Retaining a Foreign Attorney


DISCLAIMER: THE INFORMATION IN THIS CIRCULAR IS PROVIDED FOR GENERAL INFORMATION ONLY. THE DEPARTMENT OF STATE MAKES NO WARRANTY REGARDING THE ACCURACY OF THIS INFORMATION. WHILE SOME OF THE INFORMATION IS ABOUT LEGAL ISSUES, IT IS NOT LEGAL ADVICE. QUESTIONS INVOLVING INTERPRETATION OF SPECIFIC FOREIGN LAWS SHOULD BE ADDRESSED TO FOREIGN ATTORNEYS.

PROVISO: Officers of the Department of State and U.S. Embassies and Consulates abroad are prohibited by federal regulation from acting as agents, attorneys or in a fiduciary capacity on behalf of U.S. citizens in private legal disputes abroad. (22 CFR 92.81; 10.735-206(a)(7); 72.41; 71.5.)

RECOMMENDING A FOREIGN ATTORNEY: 22 CFR 92.82 provides that Foreign Service officers shall refrain from recommending a particular foreign attorney, but may furnish names of several attorneys, or refer inquiries to foreign law directories, bar associations or other organizations.

FOREIGN ATTORNEYS REPRESENTING THE U.S. GOVERNMENT ABROAD: U.S. embassies and consulates abroad generally do not have foreign attorneys on a retainer to represent the interests of the U.S. Government. (See 22 U.S.C. 2698(a); 28 C.F.R. 0.45; Volume 2, Foreign Affairs Manual (FAM), Department of State, Sec. 283; Volume 9, Foreign Affairs Manual, Sec. 971.2.)

BACKGROUND: This information flyer was devised primarily for the lay person confronted with a private legal problem abroad. It contains general practical suggestions for dealing with a foreign attorney. General information concerning foreign legal aid is also discussed. For American lawyers facing the task of retaining foreign legal counsel, see Lewis, Selecting and Working With Foreign Counsel, The International Lawyer's Deskbook, American Bar Association, 393-410 (1996) and Epstein & Snyder, International Litigation: A Guide to Jurisdiction, Practice and Strategy, 2nd, 2.10-2.13, p. 2-17 - 2-24 (1994).

WHAT TYPE OF LAWYER WILL YOU NEED:

Barristers and Solicitors: In some foreign countries it may be necessary to retain the services of both a solicitor and a barrister. In such jurisdictions, barristers are allowed to appear in court, including trial courts and higher courts of appeal or other courts. Solicitors are allowed to advise clients and sometimes represent them in the lower courts. They may also prepare cases for barristers to try in the higher courts..Notaries, "Notaires", "Notars", and "Huissiers": In some countries, notaries public, "notaires", "notars" and "huissiers" can perform many of the functions performed by attorneys in the United States. A notary in a civil law country is not comparable to a notary public in the United States. Their education and training differs from that of most notaries public in the United States. They frequently draft instruments such wills and conveyances. In some countries a notary is a public official appointed by the Ministry of Justice, whose functions include not only preparing documents, but the administration and settlement of estates. Such notaries serve as repositories for wills and are empowered to serve legal documents. In some countries "huissiers" serve documents. They are not lawyers, but are very specialized members of the foreign legal profession. They may not plead cases in court. Your foreign attorney may delegate certain functions to a notary, "notaire", "notar" or "huissier".

Foreign Legal Consultants: These are U.S. law firms with offices in foreign countries. They may or may not be licensed to practice law abroad.

Selecting an Attorney: When you receive a list of attorneys, consider contacting several attorneys, briefly describing the nature of the services you desire. Find out the attorney's qualifications and experience. Find out how the attorney plans to represent you. Ask specific questions and expect the attorney to explain legal activities in language that you can comprehend. Do not turn over documents or funds until you are satisfied that the attorney understands your problem and is willing to handle your case. Find out the rules of the foreign country concerning attorney-client confidentiality.

