. see Sungjoon Cho, A Dual Catastrophe of Protectionism, 25 Nw. J. INT’L. L. & Bus. 315, 332 (2005).
26. see PATTISON, supra note 8, § 11:9.
27. see Cho, supra note 25, at 332.
28. Byrd-Brained, THE ECONOMIST, Sept. 4, 2004, at 69.
32. Trade Law Opponents Point to Stats from GAO, WASH. POST, Sept. 27, 2005, at A6 [hereinafter Trade Law Opponents]. Just as this Note was entering its final draft, the Senate voted to repeal the Byrd Amendment, following a House vote on similar legislation. see Paul Blustein, Senators Vote To Kill Trade Law; Byrd Amendment Illegal, WTO Says, WASH. POST, Dec. 22, 2005, at Dl. The legislation passed only after senators reached a compromise to delay repeal of the Byrd Amendment by two years. Id. While both Canada and the EU welcomed the legislation, they nonetheless continued to demand immediate repeal. Id.
33. Trade Law Opponents, supra note 32. The five companies were: the Timken Company of Canton, Ohio ($205 million); the Torrington Company ($135 million); Candle-Lite ($57 million); MPB Corporation ($55 million); and Zenith Electronics Corporation ($33 million). Id.
34. see Jeffrey D. Gerrish & Hui Yu, International Trade, 38 INT’L LAW. 225, 247 (2004).
35. see id.
36. see id.
37. see John Ragosta et al, WTO Dispute Settlement: The System Is Flawed and Must Be Fixed, 37 INT’L LAW. 697, 719-20 (2003). The signatories to the Uruguay Round of agreements that created the WTO explicitly rejected proposals to eliminate zeroing. see id.
38. see id.; Gerrish, supra note 34, at 247.
39. Appellate Body Report, European Communities-Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India, H 3, 66, WT/DS141/AB/R (Mar. 1, 2001) [hereinafter EC-Bed Linen].
40. Timken Co. v. United States, 26 Ct. Int’l Trade 1072, 1086 (2002).
41. see Coras Staal BV v. Dep’t of Commerce, 395 F.3d 1343, 1348-49 (Fed. Cir. 2005) (“WTO decisions are ‘not binding on the United States, much less this court.’ … We … accord no deference to the cited WTO cases. EC-Bed Linen is no more persuasive here than it was for the appellant in Timken, and we now reject it for the same reasons cited in that case.” (citations omitted)).
42. see MODEL RULES OF PROF’L CONDUCT R. 1.7(a) (2004) [hereinafter MODEL RULES] (“[A] lawyer shall not represent a client if… the representation of one client will be directly adverse to another client.”).
43. see MODEL RULES R. 1.10(a) (“While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by [Rule] 1.7. . .”).
44. see generally John S. Dzienkowski, Positional Conflicts of Interest, 71 TEX. L. REV. 457 (1993).
45. See id. at 460.
46. See id. at 460-61, 463.
47. Interestingly, U.S. AD proceedings have been described as a “hybrid form of proceeding-mixing adversary litigation and administrative investigation-[which] has been seriously criticized.” See Ehrenhaft, supra note 5, at 380.
48. 805 A.2d 880 (Del. 2002).
49. Id. at 881.
52. Id. at 881-82.
53. Id. at 882.
54. See id. at 881; MODEL RULES OF PROF’L CONDUCT R. 1.7 cmt. 9 (2001) [hereinafter 2001 MODEL RULES].
55. Williams, 805 A.2d at 881; see also 2001 MODEL RULES R. 1.7 cmt. 9.
56. See 1 GEOFFREY C. HAZARD, JR. & W. WILLIAM HODES, THE LAW OF LAWYERING: A HANDBOOK ON THE MODEL RULES OF PROFESSIONAL CONDUCT § 1.7:104 (2d ed. Supp. 1998) quoted in Williams, 805 A.2d at 881.
57. ABA Standing Comm. on Ethics and Prof’1 Responsibility, Formal Op. 93-377 (1993) (discussing positional conflicts of interest).
