Law Firm General Counsel Roundtable (May 1, 2017) Resources Related Collaboration with ABA ITILS
Professor Laurel S. Terry Penn State University, Dickinson Law [email protected]
Professor Carole Silver Northwestern Pritzker School of Law [email protected]
I. ABOUT ITILS
1. ABA Standing Committee on International Trade in Legal Services (ITILS) Webpage 2. Example of an Agenda from one of ITILS’ Monthly Conference Calls (Oct. 2016) 3. 2016-17 Roster for the ABA ITILS Standing Committee 4. 2016 ABA Resolution and Report creating the ABA ITILS Standing Committee
II. EXAMPLES OF ITILS’ ACTIVITIES
5. Providing Information to the U.S. Government a) Regular feedback to the Office of the USTR regarding ongoing trade negotiations (see sample agenda) b) Providing Contributions to the annual report about barriers to trade in other countries c) Ock Hyun-ju, Foreign envoys protest limits on foreign law firms, The Korean Herald (2016-01-18) d) Participating in the U.S. Department of Commerce Meeting on Measuring and Enhancing Services Trade Data (i.e., how to “count” imports and exports of legal services) e) Facilitating the 2006 Legal Services Annex-related U.S.-Australia FTA Meeting
6. Providing Information to State Regulators (of lawyers and legal services) a) Conference of Chief Justices, Resolution #2 (2015) Encouraging States to Adopt Explicit Policies Regarding [Limited] Foreign Lawyer Admission & “Association” Rights http://www.americanbar.org/content/dam/aba/uncategorized/GAO/2015feb4_res2inboundlawyering.pdf b) Terry, Map Showing Jurisdictions with Rules Regarding Foreign Lawyer Practice Rules, http://tinyurl.com/laurelterrymap [The map is regularly circulated to the Conference of Chief Justices] c) Excerpts from the ABA ITILS State Toolkit d) Facilitating state participation in the surveys by the International Bar Assoc. (see samples)
7. Interacting with Lawyers in Other Countries Regarding Trade Negotiations a) CCBE T-TIP Requests to the ABA and the Conference of Chief Justices b) Nov. 19, 2014 Letter from ABA President William Hubbard to CCBE President Aldo Bulgarelli Regarding the CCBE’s Requests regarding the T-TIP Trade Negotiations
8. Facilitating “Summits” between US Lawyers and Regulators & those in Other Countries a) 2016 Roundtable: Going Global: Association between Local and Foreign Lawyers and Law Firms b) Agenda from the EU-US Legal Services Roundtable (2014) c) Agenda from the Trans-Pacific Bar Leaders’ Summit (2013) d) Agenda from the U.S.-Australia Legal Services Meeting (2006) e) Other Summits (includes the 2nd Asian Summit on Legal Services for Bar Leaders (2007); 4th U.S.-E.U. Summit; and law review excerpts summarizing the ABA’s “summits”
Terry-Silver Materials (5-2017), p. 1 III. AREAS WHERE ITILS AND THE GENERAL COUNSEL ROUNDTABLE MIGHT COLLABORATE
9. Excerpts from the ITILS Roster (showing the large number of liaisons and special advisors - the GC Roundtable could join this group)
10. Carole Silver, What We Know and Need to Know about Global Lawyer Regulation, 67 S. Carolina L. Rev. 461 (2016) (full article distributed separately)
11. Aug. 2016 ABA Annual Meeting Materials Related for the “Association” Roundtable, (ITILS Chair & KL Gates Partner David Tang thought the GC Roundtable might want to collaborate on the Association issue. See www.tinyurl.com/laurelterryslides.)
12. Map sent by the CCBE to the ABA ITILS Showing Many US States that do not Allow “Association” (using data provided by the states themselves to the IBA)
13. Laurel Terry’s “On the Ground” Association Map (which was prepared as a result of collaboration that arose from the Jan. 2015 GC Roundtable session in Atlanta that she attended); see https://tinyurl.com/laurelterrymap2
Terry-Silver Materials (5-2017), p. 2 4/19/2017 Standing Committee on International Trade in Legal Services
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Standing Committee on International Trade in Legal Services
International Trade in Legal Services
About the Committee Events
The Standing Committee monitors ongoing trade negotiations and Upcoming Events: other initiatives that impact trade in legal services; informs and 2017 Section of International Law educates ABA members and state regulators about legal services Spring Meeting trade issues and their implications for the regulation and practice of April 2529, 2017 law in the U.S. and abroad; and regularly communicates with Office Washington, D.C. of the U.S. Trade Representative and the Department of Commerce regarding legal services. 2017 ABA Annual Meeting August 815, 2017 More on the Standing Committee New York, NY Featured Resources ***** 2016 National Trade Estimate Report on Foreign Trade Past Events: Barriers. An annual report issued by the Office of the U.S. Trade Representative that highlights significant foreign barriers to U.S. 2016 Annual Meeting Program exports. The report includes sections on legal services market access Going Global: Association between Local in selected countries. and Foreign Lawyers and Law Firms Conference of Chief Justices Resolution. (January 28, 2015) This event took place on Saturday, August 6, “In Support of Regulations Permitting Limited Practice by Foreign 2016. Click here to view the materials. Lawyers in the United States to Address Issues Arising from Legal Market Globalization and CrossBorder Legal Practice.” 2015 ABA Annual Meeting: CLE Program
Admitting ForeignTrained Lawyers in States Other than It’s a Small World After All: New York: Why It Matters. Prof. Laurel Terry, The Bar Examiner, A Global Tour of Transnational December 2014. Regulatory Changes Affecting You!
Testing ForeignTrained Applicants in a New York State of This event took place on Friday, July 31. Click Mind. Diane Bosse, The Bar Examiner, December 2014. on the link below to view the materials. Click here to view the materials. International Bar Association Global CrossBorder Legal Services Report. The IBA has created a database of information ABA Policy about the regulation of trade in legal services. This will provide individual lawyers and law firms with information to assist them in February 2016 – Amendment of Rule 5.5 representing their clients internationally and developing their of the ABA Model Rules of Professional businesses. It will also assist bar associations, governments and Conduct and the ABA Model Rule for other institutions that are looking to change the way they regulate Registration of InHouse Counsel. Model practice by foreign lawyers. Rules amended to include language specifying International Trade in Legal Services and Professional that the court of highest appellate jurisdiction Regulation: A Framework for State Bars Based on the may, in its discretion, allow foreign inhouse Georgia Experience (State Toolkit). This white paper recounts lawyers who do not meet the ABA definition of the experience of the State Bar of Georgia and the Georgia Supreme foreign lawyer because they cannot be Court in adopting a regulatory regime to confront issues arising from “members of the bar” to be able to practice as globalization, crossborder practice and lawyer mobility. Georgia has inhouse counsel in the U.S. and to be so assumed a leadership position in adopting rules that specifically registered. address and regulate some of the various means by which lawyers August 2013 – International Legal from foreign countries may seek to perform services in that state. Regulatory Information Exchange. Urges The Georgia experience provides lessons on how other state bars the highest courts of states and lawyer can generate a consensus to move forward on these issues. regulatory authorities to coordinate with their foreign regulatory counterparts and enter into Terry-Silver Materials (5-2017), p. 3 http://www.americanbar.org/advocacy/governmental_legislative_work/priorities_policy/promoting_international_rule_law/internationaltradetf.html 1/9 4/19/2017 Standing Committee on International Trade in Legal Services
Conference of Chief Justices Resolution (January 29, 2014) voluntary arrangements to facilitate the encouraging its members to consider the “International Trade in exchange of relevant information, consistent Legal Services and Professional Regulation: A Framework for State with the jurisdictions’ rules, and adopts the Bars Based on the Georgia Experience” as a guide to address issues Guidelines for an International Regulatory arising from legal market globalization and crossborder legal Information Exchange, dated August 2013. practice. 13A104
February 2013 – Model Rule on Pro Hac ABA Communications Vice Admission. Model Rule amended to provide judges with guidance about whether April 11, 2016 – ABA comments on amendments to Korea’s to grant limited and temporary practice Foreign Legal Consultant Act and the subsequent amendments to authority to foreign lawyers to appear in U.S. the Enforcement Decree and Enforcement Rules proclaimed on courts. 13M107C March 2, 2016 by the Ministry of Justice. February 2013 – Model Rule for October 28, 2015 – ABA comments to the Office of the U.S. Trade Registration of InHouse Counsel. Model Representative in response to a request for comments to compile Rule amended to permit a foreign lawyer to the National Trade Estimate Report on Foreign Trade Barriers. The serve as inhouse counsel, but with the added comments focus on trade barriers to the provision of legal services requirement that the foreign lawyer may not and highlight existing barriers in two countries of particular advise on U.S. law except on the basis of importance to the U.S. legal profession – South Korea and India – advice from a lawyer who is duly licensed and and urge USTR to make legal services a priority in all ongoing trade authorized to provide such advice. 13M107B dialogue and negotiations.
May 7, 2015 – ABA comments in response to the proposed draft See more amendment to South Korea’s Foreign Legal Consultant Act (“draft Related ABA Publications amendment”) issued by the Ministry of Justice on March 27, 2015. Guide to Bar Admission March 10, 2015 – ABA letter in regard to the ongoing initiative to develop legislation necessary to implement the third stage of the Requirements legal services provisions in the Free Trade Agreement between the The Comprehensive Guide Republic of Korea and the United States (KoreaUS FTA). sets out the rules and November 19, 2014 Letter from ABA President William Hubbard to CCBE President Aldo Bulgarelli regarding interests of the EU and practices of all U.S. US legal professions in the Transatlantic Trade and Investment jurisdictions for admission to the bar by Partnership negotiations. examination and on motion. Available as a March 27, 2013 – ABA submits a written statement to the International Trade Subcommittee of the House Ways and Means free download by clicking on the title and for Committee for a hearing on “U.S.India Trade: Opportunities and purchase in the ABA Webstore. Challenges” highlighting the importance of legal services to the bilateral economic relationship and outlining the current restrictions International Bar against U.S. law firms. Admissions See more NEWS An overview of the bar admission process in more FEBRUARY 2017 than 50 countries, including Foreign Law Firms to be allowed in Indian SEZs? India Briefing issues of language, educational requirements, 2/10/17 character and fitness, challenges, reiprocity, In another sign that the government is keen to allow to foreign law and where to find more information. firms and accountants in India, the government on January 3 amended the Special Economic Zone (SEZ) rules which may make U.S. Legal Studies legal and accountancy services from foreign companies possible in SEZs. An unofficial guide for
Is Big Law Finally Ready For TransAtlantic Consolidation? foreign lawyers considering The American Lawyer the study of law in the 2/9/17 United States, it includes The consolidation of the legal market across the Atlantic has been talked up for decades. The recent marriage of Atlantabased factors that prospective students should Sutherland Asbill & Brennan and U.K. firm Eversheds, and the news consider in deciding whether or not to study that Norton Rose Fulbright is in talks with Chadbourne & Parke—a deal that would finally give the global giant the New York presence it in the United States, the application process, has long craved—has brought the issue back into sharp focus. and the U.S. law school experience. Indian firms ‘blocking’ free legal market plans The Law Society Gazette Guide to Foreign Law Firms 2/9/17 The ABA Guide to Foreign Law Firms, Fifth Plans to free up India’s legal market are being ‘blocked’ by law firms unwilling to give up their monopoly despite government efforts to Edition, is designed to help lawyers in Terry-Silver Materials (5-2017), p. 4 http://www.americanbar.org/advocacy/governmental_legislative_work/priorities_policy/promoting_international_rule_law/internationaltradetf.html 2/9 ABA Standing Committee on International Trade in Legal Services October 2016 Conference Call
Date/Time: October 11, 2016 Dial‐In: 1‐866‐646‐6488 10:00‐11:00am EDT Passcode: 484 964 7205 #
I. UPDATES AND ADMINISTRATIVE MATTERS
A. Welcome and introduction of new members B. Liaison Reports C. ITAC Report
II. DISCUSSION ITEMS AND ONGOING PROJECTS
A. Report from the 2016 Annual Meeting – the ABA House of Delegates adopted a resolution to transition the task force to a standing committee.
B. Country updates 1. India 2. South Korea
C. Ongoing negotiations and pending agreements 1. Trans Pacific Partnership Agreement (TPP) 2. Transatlantic Trade and Investment Partnership (TTIP) 3. Trade in Services Agreement (TiSA)
D. Given the issues with negotiation and implementation of trade agreements, how should legal services market access be advanced going forward and what is the ABA’s role?
E. Impact of Brexit on U.S. lawyers and law firms
F. Potential initiatives for 2016‐17
III. INFORMATIONAL ITEMS
A. General information on future events: 1. Section of International Law 2016 Fall Meeting – October 18‐22, 2016, Tokyo. 2. Coalition of Service Industries Global Services Summit 2016 – for more information or to register, go to https://servicescoalition.org/about‐csi/annual‐global‐services‐summit. 3. Standing Committee Meeting at 2017 ABA Midyear Meeting – tentatively scheduled for Saturday, February 4th at 10:00am EST. Location TBD.