GUIDELINES ON HOW TO DEAL WITH YOUR FOREIGN ATTORNEY:

Understanding Your Attorney: Ask your attorney to analyze your case, giving you the positive and negative aspects and probable outcome. Do not expect your attorney to give a simple answer to a complex legal question. Be sure that you understand the technical language in any contract or other legal document prepared by your attorney before you sign it.

Fees: Find out what fees the attorney charges and how the attorney expects to be paid. In some countries fees are fixed by local law. Establish a billing schedule that meets your requirements and is acceptable to the foreign attorney. Foreign lawyers may be unaccustomed to including a description of work performed in connection with billing. Some foreign attorneys may expect to be paid in advance; some may demand payment after each action they take on your behalf and refuse to take further action until they are paid; and some may take the case on a contingency or percentage basis, collecting a pre-arranged percentage of moneys awarded to you by the foreign court. Request an estimate of the total hours and costs of doing the work. Be clear who will be involved in the work and the fees charged by each participant. Determine costs if other attorneys or specialists need to be consulted, such as barristers. See "Payment of Attorneys and Litigation Expenses in Selected Foreign Nations", U.S. Library of Congress, Law Library, Doc. LL-95-2 (March 1995) (Includes information on Australia, Canada, China, France, Germany, Great Britain, Greece, India, Italy, Japan, Mexico, Netherlands, Poland, Sweden and Taiwan.)

Method of Payment: Find out the expected means of payment (corporate check, bank check, personal check, international money order, wire transfer), specify currency and exchange rates (when and where applicable or feasible).

Progress Reports: Ask that your attorney keep you informed of the progress of your case according to a pre-established schedule. Remember that most foreign courts work rather slowly. You may, therefore, wish the attorney to send you monthly reports, even though no real developments have ensured, simply to satisfy your doubts about the progress of the case. Ask what the fee will be for progress reports.

Language: Is the attorney fluent in English? This may or may not be important to you. If the foreign attorney does not speak or write in English, you can arrange for translation of correspondence. Attorneys on lists prepared by the U.S. embassies and consulates abroad do speak English.

Document Translations: If you need to provide complex or technical documents to your attorney, you may wish to consider having the documents translated into the attorney's native language. Remember that even a fundamental knowledge of English may not be enough to enable the attorney to understand technical documents you provide. Discuss with your attorney whether it is preferable to translate the documents in the U.S. or in the foreign country. Compare the costs.

Communication: Remember your responsibility to keep your attorney informed of any new developments in your case. Be honest and frank with your attorney. Tell the attorney every relevant fact in order to get the best representation of your interests. Establish how you be communicate with your foreign attorney (mail, phone, fax, Internet.)

Time: Find out how much time the attorney anticipates the case may take to complete. (Note: in some countries the courts recess for a period of several months. In addition, even if the case is resolved, currency control laws may delay the transfer of funds awarded to you from the foreign country for an indefinite period of time. Discuss these issues with your attorney to ensure there is no confusion.

Authentication and Translation of Documents: It may be helpful for you to provide foreign authorities or your attorney with authenticated, translated copies of pertinent documents. Consult your foreign attorney before going to this expense. An information flyer explaining the authentication process is available from the Office of American Citizens Services, either by mail or through our automated fax system or via our Internet Consular Affairs Home Page described below under "Additional Information". These topics include "Hague Legalization Convention" (AUTOFAX document 1053) and "General Authentication Flyer" (AUTOFAX document 1046). See also the U.S. State Department's Authentications Office Home Page at http://www.state.gov/www/authenticate/index.html.

Records: Consider requesting copies of all letters and documents prepared on your behalf. Inquire about the costs of mailing you such documents.

Complaints Against Foreign Attorneys: If the services of your foreign attorney prove unsatisfactory, in addition to notifying the U.S. Department of State and/or the consular section of the U.S. embassy or consulate abroad, you may address your complaints to the local foreign bar association. Information about foreign bar associations may be obtained from the U.S. embassy or consulate abroad. Foreign embassies and consulates in the U.S. may also have information on this subject.

