The Ten-Day Certification Outside the Practice
Ana Petrov is a licensed practitioner specializing in domestic employment compliance. Her largest client, Cedar Point Facilities, asks her to review a proposed data-transfer arrangement involving employee records sent from its California office to a contractor in São Paulo and to certify that the arrangement meets Brazilian data-protection law. Ana has never worked with Brazilian law and does not read Portuguese. The client’s general counsel says a local lawyer quoted $18,000 and six weeks; Cedar Point wants Ana to “give it a quick look” and sign the certification within 10 days because a payroll migration is scheduled. The engagement letter Ana used was drafted for U.S. wage audits and includes a clause requiring arbitration of all disputes and capping liability at fees paid. Cedar Point’s HR director, whose first language is Tagalog, will be the main contact and has asked to conduct interviews with Ana without an interpreter to “save time.” Ana has 11 other open matters.
1. May Ana accept the certification request? Analyze competence, scope, and the deadline pressure.
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Competence. Competence requires the knowledge, skill, thoroughness, and preparation reasonably necessary for the matter. Ana has none of the Brazilian law expertise and cannot read the source material. A “quick look” does not cure that. Signing a certification would be a representation that she has the competence to make it, which she does not.
Scope limitation. Ana may be able to assist with the U.S. side of the transfer, such as the California employment and notice issues, if she clearly defines that scope in writing and obtains the client’s informed consent. She should not certify Brazilian compliance. The engagement letter should state what she will not do and that the client must rely on qualified Brazilian counsel for that opinion.
Association. The better path is to associate Brazilian counsel, with the client’s consent, and have that counsel provide the certification or opinion. Ana can coordinate and review the U.S. elements. The $18,000 quote and six-week timeline are the client’s business problems, not a reason to accept work beyond her competence.
Deadline and capacity. Ten days and 11 other open matters create a supervision and quality risk. If Ana cannot obtain the needed expertise and complete a competent review in time, she should decline the certification and explain the risk in writing. She should document the advice and the client’s decision.
2. How should Ana handle the HR director’s request to proceed without an interpreter?
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Identify the risk. The HR director will be the main contact for interviews and will convey information about employee records and consent. If her comprehension of English is limited, proceeding without an interpreter creates a risk that instructions are misunderstood and that the client’s consent is not informed. “Saving time” is not a sufficient reason to accept that risk.
Use a qualified interpreter. Ana should arrange a professional interpreter with employment and data-protection vocabulary, not a family member or a bilingual employee who may have a conflict. If the HR director prefers a particular interpreter, Ana should confirm qualifications and independence. The interpreter should be told to interpret accurately and not to summarize or advise.
Confirm understanding. Ana should use plain language, provide key documents in advance, and ask the HR director to explain back the scope, the limitations, and the deadline. The conversation should be documented, including the interpreter’s name and the language used.
Client autonomy. If the client refuses a qualified interpreter after being advised of the risks, Ana should document the refusal and consider whether she can proceed competently. She should not allow the HR director’s preference to override the need for informed communication, particularly where employee data and consent are at issue.
3. What should Ana do about the arbitration clause and liability cap in the old engagement letter?
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Explain the terms. Arbitration and liability-cap clauses materially affect the client’s rights. Ana should explain them in plain language, including what claims would be arbitrated, who pays, and what the cap means in practice. The explanation should be documented, preferably with a signed acknowledgment.
Do not use the clauses to avoid duties. A liability cap does not eliminate the duty of competence, and an arbitration clause does not prevent a regulatory complaint or disciplinary proceeding. Ana should not treat the clauses as a substitute for competent work or as a reason to accept the certification.
Fit the terms to the engagement. The old letter was drafted for U.S. wage audits. It may not address data transfers, third-party contractors, or the use of local counsel. Ana should issue a new or amended engagement letter that defines the scope, identifies the client entity, addresses the use of Brazilian counsel, and states the fee. If the client will not agree to appropriate terms, Ana should decline the certification.
Conflicts and capacity. Ana should also confirm that she can meet the deadline with 11 other open matters. If not, the engagement terms do not solve the capacity problem. She should document the advice and the client’s decision.