Terry-Silver Materials (5-2017), p. 5 AMERICAN BAR ASSOCIATION Standing Committee on International Trade in Legal Services 2016-2017 Roster
MEMBERS
David K.Y. Tang, Chair Paula Hinton K&L Gates Winston & Strawn 925 Fourth Ave., Ste. 2900 1111 Louisiana Street, 25thFlr Seattle, WA 98104-1158 Houston, TX 77002 (206) 370-7617 (713) 651-2663 [email protected] [email protected]
Hon. Shirley Abrahamson W. Anthony (Tony) Jenkins Justice Dickinson Wright PLLC Supreme Court of Wisconsin Ste. 4000 16 East State Capitol 500 Woodward Ave. P.O. Box 1688 Detroit, MI 48226-5403 Madison, WI 53701-1688 (313) 223-3156 (608) 266-1885 [email protected] [email protected] Glenn Lau-Kee Jonathan J. Cole Kee & Lau - Kee PLLC Baker Donelson Suite 1 Ste. 800 354 Broome Street 211 Commerce St. New York, NY 10013-5458 Nashville, TN 37201 (212) 625-0300 ext. 115 (615) 726-7335 [email protected] [email protected] James C. Nobles Jr. Frank Gao James Nobles LLC McAndrews Held & Malloy Ltd Ste. 610 34th Floor 1266 W Paces Ferry Rd. NW 500 West Madison Street Atlanta, GA 30327 Chicago, IL 60093 (404) 875-3600 (312) 775-8000 [email protected] [email protected]
Terry-Silver Materials (5-2017), p. 6 Steven M. Richman Carole Silver Clark Hill PLC Northwestern University School of Law Ste. 102 375 East Chicago Avenue 210 Carnegie Center Chicago, IL 60611-3069 Princeton, NJ 8540 (312) 503-1772 (609) 785-2911 [email protected] [email protected] John S. Skilton Anna Williams Shavers Perkins Coie LLP Cline Williams Professor of Citizenship Law Ste 201 254N Law College 1 E Main St University of Nebraska, Lincoln, NE 68583 Madison, WI 53703-5118 (402) 472-2194 (608) 663-7474 [email protected] [email protected]
LIAISONS AND ADVISORS
Timothy Brightbill Don DeAmicis Wiley Rein & Fielding LLP Georgetown University Law Center 1776 K St NW 600 New Jersey Avenue N.W. Washington, DC 20006-2304 Washington, DC 20001 (202) 719-3138 [email protected] [email protected] Rew Goodenow Paul Carlin Parsons Behle & Latimer Executive Director 50 West Liberty Street Maryland State Bar Association Suite 500 520 West Fayette Street Reno, NV 89501 Baltimore, MD 21201 (775) 323-1601 (410) 685-7878 [email protected] [email protected] Ben Greer Yee Wah Chin Alston & Bird Ingram Uzek Gainen Caroll & One Atlantic Center Bertolotti 1201 West Peachtree Street 250 Park Avenue Suite 4900 New York, NY 10177 Atlanta, GA 30309-3424 (202) 213-3143 [email protected] [email protected]
Terry-Silver Materials (5-2017), p. 7 Glenn Hendrix Erica Moeser Arnall Golden Gregory LLP President 171 17th Street, NW National Conference of Bar Examiners Suite 2100 402 W. Wilson Street Atlanta, GA 30363-1031 Madison, WI 53703-3614 (404) 873-8692 (608) 280-8550 [email protected] [email protected]
Bernice Leber Andreea Morrison Arent Fox LLP Assistant General Counsel 1675 Broadway State Bar of Georgia New York, NY 10019-5820 104 Marietta St. NW, Suite 100 (212) 484-3930 Atlanta, GA 30303 [email protected] (404) 527-8720 [email protected] Robert E. Lutz II Paul E. Treusch Distinguished Darrell Mottley Professor of International Legal Studies Banner & Witcoff Ltd Southwestern Law School Suite 1200 3050 Wilshire Boulevard 1100 13th St., NW Los Angeles, CA 90010 Washington, DC 20005-4051 (213) 738-6758 (202) 824-3142 [email protected] [email protected]
Judge Gregory E. Mize Edward M. Mullins Judicial Fellow Astigarraga Davis National Center for State Courts 701 Brickell Ave., 16th Flr. Center House Miami, FL 33131-2813 111 2nd Street, NE (305) 372-8282 ext. 229 Washington D.C. 20002 [email protected] (703) 841-6932 [email protected] Carol Needham Saint Louis University School of Law Jenny Mittelman 3700 Lindell Blvd Deputy General Counsel Saint Louis, MO 63108-3478 State Bar of Georgia (314) 977-7104 104 Marietta St. NW, Suite 100 [email protected] Atlanta, GA 30303 (404) 527-8720 Ken Reisenfeld [email protected] BakerHostetler 1050 Connecticut Ave., NW Ste 1100 Washington, DC 20036-5318 (202) 861-1545 [email protected]
Terry-Silver Materials (5-2017), p. 8 Hon. Delissa Ridgway Thomas Wilkinson, Jr. U.S. Court of International Trade Cozen O’Connor 1 Federal Plaza 1650 Market St New York, NY 10278 One Liberty Pl Ste 2800 (212) 264-5480 Philadelphia, PA 19103-3572 [email protected] (215) 665-3737 [email protected] William P. Smith III 128 Mt. Vernon Drive Erik Wulff Decatur, GA 30030 DLA Piper (404) 373-1079 500 8th St NW [email protected] Washington, DC 20004-2131 Steven R. Smith (202) 799-4271 California Western School of Law [email protected] 225 Cedar Street Stephen P. Younger San Diego, CA 92101-3046 Patterson Belknap Webb & Tyler (619) 602-5950 1133 Avenue of the Americas [email protected] New York, NY 10036-6731 (212) 336-2685 Laurel S. Terry [email protected] Penn State – Dickinson Law 150 S. College Street STAFF Carlisle, PA 17013-2861 (717) 240-5262 Kristi Gaines [email protected] Senior Legislative Counsel American Bar Association Gene Theroux 1050 Connecticut Ave., NW 37893 Long Lane Ste. 400 Villa Collina Washington, DC 20036 Lovettsville, VA 20180-1701 (202) 662-1763 (202) 549-3500 [email protected] [email protected] Ellyn Rosen The Hon. Gerald VandeWalle Deputy Director Chief Justice Center for Professional Responsibility Supreme Court of North Dakota American Bar Association 600 E. Boulevard Ave., Dept. 180 (312) 988-5311 Bismarck, ND 58505-0530 [email protected] (701) 328-2221 [email protected]
Terry-Silver Materials (5-2017), p. 9 AMERICAN BAR ASSOCIATION 11-7 ADOPTED BY THE HOUSE OF DELEGATES AUGUST 8-9, 2016
SPONSORS: David K. . Tang (principal sponsor), Darrell Mottley, Rew R. Goodenow, Glenn Lau‐Kee, Don DeAmicis, Hon. Delissa A. Ridgway, Kenneth B. Reisenfeld, Edward Mullins, Robert E. Lut , Carole Silver, Timothy Brightbill, Glenn P. Hendrix, Stephen P. ounger, Thomas G. Wilkinson, r., Laurel S. Terry, Erik Wulff, Erica Moeser, Eugene Theroux, Hon. Gerald W. andeWalle, William P. Smith.
PROPOSAL: Amends 31.7 of the Bylaws to create a Standing Committee on International Trade in Legal Services
Amends . o t e B la s to read as ollo s:
Designation J risdiction and S ecial Ten res o Standing Committees. The designation, urisdiction and special tenures of Standing Committees are as follows:
1 Standing Committee on International Trade in Legal Services. The Standing Committee 2 on International Trade in Legal Services, which consists of twelve members, shall: 1) monitor 3 the negotiations of international trade agreements that involve the United States and the 4 provision of legal services 2) coordinate the Association’s positions on issues relating to the 5 access by U.S. lawyers to the legal services markets of other countries and access by lawyers 6 from foreign urisdictions to the U.S. legal services market 3) advise the U.S. Government of 7 existing Association policies relating to these issues and of the Association’s position on 8 relevant aspects of the negotiations 4) develop policy recommendations for adoption by the 9 House of Delegates 5) assist other Association entities in the implementation of current 10 Association policies relating to these issues and 6) educate and engage in outreach to 11 interested internal and external entities relating to the status of international trade agreement 12 negotiations relevant to legal services and provide those entities with a mechanism to provide 13 their input for consideration and study.
(Legislative Draft – Additions underlined deletions struck through)
Terry-Silver Materials (5-2017), p. 10 11-7
REPORT
This purpose of this amendment is to establish a Standing Committee on International Trade in Legal Services. The effect of the amendment would be to transition the existing Task Force on International Trade in Legal Services ( Task Force ), created by the Board of Governors in 2003, into a permanent entity.
The Task Force has been reviewed by the ABA Standing Committee on Scope and Correlation of Work ( Scope ) numerous times during its existence. The Scope Committee has consistently found that the Task Force is active and not engaging in a function that unnecessarily overlaps with or duplicates the activities of other ABA entities and has commended the Task Force for its excellent work. The Scope Committee included the following in its response to the Task Force after its most recent review:
Also during our review, Scope concluded the Task Force should consider changing its structure to a committee of the Association, such as, a standing or special committee. Scope believes such a change in structure should be considered, for the following reasons: the issues associated with globalization such as advising the U.S. Trade Representative, promoting American law and use of American lawyers abroad, and dealing with the issues that arise from foreign lawyers practicing in the United States are not going away in the foreseeable future; and a task force is created by the ABA Board of Governors to perform a short term assignment. (Letter dated anuary 12, 2015 from Scope Committee Chair Richard A. Soden to Task Force Chair David Tang).
For these reasons, and for the ongoing importance of these issues to the ABA and the U.S. legal profession, we urge adoption of this resolution to transition the Task Force to a Standing Committee.
History of the Task Force
The Task Force on GATT egotiations Regarding Trade and Services Applicable to the Legal Profession (later referred to as the Task Force on GATS Legal Services egotiations) was created by the Board of Governors in 2003, to be composed of six presidentially‐appointed members, four of whom were to be designated representatives from the following ABA entities: Section of Administrative Law and Regulatory Practice Section of Business Law Section of International Law and Section of Litigation. The other two positions were for at‐large members. In August 2003, the Board increased the si e of the Task Force from six members to eight members, in order to to ensure that appropriate diversity is created and maintained among the current entity membership.
In February 2007, the Board approved changing the name to the Task Force on International Trade in Legal Services (ITILS), to more accurately reflect the range of issues and initiatives that the Task Force was being asked to address in relation to multilateral and bilateral trade 1
Terry-Silver Materials (5-2017), p. 11 11-7 negotiations that impact the U.S. legal profession. In une 2009, the Board approved then President‐Elect Carolyn Lamm s re uest to revise the urisdictional statement of the Task Force to increase its membership from eight members to twelve members. The additional seats were designated for the president of the ational Conference of Bar Presidents, a liaison to the Commission on Ethics 20/20, and two state bar association presidents. This constitutes the current structure of the Task Force. In addition, because of the global professional ethics and regulatory issues inherent in the matters under study by the Task Force, the Center for Professional Responsibility has been and continues to be an essential partner in the work of the Task Force.
The primary purpose of the Task Force has been to: monitor international trade negotiations and other initiatives that impact trade in legal services educate and engage in outreach to interested entities relating to the status of international trade agreement negotiations and provide those entities with a mechanism to provide their input to the Association for consideration and study and to serve a coordinating function for ABA entities on issues and activities related to trade in legal services and inbound/outbound market access.
International Trade in Legal Services
Trade negotiations impacting legal services have been and continue to be engaged in both bilateral and multilateral context. For example, the General Agreement on Trade in Services (GATS) is the first multilateral, legally enforceable agreement covering trade and investment in services. All members of the WTO are signatories to the GATS framework agreement and many have scheduled GATS commitments in various service sectors, including legal services. These negotiations involve two important elements: outbound market access (what kind of access U.S. lawyers may have to overseas markets) and inbound privileges (what kind of access foreign lawyers will have to the U.S. market).
In addition, negotiations on trade in legal services are also being increasingly pursued through other means and mechanisms. The U.S. now routinely includes trade in services, including legal services, in the negotiation of bilateral and multilateral Free Trade Agreements. The recently concluded Trans Pacific Partnership Agreement contains a professional services annex with a specific section on legal services that obligates governments who are party to the agreement to encourage their relevant regulatory bodies to consider a number of issues if they regulate or seek to regulate foreign lawyers and transnational legal practice. In addition, discussions on legal services are currently taking place among U.S. negotiators and their foreign counterparts as a part of the Transatlantic Trade and Investment Partnership negotiations and the Trade in Services Agreement negotiations.