Assistance of U.S. Embassies and Consulates: Should your communication with a foreign attorney prove unsatisfactory, a U.S. consular officer may, if appropriate, communicate with the attorney on your behalf. In addition, complaints against foreign attorneys whose names appear on the consular list of attorneys can result in the removal of their names from the list.

Coordination with Attorneys in the U.S.: American attorneys may not be in a position to represent your interests abroad, particularly because generally they will not be permitted to participate in foreign court proceedings under the laws of the foreign country. American attorneys experienced in international law procedure may be helpful in explaining the complex legal issues involved in your case and some may have associates abroad to whom they can refer you.

Finding A Foreign Attorney:

U.S. Department of State, Bureau of Consular Affairs, Office of American Citizens Services and Crisis Management, (CA/OCS/ACS), Room 4811A, 2201 C Street N.W., Washington, D.C. 20520; tel: 202-647-5225 or 5226. Please send a stamped, self addressed envelope, 8 1/2 x 11, to accommodate postage for 20 sheets of paper or more. These lists of attorneys are also being added to the Internet home pages of our U.S. embassies and consulates which are linked to the State Department Consular Home Page at http://.travel.state.gov/ which can also be accessed through the main State Department Home Page at http://www.state.gov/ under travel or consular. Lists of attorneys are prepared by U.S. embassies and consulates triennially (every three years). The lists include names, addresses, telephone numbers, etc., and information concerning the foreign attorney's educational background, areas of specialization, and language capability. When compiling the lists, U.S. consular officers send letters and questionnaires to the attorneys in their consular district in the foreign country. American attorneys licensed to practice in the foreign country or working as foreign legal consultants are also included. Local foreign bar associations are used as a resource in determining whether an attorney is in good standing. See Volume 7, Department of State Foreign Affairs Manual 990 (8/30/94) and 22 CFR 92.82.

Law Directories:

DISCLAIMER: The Department of State assumes no responsibility for the professional ability or integrity of the firms or persons whose names appear in the attached list. The order in which they appear has no significance.

Martindale-Hubbell Law Directory, 800-526-4902, on-line via Lexis. See also the Martindale-Hubbell Home Page on the Internet at http://www.martindale.com/products/digests.html.

Campbell's List - A Directory of Selected Lawyers, 407-644-8298.

Russell Law List - Legal Correspondents International, 410-820-4475.

The American Lawyer - Practice Directories, 212-973-2800.

American Bar Association, 1995 Directory of Lawyer Referral Services in the U.S. and Canada.

ABA INTERNATIONAL LIAISON SECTION: While the ABA does not provide international referrals, it can provide the names and addresses of national or local bar associations as well as the names of several reference guides. Contact the Section by e-mail at intlliaison@abanet.org or call 312-988-5107 or visit the Section's Home Page at American Bar Association, International Liaison Office, http://www.abanet.org/liaison/home.html.

LEGAL AID: There may be facilities in the foreign country for low cost or free legal services. If information is not included in the consular list of attorneys, ask the local foreign bar association or Ministry of Justice about the availability of legal aid. Contact the legal attaché or consular section of the foreign embassy in Washington for specific guidance. Legal aid information may also be available from a local branch of the International Social Service. The agencies' headquarters are in Geneva, Switzerland, but information or assistance may be available through its New York branch at 10 W. 40th Street, New York, N.Y. 10018, 212-532-6350. See also, American Bar Association, Directory of State and Local Lawyer Assistance Programs in the U.S. and Canada.

See Also:

DISCLAIMER: The Department of State makes no warranty or guarantee concerning the accuracy or reliability of the content of other web sites. The order in which they appear has no significance.

ABA Standing Committee on Lawyer Referral and Information Service: http://www.abanet.org/legalserv/Irishome.html.

