Middle East meets West

Issue March 2012 By Christina P. O’Neill

Joseph McDonough nurtures acceptance of rule of law education

When Boston attorney Joseph B. McDonough ran through the basics of electronic contract law at the Sultan Qaboos University Law College in Oman in 2009, his fourth-year law students gave him quizzical looks. "I was really teaching my students contracts for the first time," he says. "I realized that they didn't have the foundation that [Western] students have in contracts."

That knowledge gap is something that McDonough, who has 25 years of teaching experience, is bridging, not only in Oman, but throughout his career. His experience in international law has led to his appointment as a partner in the Abu Dhabi office of Holland & Knight LLP. The firm is expanding that office, which opened four years ago, due to the region's rapid growth in energy, construction, transportation, finance and international arbitration. The Abu Dhabi office currently has 10 employees - half of them from the U.S. and half from the Middle East.

He has lived in the Middle East for the past few years. He has recently been selected to coordinate judicial reform and education programs for the supreme courts of Oman, Bahrain, Nepal and Yemen, all of which have large Muslim populations. "After preaching and advocating for three years, the opportunity with Holland & Knight will allow me to practice what I preach," he says.

In his new post, he will work with younger attorneys from the region, many of whom have attended Western law schools. He will be charged with bringing them from the status of younger associates, arranging mentors for them, and getting them to work as a team, using critical thinking skills.

Commerce without borders

The adoption of uniform commercial standards, while necessary to make the country more attractive to business investment and development, is a delicate dance of diplomacy - the choreography of which McDonough is familiar.

Over three decades, Oman's economic departments and its Ministry of Legal Affairs have been codifying its commercial law to conform more closely to global commerce standards, but the country's legal educational system hadn't kept up. When McDonough joined the SQU faculty in 2009 as the first Westerner to serve as an adjunct law professor in commercial law, no faculty member had experience in practicing or teaching electronic commerce, and the country's judiciary was concerned that they would be asked to replace Shariah law, derived from the Quran and which tends to be vague in commercial areas, with Western law.

SQU had been an exclusively Shariah law program until 2004, when it began a commercial track reflecting global standards. Upon his arrival, McDonough constructed a course patterned on the Electronic Transactions Law, passed in Oman in 2008, collaborating with Dr. Hussain Said Al Ghafri, of the Oman Information Technology Authority, and utilizing course materials from the U.S. Commerce Department's Commercial Law Development Program. James Filpi, now senior counsel with the Commercial Law Development Program (CLDP) in the Office of the General Counsel of the U.S. Department of Commerce, is a colleague of McDonough's, and formerly worked for Goodwin Procter in its Washington, D.C. office.

"It was a great subject, because commerce knows no borders," McDonough says.

Books on the ground

McDonough developed an interest in foreign countries early on. Recreational travel was part of his family life, dating from the time he was too young to accompany his older siblings. A childhood injury that sidelined him for a year turned him into an avid reader, and high on his list was anything about travel. In addition to the three years he has so far spent in the Middle East, he has also worked in China and several Eastern European countries, under the auspices of the American Bar Association and the U.S. State Department of Commerce.

He is the former executive director of the Massachusetts Judges Conference, where he initiated its international outreach program. It has involved more than 700 judges and legal professionals in 14 developing countries. He developed and traveled on U.S. State Department programs in Russia six times, primarily regarding IP rights protection, advocacy and training.

As a visiting fellow with the McCormack Graduate School of Policy Studies Center for Democracy and Development, he worked on program development for the 1998 Rule of Law delegation from the Supreme People's Court of the People's Republic of China, organized and participated in the State Department-sponsored Moot Court/Judicial Exchange program in Beijing and Western China, and coordinated judicial education and consultancy projects in six former communist Central European countries.

"I took a much stronger interest in the Middle East after 9-11, as I felt strongly that the U.S. needed a strong civilian presence teaching and consulting on [the rule of law]," he says. "Books on the ground, not just boots on the ground, so I explored opportunities in the [Middle East - North Africa] region."

Socrates and a laptop

A series of ABA studies, begun in Oman in 2004 and funded by the U.S. State Department and USAID, examined possibilities for improving legal education in that country. At the time, students were graduating from law schools with broad theoretical education but little training in how to help clients.

At the behest of the State Department, improving legal education has become a policy objective, and the ABA has responded in Oman and many other countries. "It was a seismic shift to transition from Mosque-based religious law studies to a legal system that could bring Oman into the global marketplace, and its young students to learn new methods of thinking and lawyering," McDonough says.

In 2006-7, California Superior Court Judge Ernest Borunda did an ascertainment and review with local Omani legal academics and drafted recommendations. Concurrently, and completed in 2008, SQU's university chancellor retained a team of consultants from the United States and Canada to review the law program and make recommendations, McDonough reports.

In 2008, the dean and the associate dean of the university told him that his own assessment, which recommended more practical and experiential legal education, dovetailed with the findings of the other two sets of studies. At the time, students were graduating from law schools with broad theoretical education but little training in how to help clients, and postgraduate education "was uneven, to say the least," he says.