In addition, under some existing FTAs, there are provisions re uiring governments to encourage and facilitate private industry dialogue on legal services market access and ualification issues. Lastly, independent of governmental trade negotiations, several foreign bars have expressed an interest in engaging in direct bar‐to‐bar discussions on these issues. For each of these
Terry-Silver Materials (5-2017), p. 12 11-7 situations, the Task Force has specific examples in which it has undertaken initiatives or been asked to provide assistance by U.S. government trade negotiators.
Within the ABA there are several entities that have significant interests in the substance of these issues and the process involved in the U.S. making commitments on legal services. The Sections of International Law, Business Law and Litigation, for example, have strong interests in outbound access for U.S. lawyers and law firms seeking to provide services to clients in foreign urisdictions. The Section of Legal Education and Admissions to the Bar and the Center for Professional Responsibility have strong interests in ensuring that the federal government does not undertake actions that improperly intrude on the primary authority of the state supreme courts to regulate the ualifications, admissions, and discipline of U.S. lawyers and foreign lawyers who are permitted to practice in the manner set forth in state court rules and regulations.
The multi‐entity representation provided by the structure of the Task Force has made it uni uely ualified to evaluate issues, share information, and solicit input from all of the interested groups in one forum. Prior to its creation, no single ABA entity existed to coordinate internal activities related to these issues. In addition to facilitating internal coordination on these issues, the Task Force also maintains active relationships with the Conference of Chief ustices, ational Conference of Bar Presidents, ational Conference of Bar Examiners, ational Association of Bar Executives, and ational Organi ation of Bar Counsel. Representatives of these organi ations regularly participate in meetings, conference calls and other activities. In several instances the Task Force has have collaborated with representatives of those entities to distribute information about pending services negotiation proposals and to facilitate a coordinated response to the relevant government agencies. The continuity in these relationships is important given the complexity and sensitivity of these issues.
Im ortance o t is Iss e to U.S. Legal Pro ession and ABA Mem ers
The ongoing globali ation of commercial activity makes it imperative for U.S. lawyers and law firms to be able to provide advice and assistance to their clients wherever the clients need that assistance. The U.S. is the largest legal services market and the largest exporter of legal services in the world, with more than 9 billion in exports annually. ABA members, both individuals and law firms, have substantial interest in assuring access to overseas markets. However, many countries have regulations or trade barriers in place that prevent or put onerous restrictions on U.S. firms operations within their borders.
Through the Task Force, the ABA is engaged in activities to promote the elimination of these legal services market access barriers around the world, including through implementation of ABA policy calling for the U.S. government to negotiate access for U.S. lawyers in foreign urisdictions similar to what is offered under the ABA Model Foreign Legal Consultant Rule. This work demonstrates to U.S. lawyer and law firm members (and potential members) that the ABA is working on their behalf to improve their ability to establish offices and structure relationships 3
Terry-Silver Materials (5-2017), p. 13 11-7 to most effectively serve their clients in foreign markets. In addition, the Task Force serves as a forum to develop and communicate views of ABA membership to governmental entities responsible for negotiating issues relevant to regulation of the legal profession and market access for U.S. firms. The Task Force also provides a valuable service through monitoring and informing members, ABA entities and affiliated entities of ongoing developments in international trade negotiations that impact legal services.
Many of the Task Force’s activities also serve an educational function, informing ABA members on rules of practice in foreign countries and educating foreign lawyers on rules of practice in U.S. urisdictions. In addition, the Task Force has actively worked to promote implementation of ABA policies and has offered materials and assistance to states to consider adopting ABA model rules and policies on inbound foreign lawyers. Adoption of these policies will help state bars and lawyer regulatory systems deal more effectively with challenges presented by the increasing globali ation of the legal profession.
The adoption of this amendment to transition the existing Task Force to a Standing Committee will serve to recogni e the value that a permanent entity brings to this critical work and will ensure that the ABA is able to continue to effectively represent the interests of its members in both inbound and outbound legal services market access.
Respectfully Submitted,
David K. . Tang Darrell Mottley Rew R. Goodenow Glenn Lau‐Kee Don DeAmicis Hon. Delissa A. Ridgway Kenneth B. Reisenfeld Edward Mullins Robert E. Lut Carole Silver Timothy Brightbill Glenn P. Hendrix Stephen P. ounger Thomas G. Wilkinson, r. Laurel S. Terry Erik Wulff Erica Moeser Eugene Theroux Hon. Gerald W. andeWalle William P. Smith
Terry-Silver Materials (5-2017), p. 14 Law Firm General Counsel Roundtable (May 1, 2017) Resources Related Collaboration with ABA ITILS
Professor Laurel S. Terry Penn State University, Dickinson Law [email protected]
Professor Carole Silver Northwestern Pritzker School of Law [email protected]
II. EXAMPLES OF ITILS’ ACTIVITIES
. Materials Related to Providing Information to the U.S. Government a) Regular feedback to the Office of the USTR regarding ongoing trade negotiations (see sample Item #2, a sample agenda) b) Providing Contributions to the annual report about barriers to trade in other countries c) Ock Hyun-ju, Foreign envoys protest limits on foreign law firms, The Korean Herald 2016-01-18) d) Participating in the U.S. Department of Commerce Meeting on Measuring and Enhancing Services Trade Data (i.e., how to “count” imports and exports of legal services) e) Facilitating the 2006 Legal Services Annex-related U.S.-Australia FTA Meeting
Terry-Silver Materials (5-2017), p. 15 Terry-Silver Materials (5-2017), p. 16 2017 National Trade Estimate Report on FOREIGN TRADE BARRIERS
Office of the United States Trade Representative
Terry-Silver Materials (5-2017), p. 17 Investment Restrictions
China seeks to protect many domestic industries through a restrictive investment regime, which adversely affects foreign investors in services sectors, agriculture, extractive industries and manufacturing sectors. In a recent survey, the OECD ranked investment restrictiveness in China at over five times the average of the 58 G20 and OECD members surveyed. In line with its own plans for domestic reform, including as expressed through the November 2013 Third Plenum Decision, China continues to consider improvements to its foreign investment regime, including through the use of a “negative list” as a mechanism to govern access for foreign investors (meaning that all investments are permitted except for those explicitly excluded). However, many aspects of China’s current investment regime, including lack of substantial liberalization, maintenance of a case-by-case administrative approval system and the potential for a new and overly broad national security review, continue to cause foreign investors great concern. In addition, foreign enterprises report that Chinese government officials may condition investment approval on a requirement that a foreign enterprise transfer technology, conduct research and development in China, satisfy performance requirements relating to exportation or the use of local content or make valuable, deal- specific commercial concessions.
In part to address these investment restrictions, the United States has engaged in negotiations with China to conclude a high-standard bilateral investment treaty (BIT). In negotiations with the United States, China committed for the first time to negotiate a BIT that would provide national treatment at all phases of investment, including market access (i.e., the “pre-establishment” phase of investment), and would employ a negative list approach in identifying exceptions.
The United States has repeatedly raised concerns with China about its restrictive investment regime. To date, this sustained bilateral engagement has not led to a significant relaxation of China’s investment restrictions, nor has it appeared to curtail ad hoc actions by Chinese government officials.
Trade Remedies
China’s regulatory authorities in some instances seem to be pursuing antidumping and countervailing duty investigations and imposing duties for the purpose of striking back at trading partners that have exercised their WTO rights against China, even when necessary legal and factual support for the duties is absent. The U.S. response has been the filing and prosecution of three WTO disputes. The decisions reached by the WTO in those three disputes confirm that China failed to abide by WTO disciplines when imposing the duties at issue.
SERVICES BARRIERS
Overview
As in past years, Chinese regulators continued to use discriminatory regulatory processes, informal bans on entry and expansion, overly burdensome licensing and operating requirements, and other means to frustrate the efforts of U.S. suppliers of services, including banking services, insurance services, telecommunication services, Internet-related services (including cloud services), audiovisual services, express delivery services, legal services and other services to achieve their full market potential in China. Some sectors, including electronic payment services and theatrical film distribution, have been the subject of WTO dispute settlement. While China declared an intent to further liberalize a number of services sectors in its Third Plenum Decision, no meaningful concrete steps have been taken.
FOREIGN TRADE BARRIERS -86-
Terry-Silver Materials (5-2017), p. 18 discouraged U.S. investment. In addition, China’s restrictions on services associated with television, radio and film production and distribution prohibit or greatly limit participation by foreign suppliers.
Express Delivery Services
The United States continues to raise concerns with China regarding implementation of the 2009 Postal Law and related regulations. China has blocked foreign companies’ access to the document segment of China’s domestic express delivery market, and it does not have a strong track record of providing non- discriminatory treatment in awarding foreign companies business permits for access to the package segment of China’s domestic express delivery market, where it also applies overly burdensome regulatory approaches.
Legal Services
China has issued measures intended to implement the legal services commitments that it made upon joining the WTO. However, these measures restrict the types of legal services that can be provided by foreign law firms, including through a prohibition on foreign law firms hiring lawyers qualified to practice Chinese law, and impose lengthy delays for the establishment of new offices.
BARRIERS TO DIGITAL TRADE
Overview
China’s Internet regulatory regime is restrictive and non-transparent, affecting a broad range of commercial services activities conducted via the Internet. In addition, China’s treatment of foreign companies seeking to participate in the development of cloud computing services, including computer data and storage services provided over the Internet, raises concerns.
Cloud Computing Restrictions
In major markets, including China, cloud computing services are typically offered through commercial presence in one of two ways: as an integrated service in which the owner and operator of a telecommunication network also offers computing services, including data storage and processing function, over that network; or as a stand-alone computer service, with the customer responsible for arranging connectivity to the computing service site. Although China’s GATS commitments cover both options, neither is currently open to foreign-invested companies.
China is seeking to similarly restrict the ability of foreign enterprises to offer cloud computing services into China on a cross-border basis. Late in 2016, China’s regulator issued a draft notice on regulating cloud computing, elements of which also appeared in a recently issued measure entitled “On Cleaning up and Regulating Internet Access Services Market” that prohibits Chinese telecommunication operators from offering consumers leased lines or virtual private network connections reach to overseas data centers. The United States has raised this issue with China and continues to evaluate it in the context of China’s WTO GATS obligation to ensure access to and use of leased lines for cross-border data processing services. The United States will work to ensure that legitimate cross-border services can continue to be offered into China.
FOREIGN TRADE BARRIERS -89-
Terry-Silver Materials (5-2017), p. 19 Legal Services
Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Greece, Hungary, Latvia, Lithuania, Malta, and Slovakia require EU or EEA nationality for full admission to the bar, which is necessary for the practice of EU and Member State law. In many cases, non-EU lawyers holding authorization to practice law in one Member State face more burdensome procedures to obtain authorization in another Member State than would a similarly situated lawyer holding EU citizenship.
Member State Measures
Bulgaria: The Bulgarian Bar Act allows law firms registered in the EU to practice in Bulgaria under their original name after they register with the local bar association. However, at least one of the partners has to be registered both in Bulgaria and in another Member State if the local partnership is to use an internationally recognized name.
Czech Republic: Unlike EU-based law firms, U.S. law firms cannot establish Czech branches to practice law (i.e., operate directly through their home legal entities). However, attorneys from U.S. law firms admitted as foreign lawyers may establish a business entity to engage in the practice of law under the U.S. company name.
Hungary: U.S. lawyers may provide legal services only under a “cooperation agreement” in partnership with a Hungarian law firm, and may only provide information to their clients on U.S. or international law.
Accounting and Auditing Services
Member State Measures
Czech Republic: The Czech Republic requires that at least a majority of the voting rights in an audit firm must be held by auditors licensed in the EU or by a firm licensed to perform statutory audits in a Member State.
Slovakia: Slovakia requires that companies providing auditing services be registered in a Member State and maintains an equity cap requiring that 60 percent of the voting rights of these companies be held by EU nationals.
Retailing
Member State Measures
EU nationality is required for operation of a pharmacy in Austria, France, Germany, Greece, and Hungary.
Hungary: In April 2016, Hungary repealed the mandatory Sunday closure of large retail shops, which was introduced in May 2015. A 2015 law requires that food retail chains with annual revenue of $180 million or greater shut down if they incur losses for two consecutive years. While the EU required Hungary to repeal a sanitation tax levied only on large, multinational supermarkets, government officials have stated they would find new ways to make foreign retailers pay more tax.
Romania: In July 2016, Romania passed a law requiring large supermarkets to source from the local supply chain at least 51 percent of the total volume of their merchandise in meat, eggs, fruits, vegetables, honey, dairy products, and baked goods. The law vaguely defined the local supply chain and it is intended to favor Romanian products. This law applies to high-volume supermarkets with more than €2 million in annual
FOREIGN TRADE BARRIERS -170- Terry-Silver Materials (5-2017), p. 20 India currently lacks an effective system for protecting against unfair commercial use, as well as unauthorized disclosure, of undisclosed test or other data generated to obtain marketing approval for pharmaceutical and agricultural products. The U.S. Government and stakeholders have also raised concerns with respect to infringing pharmaceuticals being marketed without advance notice or opportunity for parties to resolve their IPR disputes.
