An art attorney may be responsible for addressing a range of ethical considerations, such as artist rights, intellectual property, estate planning, fiduciary duties, contracts, copyright, trademark, taxes, global transactions, and more. These considerations, often referred to as “legal ethics”, can be written, unwritten, informal, or formal, and may be codified into rules governing the behavior of those in legal professions, including attorneys and judges.
The Significance of Legal Ethics in the Art Market
The principles of professional conduct are perhaps particularly important in the legal field where legal ethics establish, uphold, and safeguard the integrity, credibility, and fairness of the legal system as a whole. Since the dignity and reliability of the legal sphere is integral to its proper functioning, strong awareness and consideration of legal ethics across the profession is paramount.
Legal professionals in the art world have a unique set of art-specific ethics to consider when dealing with art-legal issues.When an attorney works with an artist or other participants in the art market, such as collectors, dealers, galleries, auction houses, and museums, they may encounter a set of complex issues that are unique to the legal-art world. Appropriate action in such matters may not be codified or found in mainstream legal ethics due to their specificity. Furthermore, the basis for appropriate actions in these matters may be ‘unwritten’.
Artists and other art market participants often seek legal advice, and it is the responsibility of an art attorney to act ethically in such cases. The art world can present complex legal questions, but an attorney who is well-versed in both art law and legal ethics can navigate the art market and legal realm confidently.
Legal Ethics in a Global Art Market
The art market is a rapidly evolving and complex global market. Therefore, it is vital that art attorneys maintain awareness, consideration, and communication of how varying countries handle art transactions. This requires maintaining familiarity with the nuances of different legal systems, as well as how international and transnational law may affect their clients.
Due to the global nature of the art market, it is also important for artists, art gallerists, and their respective attorneys to be aware of how legal ethics may be based on fundamentally different foundations and outlined by different codes, acts, or treaties. Legal ethics are largely established through institutional and governmental regulations. For example, in Australia, the Australian Bar Association’s Barristers’ Conduct Rules and the Australian Solicitors Conduct Rules apply, while in the US, the Model Rules of Professional Conduct, defined by the American Bar Association, are adopted by many state governments.
In the United States, Canada, Japan, and other democratic countries, attorneys typically have the dual role of representing their clients’ private interests and serving their public responsibility to uphold the fair administration of justice. While globalization has brought many benefits to both the art market and the legal sector, it also holds the potential for conflicts to arise between distinct ethical practices for artists and art attorneys.
In addition to differing legal ethics, art lawyers should also be informed about the variations in art law and regulation on a global scale. The country where an artwork is created, sold, or produced can significantly impact an artist’s legal rights. Some artists may not realize that creating, exhibiting, or selling artwork in a different country or to a collector in another nation can have many legal implications. The nuances of these laws can be significant, even if the countries are both common law or both civil law. Attorneys must be diligent, knowledgeable, and aware of these issues and nuances and be able to effectively inform their artist clients.
Provenance
Attorneys must also consider if a specific artwork is subject to any legal claims by a foreign government or if the artist’s work could be stolen, looted, or even subject to forgery. Art law generally aims to protect art and cultural property, recognizing it as a means of preserving human dignity and the rights of the people who created it. This significance is recognized by organizations such as the United Nations Educational, Scientific and Cultural Organization (UNESCO) and many other institutions around the world. Whether a case in art law involves an individual or a culture, it can have implications for humanity, human rights, and the world at large.
Exporting and Importing
The importance of these considerations becomes particularly critical in the import and export of art. For example, the owner and associated dealers of a Baroque artwork valued at around $2 million faced intense legal scrutiny for potentially fraudulent illegal export of a painting in 2019. The painting, by one of Italy’s most famous female painters, Artemisia Gentileschi, depicting “Caritas romana” (Catholic Charity), was recovered by the Italian Carabinieri Cultural Heritage Protection Squad. The work was being searched for under the premise that the 2019 export took place illegally by the exporters concealing the true value and author of the work. Consulting with an attorney well-versed in art law can help avoid transactions and costly mistakes such as this.