The leadership at SQU wanted to adopt the case method and teach by example. This was McDonough's forte. In a 2008 workshop he ran for the law school faculty, he recommended interactive teaching techniques, such as the Socratic and case methods, to encourage critical thinking.

He brought his laptop to class and displayed web pages for Amazon, Travelocity and eBay on the classroom big screen. Students analyzed common e-commerce problems, such as a botched online hotel reservation in which a minor keyed in the data and accidentally double-booked a hotel room. "It was a consumer case everyone could relate to," he says.

Students got to discuss the problem and to find the right place in the statute to address it. They would come to class with many solutions. McDonough graded on their ability to find all the issues and reason through the answers - the "on the other hand" method, which led one student to tell him he had too many hands.

In 2010, McDonough was given three months to develop a curriculum design for a new law school. The institution had to be accepted by the Ministry of Higher Education, it had to use best practices, and utilize U.S. law schools as models. Sohar University Law School started admitting last year. Its five-year program builds up English and research skills in the first year, followed by four years of an undergraduate law program. "I made a lot of friends. I learned a lot, too," he says. "It was really a two-way street."

Respecting differences

Fitchburg District Court Judge Elliott Zide accompanied McDonough to Oman when the latter served as project director for ABA Rule of Law Initiative for the Middle East and North Africa, prior to landing the professorship at SQU. Zide says McDonough has built a network not only of lawyers and judges, but of young people, and built an infrastructure of volunteer organizations, which were able to advocate for particular issues.

"Joe had a tremendous influence on their understanding of the American legal system and how it supports democratic values," Zide says. "Every person I met, including the ambassador and people at the embassy, had very high regard for Joe's ability to accomplish the mission set by the State Department when it funds rule of law initiatives in countries like Oman. People like him and respect him. He's intuitive in knowing how not to overreach. ... He doesn't put people off or challenge their existing ideas, except to challenge them to think in different ways."

"I've worked in other countries, and I did understand that you had to do your homework and understand the differences," McDonough says. "It's about respecting people. If you go in with a Lord Jim attitude, you are destined to fail."

The U.S. approach to the level of details of electronic commerce may be more advanced than Shariah law, but it's not necessarily superior, just different, and the differences aren't as wide as originally presumed. The key to bridging the two cultures is to understand how different cultures value things, he says.

Family comes first, and Islam's holy day is Friday, rather than Sunday. When a Westerner turns down a Sunday appointment in order to attend church, or demurs to spend time with family, "they completely understand, they respect you for valuing your family and religion, and things can move at a different pace. Being able to understand and be patient about their process is part of that respect," McDonough says.

He developed a network of contacts including some students, NGO workers, teachers, judges and sometimes, taxi drivers. "This is what I would do while working in U.S. political campaigns when I was younger. Some professionals in the field like polls and statistical research. I like people and to hear their stories, and to learn what they believe in and why." Sitting down with friends over tea "has given me more insight than I could ever get reading a book or doing research."

Rule of law

"Oman is a great opportunity because it's small. It has a very homogeneous society," says Zide. "It's very nationalistic. The primary value there is to be an Omani, then to be a Muslim. And to be a judge in Oman, you have to be both."

Omani judges take the bench at a relatively young age, holding the equivalent of a bachelor of law degree. (For advanced degrees, they must leave the country). "Up until 40 years ago, they had no formal [legal] education at all in anything commercial," McDonough says, "and then they found themselves on the bench, presented with the need to understand commerce and big contract work. That was not part of their educational experience, but most are very sincere and bright and they desire to learn."

The sultan of Oman, commercial leaders and investors had long called for judges to adopt the new globalized standards. Judges and older attorneys chose their profession based on their interest in Shariah, not specific categories of law, and judges sometimes didn't follow the reform statutes. Instead, they would rule in favor of the party they felt was more moral. Some expressed concern that they would have to abandon Shariah law and use Western law.

Religious and political leaders pushed back, stating that the standards had been vetted by Shariah experts and it was not the proper function of a judge to ignore statutes in favor of tradition, McDonough says. "To me, this went to the very heart of the rule of law."

To help the transition, McDonough and his team developed mini-bench books and checklists, and brought U.S. judges such as Zide and Associate Justice Sydney Hanlon, who now serves on the Massachusetts Appeals Court, to advise on their implementation.

Hanlon recalls a training visit in December 2010. "The issue of judge training is the same across cultural lines," she says. "What do you do if you're teaching people something they don't want to hear? Training is different if it's an update on a law everybody wants, or if you are introducing people to a whole new way of doing things."

While McDonough has a respect for cultural differences, Zide says, he doesn't flinch from asking direct questions, such as: When are we going to see more women judges in Oman? "It took Joe all three years I was there, just to be able to push that very direct question," says Zide.

At first, no one wanted to respond. It was a breakthrough when someone said "soon." Zide comments, "I've been around long enough to know that 'soon' can be an hour, next year or whenever Allah deems appropriate. Then you can get into a discussion of why there are not more women judges." He says later, "Joe's smart enough to know to engage in this in a way that doesn't offend."