ABA Divison for Legal Services: Access to Justice: http://www.abanet.org/legalserv/home.html

ABA Standing Committee on Legal Aid and Indigent Defendants: http://www.abanet.org/legalserv/sclaid.html

ABA Resources on Legal Services for the Poor: http://www.abanet.org/legalserv/sclaidpubs.html

ABA Center for Pro Bono; Pro Bono Hotline: 312-988-5769; Internet: http:www.abanet.org/legalserv/probono.html

EU/EEA Countries: (AUSTRIA, BELGIUM, DENMARK, FINLAND, FRANCE, GERMANY, GREECE, ICELAND, IRELAND, ITALY, LUXEMBOURG, THE NETHERLANDS, NORWAY, PORTUGAL, SPAIN, SWEDEN, UNITED KINGDOM) via the Internet: http://europa.eu.int/en/comm/spc/la/c4.htm

BAR ASSOCIATIONS:

DISCLAIMER: The Department of State makes no warranty or guarantee concerning the accuracy or reliability of the content of other web sites. The order in which they appear has no significance.

American Bar Association, 750 N. Lake Shore Drive, Chicago, IL 60611, 312-988-5000, home page via Internet: http://www.abanet.org/.

American Bar Association, Section of International Law and Practice, http://www.abanet.org:80/intlaw/home.html.

American Society of International Law, 2223 Massachusetts Avenue, N.W., Washington, D.C. 20008, Tel: (202) 939-6000; Fax: (202) 797-7133.

Inter-American Bar Association (IABA), 1211 Connecticut Avenue, N.W., Suite 202, Washington, D.C. 20036; tel: 202-393-1217; fax: 202-393-1241, Home Page via Internet: http://www.erols.com/iaba/.

International Bar Association (IBA), 2 Harewood Place, Hanover Square, London, WIR9HB, England, Tel: (011) (44) (171) 629-1206; Fax: (011) (44) (171) 409-0-456.

Inter-Pacific Bar Association (IPBA), Nashiazabu Sonic Building, 3-2-12 Nichiazabu, Minato-Ku, Tokyo, 106, Japan, Tel: (011) (81) (3) 34085079; Fax: (011) (81) (3) 334085505.

Law Association for Asia and the Pacific, 33 Barrack Street, 3rd Floor, Perth, W.A., 6000, Australia, Tel: (011) (61) (9) 221-5914.

National Asian Pacific Bar Association (NAPABA) at www.napaba.org.

Union Internationale des Avocats (UIA), 25 Rue de Jour, Paris, France, 75001, Tel: (011) (33) (1) 4508-8231; Fax: (011) (33) (1) 4508-8231.

World Jurist Association, 1000 Connecticut Avenue, N.W., Suite 202, Washington, D.C. 20036, Tel: (202) 466-5428; Fax: (202) 452-8540.

Other Resources:

Library of Congress Law Library, Room 240, James Madison Bldg., 101 Independence Avenue, S.E., Washington, D.C. 20540, tel: 202-707-5079 or via the Internet at http://lcweb2.loc.gov/glin/lawhome.html.

SELECTED REFERENCES:

American Bar Association, Report on the Regulation of Foreign Lawyers (1977).

Aranson, The United States Percentage Contingent Fee System: Ridicule and Reform From An International Perspective, 127 Texas Int'l L.J. 755-793 (1992).

Bader-Ginsburg, Chairman, The Availability of Legal Services to Poor People and People of Limited Means in Foreign Systems, 6 Int'l Law. 128 (1971).

Barrager, The Great Lawyer Lockout, The Journal of the American Chamber of Commerce in Japan, 10-18, (November 1991).

Barsade, The Effect of EC Regulations upon the Ability of U.S. Lawyers to Establish a Pan-European Practice, 28 Int'l Law. 313 (1994).

Bisconti, Reform of the Professional Law in Italy, 14 Int'l Legal Prac. 55 (1989).

Boyd, Mutual Recognition of Lawyers' Qualifications, Bus. L. Rev. 163 (June 1986).

