Practicing law in a foreign land

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Taking a new job or accepting a transfer to another city is invariably a big change.

But going to another country to practice law takes it to another level. Imagine no juries or no common law precedents to cite.

Three Milwaukee-area attorneys made that leap at one point or another in their careers. Phil Arieff became a prosecutor in Israel in the 1980s; Scott Campbell went to work for the Republic of Palau in the 1990s; and just this summer, Johnson Controls corporate counsel Kenneth Dortzbach returned from Germany.

Here's a look at what it's like to practice law in a foreign country, with cultures and legal systems far different from the ones we're used to.

Phillip A. Arieff

There are a number of differences between being a prosecutor in Milwaukee County and being a prosecutor in Israel.

For one, “there is very little random violence in the part of Israel where I worked,” said Glendale solo practitioner Phil Arieff, who spent 20 years in the Milwaukee District Attorney’s office, but also three years as a prosecutor in Israel, from 1984-1987.

For another, victims and defendants in Israel almost invariably know each other, sometimes too well.

Arieff prosecuted several “family honor killings,” including a case where a father poured insecticide down the throat of a daughter suspected of having sexual relations.

“The defendants usually confess, because they want to restore the family honor,” Arieff said. “So, the cases are fairly easy to prosecute, but very difficult emotionally.”

He also successfully prosecuted a terrorism case against a man who murdered a teacher and an intern in Samaria, after the murderer gave a jailhouse confession to a former terrorist who had become a cooperating informant.

But other things are the same whether prosecuting in Israel or Milwaukee: illegal drugs, fraud, embezzlement and protection rackets.

Feeling a connection with Israel and the Hebrew language, Arieff went to Israel after a couple years in the state public defender’s office. He had visited after high school, working in the forestry service, and wanted to live there.

Although he could have taken the Israeli bar exam in English, or one of several other languages, he chose to take it in Hebrew, reasoning that was the language he would be using in practice. It helped that he had studied it as an undergraduate and his wife was a native Israeli.

After clerking for an Israeli judge for a year, he joined the prosecutor’s office in the Northern District, which includes the Golan Heights, Galilee and Nazareth.

Israeli law is a mixture of Ottoman Empire law, which affords substantial local autonomy in civil and family matters, and British law in criminal matters. Lacking a written constitution, gaps in the law are filled by the Jewish Basic Laws and the Israel High Court of Justice, which functions to protect civil rights.

There is no right to a jury trial in Israel. Small cases are decided by a single judge, while three-judge panels decide felonies and major civil cases.

Among other interesting aspects of Israeli law, Arieff said that all prisoners who object to their conditions of confinement are allowed to complain directly to the Chief Judge of the District — a far cry from the American prison grievance system. And when a suspect confesses to homicide, he reenacts the crime for video recording.

According to Arieff, “Practicing law in Israel made me more culturally sensitive. I had to deal with many different cultures. Not just Arab, but even among Jews. There were Ethiopian Jews, and Jews from the Caucasus, with different cultures.”

Since returning to Wisconsin and leaving the DA’s office last year October, Arieff has been a solo practitioner in Glendale, handling primarily criminal and family matters.

Scott J. Campbell

Even in a mature republic like the United States, interesting cases still arise concerning the separation of powers between the three branches of government. But no attorney can reasonably expect to argue anything seminal, like Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

But as a young attorney in the newly-formed Republic of Palau, Milwaukee attorney Scott Campbell got to do just that in a dispute between the nation’s executive and legislative branches.

After stints as a clerk for U.S. District Court Judge John Reynolds, as an associate in a Washington, D.C., firm, and with the Milwaukee firm of Michael Best & Friedrich LLP, Campbell took a leave in February 1997 to serve as the assistant attorney general in the new Republic. He spent more than two years in Palau.

From the end of World War II until 1994, when it gained independence, Palau (an archipelago of islands between Guam and the Philippines) had been a UN trust territory.