58. MODEL RULES R. 1.7 cmt. 24.
59. See supra text accompanying notes 27 and 34. see generally discussion supra Part I.
60. See supra text accompanying note 19.
61. See supra text accompanying notes 29 and 39. see generally discussion supra Part I.
62. See MODEL RULES R. 1.7.
63. See, e.g., supra note 43 and accompanying text (discussing Model Rule 1.10).
64. See MODEL RULES R. 1.7.
65. See supra text accompanying note 57.
66. See supra note 23 and accompanying text.
67. While initial dumping investigations involve facts and figures-such as cost and selling price-that are factually distinct from case to case, the determination of dumping margin invariably implicates the Department’s zeroing practice. see E-mail from Nathaniel Rickard to Frances Chang, supra note 7.
68. See supra text accompanying notes 27 and 34.
69. But see supra note 32.
70. See supra text accompanying note 29.
71. See supra text accompanying note 27.
72. See Cho, supra note 25, at 332-33.
73. Dzienkowski, supra note 44, at 485-86.
74. See MODEL RULES R. 1.7 cmt. 24.
75. See Con, supra note 4, at 55. Goods most susceptible to AD proceedings include those in the steel, electronics, textile, agricultural, and chemical industries. Id.
76. See JACKSON, supra note 12, at 682.
77. See, e.g., Cho, supra note 25, at 332.
78. International Trade Commission, Antidumping and Countervailing Duty Orders in Place as of Dec. 30, 2005, by Date of Order, http://info.usitc.gov/oinv/sunset.nsf/AHDocID/96DAF5A6COC5290985256 AOA004DEE7D?OpenDocument (last visited Mar. 17, 2006).
79. Another indicator of the number of-and by inference the temporal proximity between-AD proceedings may be garnered from the large number of law firms engaged in international trade practice. A search of www.martindale.com on January 14, 2006 for “International Trade, Law Firms, in District of Columbia,” yielded 136 distinct listings.
80. See Dzienkowski, supra note 44, at 482 n. 119.
81. See id.
82. See generally MODEL RULES R. 1.7 & cmts.
83. See generally supra discussion in Part III.
84. See E-mail from Nathaniel Rickard to Frances Chang, supra note 7. Rickard notes, “In those cases where we have represented the other side of the bar, we have sought to ensure that the issues raised which our representation will address do not run counter to the interests of our petitioner clients.” Id. ; see also description of Dewey Ballantine LLP’s international trade practice, http://www.deweyballantine.com/docs/practice/ 59.pdf?u=International%20Trade (last visited Mar. 17, 2006).
85. See, e.g., Steptoe & Johnson LLP, International, http://www.steptoe.com/index.cfm?fuseaction=ws. DspSite&site_id=455#trade_Litigation (last visited Mar. 17, 2006) (“Our firm has represented both domestic and foreign companies in well over 150 antidumping and countervailing duty cases before the US Department of Commerce and the US International Trade Commission.”); Pepper Hamilton LLP, International, http:// www.pepperlaw.com/pepper/practice_show.cfm?rid=42.0#trade (last visited Mar. 17, 2006) (“Recognizing that our clients are engaged in a complex commercial world, we represent foreign and domestic interests. Our position is that we are on the right side of every action for which we are engaged, regardless whether our client is a U.S. or foreign entity.”).
86. See E-mail from Nathaniel Rickard to Frances Chang, supra note 7.
87. See id.
90. See supra text accompanying notes 43 and 58.
91. Rickard suggests that other regulatory practices-such as employment law-may also face similar problems of positional conflicts of interest. see E-mail from Nathaniel Rickard to Frances Chang, supra note 7.
92. See supra text accompanying note 58.
93. See supra text accompanying note 58.
94. See supra text accompanying note 73.
* J.D., Georgetown University Law Center (expected May 2007). Thanks to Nathaniel Rickard for introducing me to the topic of this Note.
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