With respect to trade secrets, U.S. and Indian companies have expressed interest in eliminating gaps in India’s trade secrets regime, such as through the adoption of standalone trade secrets legislation. The National IPR Policy called for trade secrets to serve as an “important area of study for future policy development” and the United States and India held a positive workshop on trade secrets issues in October 2016. Following the workshop, both countries announced important new work under the TPF to advance bilateral efforts on trade secrets.
SERVICES BARRIERS
The Indian government has a strong ownership presence in major services industries such as banking and insurance. Foreign investment in businesses in certain major services sectors, including financial services and retail, is subject to limitations on foreign equity. Foreign participation in professional services is significantly restricted and in the case of legal services, is prohibited entirely.
Insurance
In March 2015, India’s Parliament enacted the Insurance Laws (Amendment) Act, 2015, which ostensibly allows up to 49 percent FDI in Indian insurance companies, a change long sought by U.S. and other foreign companies. FDI in this sector was previously capped at 26 percent. However, the amendment was accompanied by a new requirement that all insurance companies be Indian “controlled.”
Responding to uncertainty about the meaning of this term, the Insurance Regulatory and Development Authority of India (IRDAI) promulgated guidelines on October 19, 2015 that prescribe conditions for satisfying the “Indian control” requirement. The guidelines include: (1) a mandatory requirement that a majority of directors be nominated by Indian investors; (2) limitations on the rights of foreign-nominated board members; (3) requirements for how “key management persons” are to be appointed; and (4) requirements on the manner in which control over “significant policies” of the enterprise must be exercised.
Foreign investors have expressed concern that the new requirements create a rigid structure that ignores operational realities and will dilute the rights of foreign investors in Indian insurance companies, making additional FDI in the sector unattractive. As these guidelines are intended to be applied retroactively, the requirements regarding “control” would apply to existing companies with foreign investment regardless of whether foreign investors plan to increase their equity, in addition to companies planning future investment.
In December 2015, the IRDAI issued a revision to its draft regulations governing the provision of reinsurance services in India, proposing that local Indian reinsurers be afforded a mandatory first order of preference (or right of first refusal) for reinsurance business in India. Such a requirement would severely restrict the business for which foreign reinsurers could compete and would decrease the interest of foreign reinsurers in establishing branches in India, with resulting negative impacts to the supply and cost of reinsurance services in the Indian market.
In October 2016, the Insurance Regulatory and Development Authority (IRDA) circulated a discussion paper that called for the compulsory public listing of life insurers that have been in operation in India for seven years or more. Such a requirement to publicly list is rare, and companies generally decide whether
FOREIGN TRADE BARRIERS -211- Terry-Silver Materials (5-2017), p. 21 Legal Services
At present, membership in the Bar Council of India (BCI), the governing body for the legal profession, is mandatory “to practice law” in India and is limited to Indian citizens. Foreign law firms are not allowed to open offices in India. The Advocates Act, which is administered by BCI, provides for foreign lawyers or law firms to visit India on a reciprocal basis for temporary periods to advise their clients on foreign law and diverse international legal issues.
Some industry and government actors in India are reviewing the merits of liberalization of the legal services market in India. In June 2016, BCI published draft rules that would liberalize the legal services sector in India. The rules would have opened India’s market to non-litigation services (i.e., foreign and international law counseling, and advisory, arbitration, and other services relating to domestic law), but litigation services would still have been restricted to Indian lawyers and controlled by the Advocates Act. However, on September 29, 2016, the BCI rescinded the draft rules on liberalization. The United States and India are continuing to discuss liberalization of legal services under the TPF.
Architecture
Although Indian companies continue to demand high quality U.S. design for new buildings and infrastructure development, foreign architecture firms find it difficult to do business in India due to the legal environment. An uncertain Indian legal regime for architectural and related services has resulted in court cases against foreign design firms seeking to perform work in India and harassment of their potential clients, causing significant losses for U.S. companies.
Telecommunications Services & Equipment
Barriers to Entry
India eliminated a 74 percent cap on FDI in Indian wireless and fixed telecommunications providers in August 2013, though government approval is required for FDI above 49 percent. U.S. companies note that India’s one-time licensing fee (approximately $500,000 for a service-specific license, or $2.7 million for an all India Universal License) for telecommunications providers serves as a barrier to market entry for smaller market companies. The government of India continues to hold equity in multiple telecommunications firms. These ownership stakes have caused private carriers to express concern about the fairness of India’s general telecommunications policies. For example, valuable wireless spectrum was set aside for Mahanagar Telephone Nigam Limited (MTNL) and Bharat Sanchar Nigam Limited (BSNL), state-owned telecommunications service providers in India, instead of being allocated through competitive bidding. Although it does not appear that MTNL and BSNL paid a preferential price, they did receive their spectrum allocation well ahead of privately-owned firms.
Telecommunications Equipment - Security Regulations
In 2009 and 2010, India promulgated a number of regulations negatively impacting trade in telecommunications equipment, including mandatory transfer of technology and source code, as well as burdensome testing and certification requirements for telecommunications equipment. India removed most of these measures in response to international stakeholders’ concerns, but is still seeking to require testing of all “security-sensitive” telecommunications equipment in India and is expected to implement this requirement after developing additional indigenous testing capacity. It is unclear whether that capacity will increase sufficiently in order to be able to implement the testing criteria. U.S. officials continue to urge India to reconsider the domestic testing policy and to adopt the use of the Common Criteria Recognition
FOREIGN TRADE BARRIERS -213- Terry-Silver Materials (5-2017), p. 22 INDONESIA Legal Services (p. 229) Only Indonesian citi ens may be licensed as lawyers in Indonesia. oreign lawyers may wor in Indonesia as legal consultants with the approval of the Ministry of Justice and uman Rights. A foreign law firm see ing to enter the mar et must establish a partnership with a local firm.
APAN Legal Services (p. 2 1) Japan imposes cumbersome and time-consuming procedures for the registration of foreign lawyers to provide international legal services in Japan and prohibits foreign lawyers from establishing branch offices in Japan (except for one type of firm which is first re uired to corporati e locally). The United States continues to urge Japan to further liberali e the legal services mar et. or example the United States urges Japan to eliminate the re uirement that two years of post-admission practice of home country law ta e place outside Japan; ensure that legal or bar association rules do not impede Japanese lawyers from becoming members of international legal partnerships; and significantly simplify and accelerate the registration process for new foreign legal consultants.
OREA Legal Services (pp. 2 1 2 2) Over the past five years Korea has ta en certain steps to open its legal services mar et as outlined in KORUS. The first step involved creating a legal status for foreign legal consultants and allowing foreign law firms to open foreign legal consultant offices ( LC offices) in Korea. The law allows foreign attorneys with a minimum of three years of wor experience to provide consulting services on the law of the jurisdiction in which they are licensed. The second stage implemented as of March 15 2014 allows LC offices to enter into “cooperative agreements” with Korean firms to be able to jointly deal with cases where domestic and foreign legal issues are mixed. The third stage to be implemented by March 15 2017 will allow foreign-licensed lawyers and firms to establish joint ventures and hire Korean-licensed lawyers.
On ebruary 4 2016 the ational Assembly amended the oreign Legal Consultants Act to allow joint ventures in Korea between domestic law firms and law firms from the United States and other countries with similar provisions in their free trade agreements. The Act contains several re uirements that are uni ue to Korea and that discourage U.S. companies from starting joint ventures. The Act limits a foreign law firm’s ownership of the joint venture to 4 percent re uires the firms composing the joint venture to have been in operation for three years and excludes joint ventures from wor ing on litigation notari ation labor affairs intellectual property rights business involving the Korean government and cases on family relations or inheritance. Although the bill allows foreign law firms to operate joint ventures in Korea for the first time these provisions undermine the legislation’s purpose of facilitating trade in legal services between the two countries. The United States will continue to urge Korea to review its overall approach to opening the legal services mar et and to ensure Korea complies with its international obligations.
MALA SIA Legal Services (p. 301) Amendments to the Legal Professions Act came into force in June 2014 that allow foreign law firms and foreign lawyers to practice in peninsular Malaysia. Licenses may be issued to foreign law firms to operate an international partnership with a Malaysian law firm or as a ualified foreign law firm ( L ) without partnering with a local firm. oreign lawyers wor ing in international partnerships or L s must reside in Malaysia for not less than 182 days in any calendar year. The amendments also authori e “fly-in- flyout” activities whereby a foreign lawyer advising on non-Malaysian law may enter Malaysia for up to 60 days in a calendar year subject to immigration approval. A foreign lawyer who has been authori ed or registered to practice law in Malaysia is not subject to the 60 day limit.
Terry-Silver Materials (5-2017), p. 23 OMAN Legal Services (p. 33 ) on-Omani attorneys including U.S. attorneys practicing in Oman are prohibited from appearing in courts of first instance. The United States has raised concerns with Oman about this limitation.
RUSSIA SERVICES BARRIERS (pp. 3 0) Russia’s services mar et is largely open to U.S. services suppliers including in areas such as financial services education legal services and distribution. owever specific problems remain in particular areas. or example Russia continues to prohibit foreign ban s from establishing branches in Russia. Moreover the Central Ban of Russia (CBR) established the ational System of Payment Cards ( SPC) in July 2014 to handle the processing of all domestic credit card transactions; the SPC also launched a domestic credit card “Mir”. This new procedure has introduced additional technical costs for foreign- based credit card companies which must now transmit data for all transactions within Russia through the SPC system undermining a ey competitive advantage foreign payments suppliers had (relying on self- owned global processing platforms located outside of Russia). There are also concerns about the potential conflict of interest because the state regulator (the CBR) owns the domestic competitor (Mir).
In addition the ability of foreign service suppliers to provide services to public utilities and certain energy related services remains limited. Although Russia raised the limit on foreign capital in the insurance sector from 25 percent to 50 percent a lac of transparency regarding the issuance of licenses among other issues hinders foreign investment in the mar et. Sta eholders report that the process for an individual or a company to obtain a license to provide an insurance service remains difficult and limitations on the form of commercial establishment adversely affect some sectors. or example Russia has not yet amended its legislation to reflect its WTO commitment to remove the limitation on sales of biologically active substances to pharmacies and speciali ed stores only.
SINGAPORE Legal Services (pp. 393) Except in the context of international arbitration U.S. and other foreign law firms with offices in Singapore are not allowed to advise on Singapore law by hiring or entering into partnership with Singapore- ualified lawyers. In order to advise on Singaporean law foreign firms must either form a joint venture with a Singapore law practice (licensed as a Joint Law enture) or get licensed as a ualifying oreign Law Practice ( LP). LP licenses are limited (nine have been issued since 2008) and according to the Ministry of Law the LP scheme is not open for application and there are no details available regarding further rounds of applications.
THAILAND Legal Services (pp. 27) U.S. investors may own law firms in Thailand only if they enter into commercial association with local attorneys or local law firms and U.S. citi ens and other foreign nationals (with the exception of “grandfathered” non-citi ens) may not provide legal services. In certain circumstances foreign attorneys can obtain a limited license entitling them to offer advisory services in foreign and international law.
Terry-Silver Materials (5-2017), p. 24 Oc yun-ju Foreign envoys protest limits on foreign law firms, The orean Herald (2016-01-18) (laeticia.oc @heraldcorp.com)
The U.S. envoy to Korea visited the ational Assembly on Monday to renew his calls for easing of restrictions on foreign law firms here citing the bilateral free trade pact prompting criticism from Korean lawyers’ groups over the envoy’s “intervention in domestic affairs.”
Mar Lippert the U.S ambassador to Korea visited Rep. Lee Sang-min head of the parliamentary legislation and judiciary committee to deliver a joint statement protesting the current bill on the opening of Korea’s legal mar et. e allegedly said during the meeting that the bill fails to comply with the spirit of Korea-U.S. ree Trade Agreement voicing concerns over possible diplomatic dispute if the bill is passed without amendments.
“The revision contains several terms restricting foreign law firms from setting up a joint venture here. We urge the parliament to adopt a bill opening Korea’s legal services mar et more completely ” Lippert and three foreign envoys representing the U.K. European Union and Australia said in the statement.
Omitted Picture: U.S. Ambassador to Korea Mar Lippert sits for tal s with Rep. Lee Sang-min (right) chairman of the parliamentary judiciary committee over bills concerning the opening of the legal mar et at the ational Assembly on Monday
The four ambassadors have relayed complaints of their respective countries about Korea’s regulations on foreign firms largely ta ing issue with clauses banning foreign law firms from owning a sta e of more than 4 percent in a joint venture with a Korean firm and re uiring them to retain more than three years of experience in the local legal industry.
“We believe from our own experience in the UK that having an open legal services mar et ultimately strengthens the sector. It creates jobs attracts investment and enables all firms in the sector to compete regionally and globally. So would be a great benefit to the Korean economy ” ic Duvivier a spo esperson for the U.K. Embassy told The Korea erald.