Brown, The Foreign Lawyer in France, 59 A.B.A.J. 365 (1973).

Busch, The Right of United States Lawyers to Practice Abroad, 3 Int'l Law. 297 (January, 1971).

Busch, The Right of United States Lawyers to Practice Abroad, 3 Int'l Law. 617 (April, 1971).

Comment, Providing Legal Services in Foreign Countries: Making Room for the American Attorney, 83 Colum. L. Rev. 1767, 1768-69 (1983).

Comment: International Legal Practice Restrictions on the Migrant Attorney, 15 Harv. Int'l L.J. 298 (1974).

Comment, The Legal Services Act of the Republic of Croatia -- A Guarantee of the Advocate's Independence and Autonomy, 29 Int'l Law. 209 (1995).

Dedingfield, The Contingency Fee System in America, 143 New Law Journal 1670 (Nov. 26, 1993).

Directory of Legal Aid and Advice Facilities Available Throughout the World, the International Legal Aid Association, International Bar Association, (1966).

Epstein & Snyder, International Litigation: A Guide to Jurisdiction, Practice and Strategy, 2nd, 2.10-2.13, p. 2-17 - 2-24 (1994).

Figa, The "American Rule" Has Outlived Its Usefulness; Adopt the "English Rule," 9 Nat'l L.J. 13 (1986).

Finding the Right Lawyer, American Bar Association, Law Practice Management Section, LC: 94-76852 (1995). Can be ordered via internet: http://www.abanet.org/store/con-bandp.html.

Friedman and Wilson, Representing Foreign Clients in Civil Discovery and Grand Jury Proceedings, 26 Va. J. of Int'l L. 327 (1986).

Georgakakis, Greece Allows Lawyers to Form Companies, Int'l Fin. L. Rev. 12 (July 1990).

Goebel, Lawyers in the European Community: Progress Towards Community-Wide Rights of Practice, 15 Fordham Int'l L. J. 556, 563 (1992).

Goebel, Professional Qualification and Educational Requirements for Law Practice in a Foreign Country: Bridging the Gap, 63 Tul. L. Rev. 443, 475 (1989).

Greiter, How to Get Your Money in Foreign Countries: A Survey of Court Costs and Lawyer's Fees in 151 Countries, (Boston, Kluwer Law and Taxation Publishers, 1988).

Harper, Bye Bye Barrister, 76 American Bar Association Journal 58-62 (Mar. 1990).

Hergen, How to Practice Family Law in Europe When You're Not European", 3 Family Advocate 25, Spring (1981).

Hieros Gamos, List of Bar Associations, http://www.hg.org/.

Hufbauer, Europe 1992: Opportunities and Challenges, Brookings Rev., Summer 1990 at 15; Story, supra note 12, at 18, 27.

Kenadjian, R. Wohl, S. Chemtob, & G. Fukushima, Practice By Foreign Lawyers in Japan, Fordham International Law Journal, 1989-1990, Vol. 13, No. 3, pp. 390-404.

Knoppek-Wetzel, Employment Restrictions and the Practice of Law by Aliens in the United States and Abroad, Duke L.J. 871 (1974).

Kritzer, The English Rule, 78 A.B.A.J. 54 (Nov. 1992).

Lewis, Selecting and Working With Foreign Counsel, The International Lawyer's Deskbook, American Bar Association, 393-410 (1996).

Lang, European Community Law, Irish Law and the Irish Legal Profession -- Protection of the Individual and Cooperation between Member States and the Community, 5 D.U.L.J. (n.s.) 1 (June 1983).

Lex Mundi Directory of Law Firm Associations, Alliances, Clubs, and Other Affiliations, Int'l Law. Newsletter, vol. xv, no. 6, 1993, at 26-37.

Lowry, Foreign Legal Consultants in Connecticut, 16 Int'l Legal Prac. 115 (1991).