Campbell was intrigued by the challenge of helping to establish a government and legal system in a brand new country, as well as the opportunity to experience what he describes as “the best scuba diving in the world” because of the natural coral reefs and the planes and ships that went down off the island during World War II.

Campbell did a wide variety of litigation for the new Republic. The bridge connecting the nation’s two main islands (the largest bridge of its kind in the world) had just collapsed several months earlier, and the government was suing the designers who had retrofitted it. The government even needed to get a continuance until Campbell could be hired, tie up his affairs and move to the island to lead the case.

Shortly afterward, he switched from Assistant Attorney General to Lead Counsel for the President.

But his most memorable case was representing the executive branch when it was sued by the legislature for overspending. After winning at the trial level on standing grounds, the Palau Supreme Court reversed. Without any other judges to hear the case anew, the U.S. District Court for the Northern Mariana Islands (a U.S. territory) had to be designated to hear the case. After the judge dismissed all three of the legislature’s claims (for money damages, injunctive and declaratory relief), the case again went to the Palau Supreme Court.

On his final day before returning to the United States, Campbell argued the case a second time, prevailing on every ground except declaratory relief.

“The court basically said, ‘Don’t overspend in the future,’” he quipped.

Because his wife was pregnant, Campbell decided it was time to return to the States in 1999. He has served with the DOJ in Milwaukee since then, currently handling asset forfeitures and white-collar crimes.

But his time in Palau continues to influence him.

“Practicing in Palau made me realize how fragile the ecosystem is, and how interconnected the people of the world have become,” Campbell said.

Kenneth R. Dortzbach

Working as corporate counsel for a large corporation in the United States requires flexibility, with each of the 50 states having its own set of laws to navigate.

But it’s easier than in the European Union, with the different laws, cultures and languages of 27 sov
ereign nations to navigate.

Kenneth R. Dortzbach just recently returned from Hanover, Germany, where for the past three years he served as corporate counsel for Johnson Controls’ power solutions (batteries) unit. In addition to Europe, Hanover is also the headquarters for the operations in Africa and the Middle East.

Although Dortzbach speaks German, and attended many meetings where German was spoken, he says he didn’t have to practice law in German, nor did he have to be licensed to practice there.

Instead, he acted more as a liaison between the headquarters in the United States and Europe.

“It is a different culture. Some of it is the same as here, and some is different. The trick is knowing which is which,” Dortzbach said. “With … different cultures, there are a lot of opportunities for miscommunication.”

Like French law, German law is codified, rather than based on common law and judicial precedents, he said.

But with 27 different countries in the European Union, what may be perfectly legal in some countries may be illegal in others, and heavily regulated in another group — customer raffles, for example.

Raffles are unregulated in Germany; but in France, a bailiff must preside over the drawing and the prize money must be placed in escrow; and in the Czech Republic, they can’t be done at all.

Even laws that are passed by the European Union aren’t uniform. Each country must pass legislation to comply with a given rule, but has room to maneuver and add its own spin in drafting its own law.

Each country also has its own import/export and tax laws to contend with. And there are more rules and regulations governing carbon emissions, along with the higher energy costs they entail.

Other differences involve stricter plant closing laws in Europe than the United States, and stronger union rights.

But there is a much lower volume of litigation as a whole in Europe. Dortzbach attributes the difference to “loser pays” rules, as well as limits on the damages that can be recovered in product liability actions.

Making life abroad easier was the fact that Dortzbach’s wife, Jennifer J. Kent, accompanied him. Kent is corporate counsel for Harley-Davidson, Inc., and when Dortzbach was transferred, she was able to get transferred to Europe, too.

Kent, although living in Germany, spent much of her time in Oxford, England, where H-D's European operations are based.

Kent said, "It gave me a greater sense of the cultural differences and differences in how we do business overseas; it's not always the same. Its given me a greater appreciation of the differences, and the similarities of the legal systems."

Several weeks ago, both returned to the Milwaukee offices of their respective corporations.