The foreign envoys as ed the parliament to see a solution to satisfy all the parties involved through sufficient consultation before legislating the vote.
As Korea agreed to fully open its mar et to the EU by July 2016 and the U.S. by March 2017 the Justice Ministry proposed a revised draft of the oreign Legal Consultant Act last August to implement the final stage of the legal mar et liberali ation under the free trade agreements with the countries.
Under the revised bill the foreign law firms are allowed to set up joint ventures with Korean counterparts hire Korean lawyers and partially practice domestic law as the final step. But they are banned from representing clients in Korean courtrooms owning a sta e more than a Korean firm in the joint venture and handling domestic cases related to labor inheritance and government affairs.
A total of 26 law firms from the U.S. and U.K. have opened their offices in Seoul since the trade deals came into effect in 2012 and 2011 respectively with most of them focused on offering consulting services for mergers and ac uisitions intellectual property initial public offerings and cross-border litigation.
According to sources in the legal community South Korea’s legal mar et is estimated to be worth around 3 trillion won ( 2.5 billion) though the official figure is not available.
The Justice Ministry maintained that the revision complies with the free trade agreements as the pact enabled Korean government to set conditions of the oreign Legal Consultant Act.
Terry-Silver Materials (5-2017), p. 25 “The Justice Ministry has sufficiently collected opinions from academia domestic and foreign lawyers groups to write the bill in accordance with the free trade agreement ” an official from the Justice Ministry told The Korea erald.
“The Justice Ministry imposed the condition of minimum experiences for foreign law firms to guarantee a minimal level of legal services uality for Korean consumers ” the official said.
As Korea is in the initial stage of opening of the mar et there should also be a platform for local firms to contribute to the legal services mar et.
In response to the foreign envoy’s visit to his office Rep. Lee Sang-min said that he would ta e more time to review the bill in the committee to prevent possible diplomatic clashes arising from the bill.
“Ac nowledging the complaints from the trade partner countries I have not tabled the bill for a vote ” Lee told reporters after the meeting. “I as ed the Justice Ministry to ma e efforts to minimi e the diplomatic dispute after consulting the countries foreign and industry ministries to map out a comprehensive stance at the national level.”
Lee hinted that he would pass the bill in the parliamentary committee within next month and submit it to the plenary session of ational Assembly for a vote in May to legislate it. The Assembly is currently in deadloc over other economic related bills with the new parliament slated to be elected on April 13.
Earlier this month Lee delayed putting the bill up for a vote at the parliamentary legislation and judiciary committee upon complaints from the ambassadors.
But his decision to put off the vote triggered criticisms among lawma ers and lawyers’ groups that the parliament caved in to foreign pressure which was an intervention in the nation’s sovereignty.
“The protest visit made by four countries’ ambassadors to Korea to protect their law firms’ interests is clearly violation to South Korea’s sovereignty ” Korea Bar Association said in a statement. “They are forcing the parliament to discriminate against local law firms for the sa e of foreign law firms an action that is beyond their authority.”
Another lawyers’ group Seoul Bar Association aired similar concerns vowing to send formal complaints to the foreign embassies later in the day. “It is an intervention in domestic affairs that ambassadors protested the ational Assembly’s legislative power citing diplomatic dispute.
Refuting the accusations Rep. Lee said that it was “old-fashioned” to bring up the sovereignty issue when South Korea has signed free trade agreements with several countries. “Some media reports suggest that I yielded to the foreign envoys’ pressure but it is not true. They did not even put pressure on me.
The U.K. Embassy explained that its action was not at all to infringe on Korea’s sovereignty.
“As Chairman Lee Sang-min said this afternoon to US Ambassador Lippert it is natural for an embassy or a country’s representative to raise concerns with the host country s government or parliament particularly on matters specifically relating to TAs ” the spo esperson for the U.K. said.
“The UK Government has wor ed closely with the Korean government on regulatory reform and in trying to boost the service sector ” he said. “We are een to continue wor ing with Korea to share our experience of growing these sectors.”
The foreign envoys plan to have a meeting with an official from the Justice Ministry to tal through the issue sometime this wee .
Terry-Silver Materials (5-2017), p. 26 Terry-Silver Materials (5-2017), p. 27 Terry-Silver Materials (5-2017), p. 28 Terry-Silver Materials (5-2017), p. 29 AGENDA
U.S. AUSTRALIA LEGAL SERVICES MEETING Australian Embassy 1601 Massachusetts Ave. N.W. Washington, D.C. May 17, 2006 at 3 00 00 PM
I. Introductory Remarks ABA President Michael Greco Australian Law Council President ohn North ABA GATS Task Force Chair en Reisenfeld ABA Section of International Law Transnational Practice Committee Co chair Bob Lutz (10 mins.)
II. Australian Proposal and U.S. Delegation Roundtable Discussion
A. Overview and Agenda Explanation ( mins.)
B. Mutual Recognition of Foreign Legal Consultants (2 mins.)
1. Australian Comments 2. U.S. Comments
C. Mutual Recognition of Legal ualifications (2 mins.)
1. Australian Comments 2. U.S. Comments
D. Mutual Recognition of Rules Regulating Admission of Australian ualified Lawyers (2 mins.)
1. Australian Comments 2. U.S. Comments
E. Reciprocal Disciplinary Protocol (2 mins.)
1. U.S. Comments 2. Australian Comments
III. Summary and Next Steps ( mins.)
Terry-Silver Materials (5-2017), p. 30 US Australia Legal Services Meeting 17 May 2006 Washington DC
Venue: Australian Embassy 1601 Massachusetts Ave W Washington DC Time: 3.oo 5.oo pm. Coc tail unction at Embassy immediately following meeting.
Australian Participants Mr John orth (President Law Council of Australia) Dr Gordon ughes (Partner Bla e Dawson Waldron Member of the International Legal Services Advisory Council and former President Law Council of Australia) Ms Margery icoll (Director - International Law Council of Australia) Mr John Tuc er (Director Secretariat International Legal Services Advisory Council) Ms Anastasia Carayanides (Minister-Counsellor Australian Embassy Washington) Ms Toni armer (Counsellor Trade Policy Australian Embassy Washington) Ms Prudence Gordon (Executive Officer Department of oreign Affairs and Trade) Professor Michael Coper (Chair Council of Australian Law Deans and Dean Australian ational University College of Law) US Participants Mr Mi e Greco (President American Bar Association; member Massachusetts Bar) Professor Bob Lut (Co-chair Transnational Legal Practice Committee of ABA Section of International Law (SIL); former Chair ABA SIL; Chair California Bar MJP Committee; Member California Bar) Mr Philip von Mehren (Co-chair Transnational Legal Practice Committee of ABA SIL; Member ABA GATS Tas orce; member ew or Bar) Mr Ken Reisenfeld (Chair ABA GATS Tas orce; former Chair ABA SIL;member Washington D.C. Bar) Mr Bill Smith ( ormer President ational Organi ation of Bar Counsel ( OBC); Counsel Georgia State Bar) on. Eli abeth Lacy ( ormer Chair ABA Section of Legal Education and Admission to the Bar; Member ABA GATS Tas orce; Justice irginia State Supreme Court) Professor Carole Silver (Member Transnational Legal Practice Committee of ABA SIL; member Illinois State Bar; researcher foreign lawyers in the U.S.) Ms Ellyn Rosen (Staff Counsel ABA Center for Professional Responsibility (CPR); staff ABA Committee on Professional Discipline) on. Jerry andeWalle (Chief Justice orth Da ota Supreme Court; former Chair Conference of Chief Justices; member International Treaties Committee of the Conference of Chief Justices; former Chair ABA Section of Legal Education)
Observers Ms Kristi Gaines (Staff ABA GATS Tas orce; Legislative Counsel ABA Office of Governmental Affairs) Mr Richard van Dui end (Counsel ational Center for State Courts) Ms Ann Main (USTR-negotiator for GATS Legal Services) Ms Erica Moeser (President ational Conference of Bar Examiners)
Terry-Silver Materials (5-2017), p. 31 Law Firm General Counsel Roundtable (May 1, 2017) Resources Related Collaboration with ABA ITILS
Professor Laurel S. Terry Penn State University, Dickinson Law [email protected]
Professor Carole Silver Northwestern Pritzker School of Law [email protected]
II. EXAMPLES OF ITILS’ ACTIVITIES
6. Providing Information to State Regulators (of lawyers and legal services)
a) Conference of Chief Justices, Resolution #2 (2015) Encouraging States to Adopt Explicit Policies Regarding [Limited] Foreign Lawyer Admission & “Association” Rights http://www.americanbar.org/content/dam/aba/uncategorized/GAO/2015feb4_res2inboun dlawyering.pdf
b) Terry, Map Showing Jurisdictions with Rules Regarding Foreign Lawyer Practice Rules, http://tinyurl.com/laurelterrymap [The map is regularly circulated to the Conference of Chief Justices]
c) Excerpts from the ABA ITILS State Toolkit
d) Facilitating state participation in the surveys by the International Bar Assoc. (see samples)
Terry-Silver Materials (5-2017), p. 32 CONFERENCE OF CHIEF JUSTICES
Resolution 2
In Support of Regulations Permitting Limited Practice by Foreign Lawyers in the United States to Address Issues Arising from Legal Market Globalization and Cross-Border Legal Practice
WHEREAS, the United States is the world's largest national economy and leading global trader; and
WHEREAS, since World War II, the opening of world markets and the expansion of international trade has increased real incomes in the United States by 9%; and
WHEREAS, 49 out of 50 states exported more than one billion dollars worth of goods in 2013; and
WHEREAS, the globalization of commerce naturally increases the need for and provision of legal services across international borders; and
WHEREAS, the interests of organizations and individuals in the United States are served by access to legal experts in the laws of foreign countries; and
WHEREAS, the Council of Bars and Law Societies of Europe has recommended to the negotiators of the pending Transatlantic Trade and Investment Partnership Agreement (a United States-European Union free trade agreement known as the “TTIP”) that, with respect to legal services, duly licensed European lawyers be allowed certain practice privileges in the United States; and
WHEREAS, in additional to the TTIP, the United States is actively negotiating several multilateral trade-in-services agreements that, if adopted, will likely boost the need for cross-border legal practices in both the United States and the foreign trade partner countries; and
WHEREAS, in an effort to develop lawyer regulations that promote both quality service and high ethical standards, the Conference of Chief Justices adopted Resolution 11 (January 29, 2014) encouraging states to “consider the ‘International Trade in Legal Services and Professional Regulation: A Framework for State Bars Based on the Georgia Experience’ (Updated January 8, 2014) as a worthy guide for their own state endeavors to meet the challenges of ever-changing legal markets and increasing cross-border law practices”; and
1 Terry-Silver Materials (5-2017), p. 33 WHEREAS, it is increasingly necessary to proactively address the complex issues that arise from legal market globalization and cross-border legal practice involving domestic lawyers seeking to meet their clients’ needs abroad and foreign lawyers seeking to meet their clients’ needs in the United States; and
WHEREAS, the American Bar Association, after making studious efforts to balance client protection and the public interest, has endorsed several model policies with respect to foreign lawyers practicing in the United States; and
WHEREAS, although the Conference of Chief Justices has expressed its support for these ABA policies, not all jurisdictions have considered each of these policies;
NOW, THEREFORE, BE IT RESOLVED that the Conference of Chief Justices strongly encourages its members to adopt explicit policies that permit the following qualified activities by foreign lawyers as a means to increase available legal services and to facilitate movement of goods and services between the United States and foreign nations:
1) Temporary practice by foreign lawyers (ABA Model Rule for Temporary Practice by Foreign Lawyers), 2) Licensing and practice by foreign legal consultants (ABA Model Rule for the Licensing and Practice of Foreign Legal Consultants), 3) Registration of foreign-licensed in-house counsel (ABA Model Rule of Professional Conduct 5.5), 4) Pro hac vice appearance in pending litigation in a court or agency by licensed foreign lawyers (ABA Model Rule for Pro Hac Vice Admission), 5) Foreign lawyer participation in international arbitration or mediation, as counsel, arbitrator, or mediator (ABA Model Rule for Temporary Practice by Foreign Lawyers and ABA Policy Favoring Recognition of Party Freedom to Choose Representatives Not Admitted to Practice Law), 6) Formal professional association between foreign and United States lawyers who are duly licensed in their home country (ABA Model Rule of Professional Conduct 5.4 and ABA Model Rule for the Licensing and Practice of Foreign Legal Consultants allow such association), and 7) Foreign lawyer employment of United States lawyers and United States lawyer employment of foreign lawyers who are duly licensed in the United States as a foreign legal consultant or in their home country (ABA Model Rule for the Licensing and Practice of Foreign Legal Consultants provides that locally licensed lawyers may be employed by a law firm based in another country (or lawyer based in another country)).
Adopted as proposed by the CCJ Task Force on the Regulation of Foreign Lawyers and the International Practice of Law at the CCJ Midyear Meeting on January 28, 2015.
