At a recent trade conference, I was asked by other attorneys and several customs brokers whether our firm is often called upon to advise importers before they began the process of importing. And, while it is a significant part of our practice, I had to admit that it is not the major part.
Most clients want their attorneys to be there for them when there is trouble. However, importers are not always quick to call on counsel to help them prevent trouble. There may be many reasons for this including, it is simply how people think about lawyers. For example, many importers believe that the only time to call an attorney is when they need to contest a penalty or go to court. In addition, many importers believe that costs are a deterrent factor. Generally, it is presumed that an attorney’s fees will be high and that only an emergency will warrant considering seeking assistance from counsel.
This is unfortunate because those who practice mainly in the Customs and International Trade area of the law are in a unique position among lawyers. With the passage of the Customs Modernization Act, as part of the NAFTA legislation, it was established that seeking and following the advice of counsel, as recognized “Customs experts,” would, in effect, lay the foundation for an importer’s demonstrating to CBP that it acted with the requisite “reasonable care,” which is incumbent upon all importers as part of the legislation.
Establishing reasonable care is also important because it provides the importer with protection against possible penalties for committed errors.
Shrewd importers recognized the great benefits such protection would provide, both in monetary savings and in securing faster release of its cargo, and sought the assistance of counsel and other qualifies “customs experts” in ensuring that its classifications; value; country of origin marking; free trade and duty preference claims; etc., were correct and supportable. However, many importers still have not. Perhaps, this is the case for the reasons stated at the outset, i.e., the conventional perception of what lawyers do or expected high costs. This is also unfortunate, as those importers have, through their inaction, placed themselves at a disadvantage in regard to their competition.
While the disadvantages experienced by the importing community at large would be of concern to all those attorneys practicing in this field, it really hits home when it involves importers that a firm has serviced in regard to particular Trade issues but who are not also being provided with the type of preventative services required to keep these clients within the sphere of reasonable care.
Unfortunately, it is sometimes easier to alleviate importing clients’ preconceived notions of what an attorney does or when their services should be called upon then it is to change their concerns about legal costs. However, importers may be surprised to find that customs counsel have made great strides in addressing whatever reservations importers may have regarding seeking the kind of services they can provide to ensure that the importer actually saves money by getting the most benefits out of the advantageous application of the Customs laws, in addition to avoiding penalties and securing faster release of cargo. Attorneys are prepared to alter any misconceptions, especially regarding the costs involved, because, in fact, in many cases, the costs will be quite modest and the benefits will far exceed these costs.
Take it from one attorney who has practiced in this field for more than 30 years, there is no time like the present to save money and get faster cargo release. So, as self serving as it may sound, I encourage importers to reach out to one of the many qualified customs experts available and embrace the reasonable care requirement. It will make you more competitive and help you sleep better at night. The next step is up to you. Its not “who ya gonna call?” Its, “when are you gonna call?”
Who ya gonna call? – Customs Experts!
Who ya gonna call? – Customs Experts!
Simon, Gluck, Kane, LLP, an internationally recognized law firm concentrating in Customs and international trade law, has been a longstanding partner to Scarbrough International, Ltd.