MacMullin, Foreign Attorneys in Japan: Past Policies, The New Special Measures Law and Future Expectations, Florida International Law Journal, Fall 1988, Vol. 4, No. 1, pp. 51-84.

McCrory, Reform of the English Legal Profession: An American's Perspective, 134 Solicitor's Journal 819-821 (June 1, 1990).

Napier and Armstrong, Costs After the Event (United Kingdom), 143 New Law Journal 12 (Jan. 8, 1993)

Note, Foreign Branches of Law Firms: The Development of Lawyers Equipped to Handle International Practice, 80 Harv. L. Rev. 1284 (1967).

Payment of Attorneys and Litigation Expenses in Selected Foreign Nations, U.S. Library of Congress, Law Library, Doc. LL-95-2 (March 1995).

Pfennigstorf, The European Experience With Attorney Fee Shifting (Research Contributions of the American Bar Foundation, 1984, No. 2.), reprinted from 47 Law and Contemporary Problems 37 (1984).

Ramseyer, Lawyers, Foreign Lawyers, and Lawyer-Substitutes: The Market for Regulation in Japan, Harvard International Law Journal, 1986, Vol. 27, pp. 499-539.

Roorda, The Internationalization of the Practice of Law, 28 Wake Forest L. Rev. 141, 150 (1993).

Rubenstein, Foreign Firms Offer Quality Work at Bargain Rates, Crop. Legal Times Nov. 1992, at 12.

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Saunders, The EEC and the USA: Will the Gates Be Oened for American Law Firms in 1992?, 3 Temple Int'l & Comp. L.J. 191, 214 (1989).

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Sydney, Are Some Lawyers More Equal than Others?, Int'l Fin. L. Rev. 16 (Aug. 1989).

Tada, Role of Corporate Legal Departments in Japan, The International Lawyer, Winter 1988, Vol. 22, No. 4, pp. 1141-1144.

The American Lawyer: When and How to Use One, American Bar Association, Public Education Division, PC: 235-0021 (1993). Can be ordered via internet: http://www.abanet.org/store/con-bandp.html.

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Toumlin, The Right of Barristers to Practice in the EEC, New L.J. 1309 (1990).

Toumlin, A Worldwide Common Code of Professional Ethics?, 15 Fordham Int'l L.J. 673, 685 (1991-1993).

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ADDITIONAL INFORMATION: The Office of American Citizens Services has available general information flyers on international judicial assistance many of which are available through our automated fax system or via our Internet Consular Affairs Home Page.

Using the Autofax System:

* Dial (202) 647-3000 using the phone on your fax machine.

* Follow the prompt to obtain a printed index of judicial assistance topics. There are four indexes.

Travel Information - Index of Countries - Press 1
Passports and Visas - Index of Flyers - Press 2
Judicial Assistance - General and Country Specific - Press 3
Child Custody and Adoption - Index of Flyers - Press 4

* Enter the four digit code for the document desired as listed in the index.

* When the prompt identifies the document and asks if you want that document, enter Y (9) for yes or N (6) for no.

* If you want another document, enter the four digit code, using the same procedures noted in the previous step.

* When you finish selecting, press the # key on the phone keyboard and press the start button on your fax machine.

* After a brief delay of up to a minute, the documents will print automatically on your fax machine.

Using the Internet: Many of our judicial assistance flyers are also available on the Internet via the Department of State, Bureau of Consular Affairs Home Page at http://travel.state.gov/ under International Legal Assistance or through the main State Department Home Page at http://www.state.gov/ under Travel, Consular, or International Legal Assistance. See also, the Department of State, Office of the Legal Adviser for Private International Law (L/PIL) Home Page at http://his.com/~pildb/ for information regarding private international law unification. See also the Home Pages for many of our embassies which are linked to the Consular Affairs Home Page.

Questions: Additional questions may be addressed to the U.S. Department of State, Bureau of Consular Affairs, Office of American Citizens Services at (202) 647-5225 or 202-647-5226.

CA/OCS/ACS 5/97