2 Terry-Silver Materials (5-2017), p. 34 urisdictions with Rules Regarding Foreign Lawyer Practice Prepared Oct. 14 2016 by Laurel Terry ([email protected]) Professor Dic inson Law
WA
ME MT ND
MN OR VT NH
ID NY MA SD WI RI WY MI CT IA PA NJ NV NE OH DE IL IN UT CO WV MD A KS CA MO KY
NC TN District of AZ OK AR SC Columbia NM
MS AL GA
T AK LA
FL
HI
See p. 2 for lin s chart & data sources: the at’l Conference of Bar LEGEND (see bac page for additional information) Examiners and the ABA Center for Professional Responsibility ellow shading has a foreign legal consultant rule rule permits temporary practice by foreign lawyers (also nown as I O or fly-in fly-out) rule permits foreign pro hac vice admission rule permits foreign in-house counsel out has had at least one foreign-educated applicant sit for a bar exam between 2010 and 2014.
Terry-Silver Materials (5-2017), p. 35 Summary of State Foreign Lawyer Practice Rules (10/14/16*) Prepared by Laurel Terry ([email protected]), Professor, Dickinson Law
Based on implementation information contained in charts prepared by the ABA Center for Professional Responsibility dated 4/20/2016 and 9/29/16 available at http://tinyurl.com/ABA-MJP-Chart and http://tinyurl.com/ABA-20-20-Chart *This document is regularly updated. You can find the most recent version online on this ABA webpage and my webpage: see http://tinyurl.com/laurelterrymap
There are five methods by which foreign lawyers might actively practice in the United States: 1) through a license that permits only limited practice, known as a foreign legal consultant rule [addressed in ABA MJP Report 201H]; 2) through a rule that permits temporary transactional work by foreign lawyers or arbitration or mediation [addressed in ABA MJP Report 201J]; 3) through a rule that permits foreign lawyers to apply for pro hac vice admission in which a court grants a lawyer to appear temporarily in ongoing litigation [ABA Resolution #107C (Feb. 2013)]; 4) through a rule that permits foreign lawyers to serve as in-house counsel [ABA Resolutions #107A&B (Feb. 2013)]; and 5) through full admission as a regularly-licensed lawyer in a U.S. jurisdiction. (The ABA does not have a policy on Method #5 although there are a number of foreign lawyers admitted annually; information about state admission rules is available in NCBE’s annual COMPREHENSIVE GUIDE TO BAR ADMISSIONS. See also NCBE Statistics.) Links to the ABA policies appear in the chart below. In 2015, the Conference of Chief Justices [CCJ] adopted a Resolution that urged states to adopt explicit policies on issues 1-4 and on the issue of “association.” (For a related map, see here). States that are considering whether to adopt rules regarding these five methods of foreign lawyer admission might want to consider the model provided in International Trade in Legal Services and Professional Regulation: A Framework for State Bars Based on the Georgia Experience, available at http://tinyurl.com/GAtoolkit. The CCJ endorsed this “Toolkit” in 2014. Jurisdictions with FLC Rules Explicitly Permit Foreign Jurisdictions that Permit Jurisdictions that Permit Since 2010 has had a Lawyer Temporary Practice Foreign Lawyer Pro Hac Vice Foreign In-House Counsel foreign-educated full- admission applicant 33 11 18 23 32 AK, AZ, CA, CO, CT, DE CO, DE, DC (Rule 49(c)(13) CO, DC (Rule 49), GA (Rule AZ (R. 38(a) , CO (205.5), AL, AK, AZ, CA, CO, CT, (Rule 55.2), DC, FL, GA, HI, (RPC 5.5(d)), FL, GA, NH, 4.4), IL, ME, MI, (Rule CT, DC, DE (Rule 55.1), GA, DC, FL, GA, HI, IL, IA, ID, IL, IN, IA, LA, MA, MI, NM (includes transactional 8.126), NJ, NM, NY, ND, OH IL, IA, IN, KS, MA, MT, NH, LA, ME, MD, MA, MI, MN, MO, NH, NJ, NM, NY, matters), NY, OR, PA, VA (Rule XII), OK (Art. II(5)), NJ, NC, NY, ND, OR (allowed MO, NV, NH, NY, OH, NC, ND, OH, OR, PA, SC, OR, PA, TX (Rule XIX), UT on a temporary basis under Rule OR, PA, RI, TN, TX, UT, TX, UT, VA, WA (appellate courts only). (Note: not 5.5(c); further study underway); TX, VT, VA, WA, WI on the CPR’s list. Cf. Utah Rule VA (Part 1A), WA, WI, WV of Appellate Procedure 40 with Rule 14-806), VA, WI ABA Model FLC Rule (2006) ABA Model Rule for ABA Model Pro Hac Vice ABA Model Rule 5.5 (d) re No ABA policy; Council Temporary Practice by Rule Foreign In-House Counsel and did not act on Committee Foreign Lawyers Registration Rule Proposal; see state rules ABA Commission on State Rules—Temporary Comparison of ABA Model In-House Corporate Counsel NCBE COMPREHENSIVE Multijurisdictional Practice Practice by Foreign Lawyers Rule for Pro Hac Vice Registration Rules (ABA GUIDE TO BAR ADMISSIONS web page (ABA chart) Admission with State chart); Comparison of ABA Versions and Amendments Model Rule for Registration of since August 2002 (ABA In-House Counsel with State chart) Versions (ABA chart); State- by State Adoption of Selected Ethics 20/20 Commission Policies (ABA chart) *Note: As the map on the back of this page shows, six jurisdictions (CO, DC, GA, NY, OR, VA) have rules for all 5 methods; four jurisdictions have rules on 4 methods (IL, NH, PA and TX); and thirteen jurisdictions have rules on 3 methods (AZ, CT, DE, FL, IA, MA, MI, NJ, ND, OH, UT, WA, and WI). [Prior editions of the map erroneously included PA among the “five method”Terry-Silver states. Materials This chart(5-2017), covers p. 36 50 U.S. states & the District of Columbia.] International Trade in Legal Services and Professional Regulation: A Framework for State Bars Based on the Georgia Experience1
American Bar Association Task Force on International Trade in Legal Services February 4, 2012 (Updated January 8, 2014)
“From Main Street to Wall Street, lawyers of every practice area, every size of firm, and every jurisdiction are affected by globalization. It may involve a dispute between a foreign supplier and a local grocery store; it may be a testator's ownership of foreign real estate; it may be a company's efforts to sell its products in an emerging market like China. The list could go on and on, but the message is clear: this is not the legal profession we inherited from our parents.”2
I. INTRODUCTION
This white paper recounts the experience of the State Bar of Georgia and the Georgia Supreme Court in adopting a regulatory regime to confront issues arising from globalization, cross- border practice and lawyer mobility. Georgia has assumed a leadership position in adopting rules that specifically address and regulate some of the various means by which lawyers from foreign countries may seek to perform services in that state. The Georgia experience provides lessons on how other state bars can generate a consensus to move forward on these issues.
II. WHAT PROMPTED GEORGIA TO ACT?
The Georgia experience is explained by the recognition across a broad cross-section of the bar that Georgia clients (and their Georgia lawyers) had business dealings across the globe. State Bar regulators thought it sensible to consider these developments before a regulatory crisis occurred, not after the fact. They wanted to consider proactively what regulations, if any, were necessary to protect the public (and also position the state to preempt potentially more intrusive national-level regulation at some point down the road). They also recognized that a sound regulatory system that addresses the challenges posed by globalization can enhance the state’s business climate and attractiveness for foreign trade and investment.
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1 Unless otherwise indicated, the views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the policy of the American Bar Association. 2 Gary A. Munneke, Managing and Marketing a Practice in a Globalized Marketplace for Professional Services, 80 N.Y. ST. B. J. 39 (Sept. 2008).
Terry-Silver Materials (5-2017), p. 37 IBA Global Regulation and Trade in Legal Services Report 2014
International Bar Association
4th Floor, 10 St Bride Street London EC4A 4AD United Kingdom
Tel: +44 (0)20 7842 0090 Fax: +44 (0)20 7842 0091 www.ibanet.org
Terry-Silver Materials (5-2017), p. 38 Switzerland ...... 435 Syria ...... 439 Taiwan (Chinese Taipei) ...... 443 Tajikistan ...... 447 Thailand ...... 450 Tunisia ...... 454 Turkey ...... 458 Turkmenistan ...... 463 UAE – Abu Dhabi ...... 466 UAE – Dubai ...... 469 Ukraine ...... 474 United Kingdom – England and Wales ...... 478 United Kingdom – Northern Ireland ...... 484 United Kingdom – Scotland ...... 488 United States – Alabama ...... 493 United States – Alaska ...... 496 United States – Arizona...... 502 United States – Arkansas ...... 508 United States – California ...... 511 United States – Colorado ...... 516 United States – Connecticut ...... 521 United States (Delaware) ...... 525 United States (District of Columbia) ...... 530 United States (Florida) ...... 535 United States (Georgia) ...... 540 United States – Hawaii ...... 546 United States – Idaho ...... 551 United States – Illinois ...... 555 United States – Indiana ...... 560 United States – Iowa ...... 564 United States – Kansas ...... 569 United States – Kentucky ...... 572 United States – Louisiana ...... 576 United States – Maine...... 581
Terry-Silver Materials (5-2017), p. 39 Republic of Korea Is there legislation governing the legal Attorney-at-law act 2000 (as amended). sector? Under what title do lawyers practice? 변호사 (byeonhosa) – attorney at law. How does an individual lawyer obtain a To become a licensed lawyer in Korea, a candidate was ‘license ‘ to practice law? How often traditionally required to pass the Korean Bar Examination must this be renewed? and have completed the two-year training course at the Judicial Research and Training Institute. A new qualification system was introduced in 2009 with the enactment of the Law School Act. Under the new system, to become a licensed lawyer in Korea, a candidate must complete a graduate level law school programme (three years) at an approved university in Korea and have passed the Korean Bar Examination (new). The first candidates seeking to qualify under the new system graduated from law school in 2012. The two systems will operate concurrently until 2017 when the traditional qualification process will be phased out. Any person who has qualified to become a licensed lawyer and wishes to commence legal practice must register with the Korean Bar Association. Applications for registration must be submitted to the KBA through the local bar association with which the applicant intends to be affiliated. The referring local bar association may comment in writing to the KBA on the applicant’s eligibility for registration The two systems of qualification will operate concurrently until 2017, when the traditional qualification system will be phased out. Does this entitle the holder to practice Yes. throughout the country? If the law licence only permits one to practise on a sub-national level, please explain the jurisdictional limits Are there certain activities that are Only Korean lawyers have rights of audience in court and ‘reserved’ to those who are licensed to can provide advice on the law of Korea practise law in the jurisdiction? Do you need to hold local nationality to No. be eligible to practise law? What legal forms can lawyers work in? Lawyers may work as sole practitioners, or in general or (eg, self-employment, partnership, limited liability partnerships or in limited liability companies. limited liability partnership, multi- disciplinary partnership, incorporation) What other ethical or regulatory The Korean Bar Association has issued a code of ethics. requirements must a licensed lawyer comply with? Do law firms need to receive a licence Korean lawyers must register their practising address with (or permission/approval) to practise law? the Korean Bar Association but there is no explicit law firm licensing regime. Which authority issues licences? Are there Licences are issued by the Korean Bar Association but an
Terry-Silver Materials (5-2017), p. 40 Republic of Korea different authorities for individuals and individual must register first with their local bar association. firms? Is the jurisdiction a member of the WTO? Korea has been a member of the WTO since 1 January 1995. Has it made any commitments under Korea has made no commitments on legal services under GATS in legal services? the GATS. Is the jurisdiction party to bilateral Korea has bilateral agreements with ASEAN, EFTA, EU, India, agreements which offer special Chile, US, Peru and Turkey. treatment to businesses or individuals from particular countries? Do these currently include legal services Korea has made commitments in legal services in all of its or are there plans to include them in bilateral free trade agreements since 2005. future? Are foreign lawyers from different Korea has made significant automatic concessions to jurisdictions treated differently as a result lawyers from countries with which it has bilateral free trade of any such agreements? agreements. Lawyers from other countries may apply for the same treatment. Are there any 'foreign law' firms present Yes, since the opening of the market in 2009, around 16 in this jurisdiction? foreign law firms have applied for or been granted licences, most of which are US or UK firms. Are there any explicit rules or restrictions There are no explicit rules on fly-in fly-out visits by lawyers other than visas on fly-in fly-out practice to visit clients, but remunerated work must not be of law? Do you need to obtain a licence for temporary practise? undertaken in Korea without a work permit which in turn requires registration as an FLC. Can a foreign lawyer obtain a visa to Foreign nationals must have a work visa in order to work in visit clients or to market but not to Korea. Work visas are usually valid for up to three years, practise? starting from the date of issue. Lawyers may however obtain visas to visit Korea but must state clearly on their application forms the purpose of their visit. Can a foreign lawyer obtain a licence to A foreign lawyer may obtain a licence to establish and establish and practise as a foreign legal practise as a foreign legal consultant (FLC). FLCs may only consultant and what is the scope of this limited licence? provide legal services with respect to: the laws and treaties of their country of license; universally approved international customary law; and international arbitration proceedings whose applicable law is the law of their country of license or international public law and the jurisdiction of the arbitration is the Republic of Korea. The registration process is two stage: First an application needs to be made to the Ministry of Justice and following its prior approval an FLC may register with the Korean Bar Association. Are there any conditions that must be An FLC must reside in the Republic of Korea for at least 180 fulfilled once a foreign lawyer has been days each year. granted a limited licence? (eg, residency requirement)
Terry-Silver Materials (5-2017), p. 41 Republic of Korea Are there any conditions that must be In order to qualify as an FLC, a lawyer must have a licence to fulfilled for a foreign lawyer to qualify practice law in a country which is a party to an FTA with the for a limited licence? (eg, prior practice) Republic of Korea and a minimum of three years’ experience in providing legal services in the country of licence. Are foreign lawyers permitted to FLCs are permitted to take part in international arbitration undertake arbitration and mediation? proceedings whose applicable law is the law of their country of licence or international public law and the jurisdiction of the arbitration is the Republic of Korea. Are foreign lawyers allowed to appear in No. court under any circumstances? Can foreign lawyers requalify as local In theory, although only by undertaking the full domestic lawyers? route to qualification taken by a Korean lawyer. Can a foreign law firm obtain a licence Yes, a foreign law firm must obtain a licence to open a to open an office? consultancy office in Korea. Even if a foreign law firm does not Foreign legal Consultancy Offices will need to follow the require a legal licence must they register additional requirements to be followed by every business in some form in order to set up an office? (eg, with a ministry of company affairs following their approval and registration by the MOJ and etc.) KBA. Are there different types of foreign law The authorisation and registration criteria to establish an firm ‘licence’? (eg, joint law venture, FLCO include: standalone foreign licence etc.) The FLCO’s head office has been established and operating for more than five years in a country that is a party to an FTA with the Republic of Korea; A Foreign Legal Consultancy Office (FLCO) may only take the form of a representative office (as opposed to a branch office) providing advisory services in foreign law. The FLCO’s head office shall guarantee the full discharge of all civil and commercial liabilities related to the FLCO’s practice in Korea, provide evidence of insurance to cover the damages which may arise in connection with the operation of the FLCO; and appoint a Foreign Legal Consultant with at least seven years of experience as a lawyer as the representative of the FLCO. Is there a quota on the number of No. licences available? Are there geographical restrictions on No. foreign firm licences or on the number of branches a foreign firm can have? Are there ‘scope of practice’ rules that The scope of practice for the Foreign Legal Consultancy apply directly to foreign law firms (as Office is the same as for the FLC. opposed to lawyers themselves)? (eg, home, host, international law). If so, what are they? Are there restrictions on the corporate The FLCO must be a representative office only. form a foreign law firm can take?
