A U.S. Perspective on Forum Shopping, Ethical Obligations, and International Commercial Arbitration

Abstract

Every law student takes a course on legal ethics. They discuss the basics of attorneys’ ethical obligations, such as the duties of zeal, diligence, and competence. They apply these duties to certain fundamentals, like the obligation to perform adequate legal research or not to file frivolous claims. But neither law students nor scholars have considered how these ethical requirements bear on one of the most common activities in modern transactional or litigation practice: picking an advantageous forum. In short, what is an attorney’s duty to forum shop?

Forum shopping, broadly defined, is the selection or attempt to select a tribunal that will be of some benefit to one or both parties. Forum shopping can be bilateral, when it is commonly called “forum selection” — for example, choice of court clauses or arbitration agreements. Or, forum shopping can be unilateral — the filing of a complaint in a favorable forum, a motion for transfer or removal, or a motion to dismiss on the ground of forum non conveniens. Viewed through this wide lens, forum shopping is everywhere. Indeed, it crops up in some surprising ways and places. Given forum shopping’s ubiquity, we would expect courts to apply attorneys’ ethical obligation to forum shopping in much the same way they do in other contexts — such as the duties to perform adequate legal research or to not file frivolous claims. And yet, this is not the case.

Ethical obligations to forum shop are under- and over-enforced in strange ways. In the simplest formulation, attorneys may do whatever is advantageous for the client that is not frivolous — this principle embodies the canon of zeal and the restriction to file only meritorious claims and contentions. Attorneys must do whatever is good for the client, non-frivolous and is reasonable or typical for lawyers in the field. However, when courts consider what forum shopping is required, they have been reluctant to demand that attorneys provide legal advice about alternative forums, even if such a duty would normally exist. When courts consider what forum shopping is permitted, they have similarly veered away from these basic principles. This article seeks to explain the variance and argues that attorneys have, among their other ethical obligations, a duty to forum shop.

Keywords: forum shopping, arbitration, civil procedure, ethics, professional responsibility, international litigation, international arbitration