Recently I had a conversation with my colleague regarding legal representation of Defense Base Act claim in a foreign jurisdiction. He was scheduled to travel to Bosnia and Herzegovina to get a deposition done. My colleague was wondering whether he was authorized to conduct legal work in Bosnia and Herzegovina.
Background: the claim originated under the Defense Base Act, an extension of the federal workers’ compensation program that covers longshoremen and harbor workers, the Longshore and Harbor Workers’ Compensation Act 33 U.S.C. §§ 901–950. Basically, a citizen of Bosnia and Herzegovina did overseas work for a military contractor and later filed the claim with Office of Workers’ Compensation Programs (OWCP). Claimant was represented by a U.S. based attorney, and my colleague was assigned by the U.S. defense attorney for the insurance carrier.
Given I am an attorney, licensed in Bosnia and Herzegovina and in California, my colleague assumed I was right person to quell the concern he had.
The latest trend has seen many Defense Base Act claims coming in from Balkan countries, such as Bosnia and Herzegovina, North Macedonia, and Kosovo. The majority of these claims are related to PTSD and Anxiety-Depression spectrum of disorders. It is not my intention to discuss the merit of these claims, instead I will focus on representation of foreign citizens in claims originating under Federal Law.
To determine the possible issues to practice Federal Law in a foreign jurisdiction and represent a foreign citizen, I will look at this from dual perspective, as an attorney licensed in U.S. and Bosnia and Herzegovina.
In accordance to the precedents, an Attorney admitted to the Bar of any state in good standing can practice Federal Law in any of 50 states under their federal authorization at 8 CFR § 292.1. This was further discussed in U.S. Supreme Court case Sperry v. Florida (1963) and also in states that adopted ABA Model Rules 5.5 (d) 2. Situation is clear, a U.S. attorney may handle Defense Base Act claims throughout the country without any issues.
So far, all looks clear and there should not be any problems for U.S. attorney to go overseas and do whatever legal work he needs to do with regard to Defense Base Act. Well, experience has taught us that things are never that easy.
To dig bit deeper, I had to review the law of Bosnia and Herzegovina, and I do have to admit it was easier for me given I do speak language and at the end of the day, I am admitted to the Bar in Bosnia. Anyhow, the Attorney Law of Federation of Bosnia and Herzegovina § 13. (1-4) (note: this bill is currently being placed in procedural legislation to become a law) clearly states that attorney admitted to a foreign jurisdiction may represent clients within the territory of Bosnia and Herzegovina before court and administrative bodies only if there is a reciprocity agreement set in place with his originating country; and said attorney shall get permission from Department of Justice of Federation of Bosnia and Herzegovina to appear before judicial or administrative bodies. The attorney must also provide a certificate of good standing from his or her home jurisdiction. (see. http://parlamentfbih.gov.ba/dom_naroda/v2/userfiles/file/Materijali%20u%20proceduri_2018/Nacrt%20zakona%20o%20advokaturi%20FBiH_bos.pdf). However, I found nothing in the laws of Bosnia and Herzegovina that prohibits U.S. attorneys from taking depositions in Bosnia and Herzegovina from a voluntary witness for use in U.S. courts. On the flip side, it is not specifically allowed either.
That being said, I communicated my finding back to my colleague and also I expanded my research to other Balkan countries. What I found, for example in Kosovo, was that local authorities do not permit foreign persons, such as American attorneys, to take depositions for use in a court in the U.S. All requests for obtaining evidence, including requests to compel evidence or to take voluntary depositions, must be submitted via the letters rogatory process. The Kosovo prohibition on taking depositions by foreign persons extends to telephone or video teleconference depositions initiated from the United States to depose a witness in Kosovo. The State Department advises U.S. citizens contemplating participation in such a proceeding, without Kosovo’s concurrence, obtained through diplomatic channels, to consider carefully the possible legal consequences of doing so. (see: https://travel.state.gov/content/travel/en/legal/Judicial-Assistance-Country-Information/kosovo.html).
That being said, my colleague told me well “everything which is not forbidden is allowed”. I replied yes, as much is an attorney from Bosnia and Herzegovina allowed to come into one of the states and start taking depositions without any approval.