Terry-Silver Materials (5-2017), p. 42 Republic of Korea Are there rules about the name a Foreign Legal Consultancy Offices must follow the provisions foreign law firm can take? on naming in the Foreign Legal Consultancy Act. Which entity grants a licence to a foreign The Ministry of Justice issues licences to foreign law firms law firm? If that entity is on the internet, (www.moj.go.kr/HP/ENG/index.do) which must then please provide the URL. register with the Korean Bar Association (www.koreanbar.or.kr/) before commencing operations. Are there restrictions on the ownership Foreign Lawyers are only permitted to own foreign legal share of foreign lawyers in a law firm? consultancy offices which must be 100 per cent foreign owned. May a domestic lawyer be employed by No. a foreign lawyer or law firm? Can a domestic lawyer enter into No. partnership with a foreign lawyer? Can a domestic lawyer or domestic law Yes although only as FLCs. firm employ a foreign lawyer? Other useful sources or comments or links Korean Bar Association: www.koreanbar.or.kr/eng/.
Terry-Silver Materials (5-2017), p. 43 Directory of Regulators of the Legal Profession
International Bar Association 2016
Terry-Silver Materials (5-2017), p. 44 Contents
Which countries does the Directory cover? ...... 10 What issues does the Directory Cover? ...... 10 How was the information contained in the Directory obtained? ...... 11 What does the Directory tell us? ...... 11 Who regulates? ...... 1 2 Who admits lawyers to practise? ...... 13 Who regulates lawyers in practise? ...... 14 Who disciplines lawyers? ...... 1 4 Are there any evident trends in regulation? ...... 15
DIRECTORY OF REGULATORS OF THE LEGAL PROFESSION
ALBANIA ...... 1 7 ANGOLA ...... 1 8 ANTIGUA AND BARBUDA ...... 19 ARGENTINA ...... 20 ARMENIA ...... 2 1 AUSTRALIA – AUSTRALIA CAPITAL TERRITORY ...... 22 AUSTRALIA – NEW SOUTH WALES ...... 23 AUSTRALIA – NORTHERN TERRITORY ...... 25 AUSTRALIA – QUEENSLAND ...... 26 AUSTRALIA – SOUTH AUSTRALIA ...... 27 AUSTRALIA – TASMANIA ...... 28 AUSTRALIA – VICTORIA ...... 29 AUSTRALIA – WESTERN AUSTRALIA...... 30 AUSTRIA ...... 3 1 BAHRAIN* ...... 3 2 BANGLADESH ...... 3 3 BARBADOS ...... 3 4 BELGIUM* ...... 3 5 BELIZE ...... 3 6 BENIN* ...... 3 7 BOLIVIA...... 3 8 BOTSWANA* ...... 3 9 BRAZIL ...... 40 BRUNEI ...... 4 1 BULGARIA ...... 4 2
Terry-Silver Materials (5-2017), p. 45 UNITED STATES – ILLINOIS
Legal Jurisdiction Illinois
Lawyer Title(s) Attorney
Regulator(s) of Illinois Supreme Court's Attorney Registration and Disciplinary Commission Admission
Contact/URL http://www.illinoiscourts.gov/default.asp
Regulator(s) of Illinois Supreme Court Practice
Contact/URL http://www.illinoiscourts.gov/default.asp
Disciplinary Illinois Supreme Court's Disciplinary Commission Authorities
Contact/URL http://www.illinoiscourts.gov/default.asp
Primary Legislative Illinois Rules of Professional Conduct, 2010 Source
URL http://www.illinoiscourts.gov/supremecourt/rules/art_viii/default_new.asp
Terry-Silver Materials (5-2017), p. 46 Law Firm General Counsel Roundtable (May 1, 2017) Resources Related Collaboration with ABA ITILS
Professor Laurel S. Terry Penn State University, Dickinson Law [email protected]
Professor Carole Silver Northwestern Pritzker School of Law [email protected]
II. EXAMPLES OF ITILS’ ACTIVITIES
7. Interacting with Lawyers in Other Countries Regarding Trade Negotiations
a) CCBE T-TIP Requests to the ABA and the Conference of Chief Justices
b) Nov. 19, 2014 Letter from ABA President William Hubbard to CCBE President Aldo Bulgarelli Regarding the CCBE’s Requests regarding the T-TIP Trade Negotiations
Terry-Silver Materials (5-2017), p. 47 CCBE request to the United States in the context of the Transatlantic Trade and Investment partnership (TTIP) negotiations
Background The CCBE has developed its position regarding the discussions with the United States in the framework of the current Transatlantic Trade and Investment partnership (TTIP) negotiations. The CCBE has adopted the following position on February 27, 2014.
CCBE Request (outbound to the USA) A Lawyer with a title from any EU member state must be able to undertake the following activities in all US states, without running the risk of illegal practice of law: Temporary provision of services under home title in home law, EU law, international law, and third country law in which they are qualified, without a local presence; Establishment (i.e. with local presence) under home title to provide services in home law, EU law, international law, and third country law in which they are qualified; International Arbitration (as counsel or arbitrator); International Mediation (as counsel or mediator); Partnership under home title with US lawyers (with local presence); Employment of US lawyers (with local presence) (i.e. no restrictions on structures for establishment, for instance requirements to have a local lawyer as partner, or preventing a local lawyer being an employee).
Matters that are “off the table”
Due to the complexity involved, the following are “off the table”
• Full licence (requalification) • Alternative business structures • In-house counsel (ECJ case law in re: Akzo Nobel - Case C-550/07 P) • Access to the EU laws on free movement of lawyers (Services Directive 77/249/EEC and Establishment Directive 98/5/EC)
Conclusion
The CCBE appreciates the dialogue to date between the CCBE and the CCJ and ABA, and the CCBE is looking forward to receiving the US position so that matters can advance.
Conseil des barreaux européens – Council of the Bars and Law Societies of Europe Rue Joseph II, 40 / 8– B 1000 Brussels – Belgium – Tel.+32 (0)2 234 65 10 – Fax.+32 (0)2 234 65 11/12 – E-mail [email protected] – www.ccbe.org
Terry-Silver Materials (5-2017), p. 48 November 19, 2014
Mr. Aldo Bulgarelli President Council of Bars and Law Societies of Europe Rue Joseph II, 40/8 B 1000 Brussels Belgium
Dear Aldo:
On behalf of Immediate Past President James Silkenat and myself, I would like to express our appreciation for the CCBE’s engagement with the ABA on an ongoing basis regarding issues impacting legal services in the pending Transatlantic Trade and Investment Partnership (TTIP) negotiations.
I understand that representatives of our organizations had a productive discussion at the ABA Annual Meeting in Boston and that you have graciously extended an invitation for several ABA members to join in the November 27th meeting with Chief Judge Jonathan Lippman to be held in conjunction with the CCBE Plenary Session in Brussels. Continuing and enhancing the dialogue among the CCBE, the ABA, the Conference of Chief Justices, and other U.S. organizations such as the National Conference of Bar Presidents is important to advance our shared goal of facilitating the ability of our respective lawyers to effectively serve their clients through cross-border practice in a way that also adequately protects those clients and the public.
Because the U.S. system is grounded on state-based judicial regulation of the legal profession, progress in the United States must be made on a state-to-state basis. Trade negotiations such as the TTIP are useful mechanisms to facilitate dialogue on liberalization, and the ABA welcomes the opportunity to work closely with the CCBE to ensure that clients have the legal services access they need in both the U.S. and the EU. As was discussed in Boston, we believe that the more constituencies that speak to regulators here and in the EU about these important issues, the more effective we are likely to be in reducing unnecessary barriers.
We have carefully studied the CCBE’s requests to the United States and look forward to further discussion regarding how best to implement cross-border practice. It is important to emphasize that, unlike the CCBE, the ABA does not have the authority to speak for or make commitments on behalf of the lawyer regulatory authorities or state bar associations
Terry-Silver Materials (5-2017), p. 49 in the United States, so we cannot provide a response or a similar request that would represent the “U.S.” position. However, we can provide information to the CCBE (and to state regulators) on policies adopted by the ABA (and implemented in a number of U.S. jurisdictions) that address many of the relevant issues, and we can work with the CCBE to stimulate a dialogue in the U.S. and the EU about these issues.
The ABA has adopted policies designed to allow lawyers to effectively serve their clients, at home and abroad, through cross-border practice. To facilitate this goal, the ABA has adopted a number of Model Rules and policies that seek to facilitate access by foreign lawyers in the United States, including: (1) the Model Rule for the Licensing and Practice of Foreign Legal Consultants; (2) the Model Rule for Temporary Practice by Foreign Lawyers; (3) the Model Rule on Pro Hac Vice Admission; and (4) Model Rule of Professional Conduct 5.5(d) and (e), along with the Model Rule for Registration of In- House Counsel; and (5) the ABA Model Rule on Practice Pending Admission that applies to foreign legal consultants. Section a(3) of the Model Rule for Temporary Practice includes lawyers who represent clients in mediation and international arbitration.
The only topic addressed in the CCBE “requests” for which the ABA does not have a policy position is the issue of lawyers who serve as neutrals in international arbitration and mediation, as opposed to representing clients. The ABA has adopted a policy, however, that favors recognition of freedom of parties to international commercial arbitration proceedings to choose as their representatives in those proceedings lawyers who need not be admitted to practice law in the jurisdiction where the arbitration proceeding takes place. All of these policies are available on the webpage of the ABA Task Force on International Trade in Legal Services: http://www.ambar.org/itils.
As the ABA urges adoption of these Model Rules by all U.S. jurisdictions, we would also encourage that similar access to those found in the CCBE “requests” be afforded to U.S. lawyers and law firms in foreign jurisdictions. We note that the CCBE request indicates that issues relating to pro hac vice admission, in-house counsel registration, full admission, and the Services and Establishment Directives are considered “off the table.” These issues represent serious impediments to the ability of some U.S. lawyers and law firms to engage in providing legal services in the EU, and the latter two are of particular concern because they are based solely on the question of nationality rather than competence. We hesitate to foreclose further discussion on these issues and propose that they remain on the agenda for consideration. Because of the leadership role held by both of our organizations, we believe that all issues related to cross-border legal practice should be available for discussion, even if some of these issues are not ultimately included in our respective government’s TTIP “requests.” We believe that both organizations share the goal of reducing unnecessary trade barriers and promoting a dialogue regarding which barriers might – or might not – be considered unnecessary in light of the goals of lawyer regulation.
In sum, the ABA welcomes the opportunity to work closely with the CCBE to ensure that clients have the legal services access they need in both the U.S. and the EU. We welcome the CCBE’s letter and believe that it provides a useful basis for ongoing discussions in
Terry-Silver Materials (5-2017), p. 50 the U.S. and in Europe. As our combined letters reveal, the ABA and the CCBE agree on a number of policy issues with respect to cross-border practice. We believe that our organizations can serve an effective role in gathering data about the barriers that lawyers face and working with a variety of stakeholders, including regulators, to help them understand the issues and remove any unnecessary barriers.
We look forward to working with the CCBE as the trade negotiations progress, as well as in other efforts to ensure that the interests of our respective lawyers are addressed.
Sincerely,
William C. Hubbard
Terry-Silver Materials (5-2017), p. 51 Law Firm General Counsel Roundtable (May 1, 2017) Resources Related Collaboration with ABA ITILS
Professor Laurel S. Terry Penn State University, Dickinson Law [email protected]
Professor Carole Silver Northwestern Pritzker School of Law [email protected]
II. EXAMPLES OF ITILS’ ACTIVITIES
8. Facilitating “Summits” between US Lawyers and Regulators & those in Other Countries a) 2016 Roundtable: Going Global: Association between Local and Foreign Lawyers and Law Firms b) Agenda from the EU-US Legal Services Roundtable (2014)
c) Agenda from the Trans-Pacific Bar Leaders’ Summit (2013)
d) Agenda from the U.S.-Australia Legal Services Meeting (2006)
e) Other Summits (includes the 2nd Asian Summit on Legal Services for Bar Leaders (2007); 4th U.S.-E.U. Summit; and law review excerpts summarizing the ABA’s “summits”
Terry-Silver Materials (5-2017), p. 52 Going Global: Association between Local and Foreign Lawyers and Law Firms
SPONSORED BY: ABA TASK FORCE ON INTERNATIONAL TRADE IN LEGAL SERVICES
Saturday, August 6, 2016 10:00am — 11:30am
St. Regis San Francisco Impressionist Room (4th Floor)
This non-CLE session will feature a roundtable discussion on issues relating to the regulation of forms of association between domestic and foreign lawyers and law firms around the world. According to the 2014 IBA Global Regulation and Trade in Legal Services Report, 80% of the countries surveyed allow local lawyers to employ foreign lawyers, 35% allow for- eign lawyers to employ local lawyers, and 56% permit local and foreign lawyers to enter into partnership. Panelists will present information on the forms of association currently permit- ted in selected countries and encourage an interactive discussion among attendees about the advantages and disadvantages of various regulatory models.
Panel:
Stephen Denyer, Law Society of England & Wales David Tang, K&L Gates Professor Laurel Terry, Penn State Dickinson Law
For more information contact: Kristi Gaines, at 202-662-1763 or [email protected].
Terry-Silver Materials (5-2017), p. 53 EU-US LEGAL SERVICES ROUNDTABLE Saturday, August 9, 2014, 10:00 – 11:30am EDT Hilton Boston Back Bay, Maverick A/B
AGENDA I. Welcome and Introductions - Stephen P. Younger, Chair, ABA Task Force on International Trade in Legal Services (2 minutes) II. Overview (8 minutes total) Status of Transatlantic Trade and Investment Partnership (TTIP) Negotiations – Professor Laurel Terry (5 minutes) Roundtable Discussion Format and Introductions – Professor Robert Lutz (3 minutes) III. Speakers (5 minutes per speaker, 30 minutes total) Jonathan Goldsmith Secretary General, Council of Bars and Law Societies of Europe (CCBE) Topic: info on CCBE, TTIP, and CCBE request to US
Laurel Terry Professor, Penn State Dickinson School of Law Topic: Status of US requests to EU/CCBE, general consistency of CCBE request with ABA model policies
Hugh Verrier Chairman, White & Case LLP Topic: view from global firm, impact of globalization and access on practice and operations,
Andrew Caplen President, Law Society of England & Wales Topic: overview of access in the UK and UK access to US, and what Law Society would like to see from TTIP
Péter Köves Senior Partner, Lakatos, Koves and Partners, Hungary Topic: overview of access in the EU and relevant issues
Glenn Lau-Kee President, New York State Bar Association Topic: overview on access in NY, benefits of liberalization to NY IV. Audience Discussion (30-45 min)
General Goals: 1) Update participants on TTIP negotiations and impact on legal services 2) Present CCBE request to US for discussion and feedback 3) Provide a brief overview of current access in select EU and US jurisdictions 4) Discuss mechanisms for progress on liberalization, via the trade negotiations, bar-to-bar engagement or by other means.
Terry-Silver Materials (5-2017), p. 54 Terry-Silver Materials (5-2017), p. 55 Terry-Silver Materials (5-2017), p. 56 Terry-Silver Materials (5-2017), p. 57 The ITILS Summits are described in a number of the TRA S ATIO AL LEGAL PRACTICE EAR- I -RE IEW articles which are available at this webpage: https://wor s.bepress.com/laurel terry/
Laurel S. Terry Transnational Legal Practice [2016] 51 ABA/SIL (n.s.) (2017)(forthcoming)
Laurel S. Terry Transnational Legal Practice [2015] 50 ABA/SIL (n.s.) 531 (2016)
Laurel S. Terry and Carole Silver Transnational Legal Practice [2014] 4 ABA/SIL (n.s.) 413 (2015)
Laurel S. Terry Transnational Legal Practice (International) [2010-2012] 47 Int’l L. 485 (2013)
Laurel S. Terry Transnational Legal Practice (United States) [2010-2012] 47 Int’l L. 4
Laurel S. Terry Carole Silver Ellyn Rosen Transnational Legal Practice: 2009 Year-in-Review 44 Int’l L. 563 (2010)
Laurel S. Terry Carole Silver Ellyn Rosen Carol A. eedham Jennifer aworth McCandless Robert E. Lut and Peter D. Ehrenhaft Transnational Legal Practice: 2008 Year-in-Review 43 Int’l L. 43(200 )
Laurel S. Terry Carole Silver Ellyn Rosen Carol eedham Robert E. Lut Peter D. Ehrenhaft Transnational Legal Practice: 2006-07 Year-in-Review 42 Int’l L. 833 (2008)
Robert E. Lut Philip T. on Mehren Laurel S. Terry Peter Ehrenhaft Carole Silver Clifford J. endel Jonathan Goldsmith and Masahiro Shimojo Transnational Legal Practice Developments 2004 3 Int l Law. 61 (2005)
Robert E. Lut Philip T. von Mehren Laurel S. Terry Peter Ehrenhaft and Carole Silver Transnational Legal Practice: Cross- Border Legal Services: 2002 Year-in-Review, 36 International Lawyer 87 (2003)
Terry-Silver Materials (5-2017), p. 58 *OUhM- TRANSNATIONAL LEGAL PRACTICE 961
system, the new Legal Services Board has now been appointed; as required by the legisla- tion, this Board has a non-lawyer chair and a non-lawyer majority.113 The U.K. Solicitors Regulation Authority (SRA) and the Bar Standards Board (BSB), both of which are “ap- proved regulators” under the new Act, have issued a number of consultations in connec- tion with the October 2007 Legal Services Act.114 With respect to the third component of the legislation, which concerns alternative business structures, the SRA issued regulations that took effect in March 2009 and will permit non-lawyers to hold up to 10 percent of the equity interest in a law firm; these non-lawyer owners, however, are not permitted to be passive investors.115 The regulations that would allow passive equity investment (and pos- sibly publicly traded law firms) are not expected until 2011 or 2012. This third compo- nent of the U.K. Legal Services Act has been the subject of intense interest in the United States as well as the United Kingdom since its adoption.116
III. New Developments
This section describes several ABA and U.S.-related developments and several transna- tional legal practice “hot topics.”
A. ABA ACTIVITIES
In August 2008, the ABA House of Delegates adopted a resolution supporting the con- tribution that negotiated liberalization of international trade makes to the rule of law.117 The ABA House of Delegates also adopted a resolution relevant to the FATF negotia- tions.118 During the 2008 ABA Annual Meeting, the ABA also sponsored several “sum- mits.” In prior years, the ABA’s Task Force on International Trade in Legal Services (ITILS), which is tasked with assisting the coordination of the ABA’s involvement with issues relating to the international multijurisdictional practice of law,119 successfully or-
113. See UK Ministry of Justice, Jack Straw appoints new Legal Services Board (July 17, 2008), http:// www.justice.gov.uk/news/newsrelease170708a.htm (last visited Dec. 15, 2008). 114. See SRA.org, Solicitors Regulatory Auth., Consultations, http://www.sra.org.uk/sra/consultations.page (last visited Dec. 15, 2008); Bar Standards Bd., Consultations, http://www.barstandardsboard.org.uk/consul- tations/ (last visited Dec. 15, 2008). 115. See Solicitors Regulation Auth., Solicitors’ Code of Conduct (LDPs and Firm Based Regulation) Amendment Rules (entered into force Mar. 31, 2009), http://www.sra.org.uk/sra/legal-services-act/lsa-new- rules.page. 116. The U.K. Act has been featured at a number of conferences in the past year. See, e.g., Symposium, The Future of the Global Law Firm, supra note 7; Symposium, Facing a Transformed Global Legal Landscape: An Introduction to the UK Legal Services Act, Am. Law. Media Law Firm Leaders’ Forum, New York (Oct. 22, 2008); Symposium, Legal Services Reform in the United Kingdom: What Does It Mean for Firms with a Foot on Both Sides of the Pond?–Other ABS Initiatives, Ass’n of Prof’l Responsibility Lawyers, Amsterdam (May 5, 2008). 117. ABA Res. 108B (Aug. 2008) (“RESOLVED, That the American Bar Association supports the contribu- tion that the negotiated liberalization of international trade in goods and services, through government-to- government trade agreements, makes to the spread of the Rule of Law, both at the state-to-state level and within participants’ domestic legal systems.”). 118. ABA Res. 300 (Aug. 2008), available at http://www.abavideonews.org/ABA531/pdf/hod_resolutions/ 300.pdf (last visited Dec. 10, 2008). 119. See Terry, supra note 17, at 841 n. 47-48.
SUMMER 2009
Terry-Silver Materials (5-2017), p. 59 962 THE INTERNATIONAL LAWYER *OUhM- ganized European and Asian “summits” of legal services leaders.120 Encouraged by these prior events, in 2008, ITILS organized separate meetings with Korean and Indian bar leaders. Summit participants discussed the issues and concerns related to transnational practice. ITILS also convened a meeting of representatives of U.S. law firms with multi- ple foreign offices to explore the issues facing these law firms. Leaders in the ABA and its Section of International Law have also had ongoing discussions with the leaders of the CCBE.121 Other ABA sections have been active in areas related to transnational legal practice. In 2008, the Section of Legal Education and Admissions to the Bar formed an “International Committee” that will make recommendations to the Council.122 In August 2008, the ABA House of Delegates adopted a Model Rule for Registration of In-House Counsel. In a compromise before the vote, a number of individuals and entities agreed not to oppose the proposed Model Rule if the ABA Section of Legal Education and Admissions to the Bar would consider developing a model registration rule for foreign in-house counsel. Addi- tionally, several commentators, including Professor Steve Gillers, have called on the ABA to develop a Model Rule on Admission of Foreign Lawyers.123
B. NON-ABA U.S. DEVELOPMENTS
In November 2008, members of the Asia-Pacific Economic Cooperation (APEC) agreed to fund a legal services initiative.124 In August 2008, APEC’s Trade and Invest- ment Committee approved a legal services initiative designed: to “facilitate the provision of services in foreign and international law” by conducting an inventory of APEC mem- bers’ existing requirements for the licensing of foreign lawyers to supply services in for- eign law and international law; to work in associations with local professionals; to identify best practices; and to establish an APEC Legal Services Framework to reduce impedi- ments to the provision of services in foreign and international law among APEC economies.125 Another important set of developments came from the Conference of Chief Justices (CCJ). In January 2008, the CCJ adopted a resolution endorsing the ABA’s Model Rule for Temporary Practice by Foreign Lawyers.126 This resolution is worth reading in full because it shows the CCJ’s understanding of many of the issues related to global legal practice:
120. Id. at 841-42. 121. See id. at 842. 122. See Memorandum from Randy Hertz, Section Chair, ABA Section of Legal Educ. and Admissions to the Bar, & Hulet H. Askew, ABA Legal Educ. Consultant, to Council Members of the ABA Section of Legal Educ. and Admissions to the Bar (Sept. 18, 2008) (on file with author) (announcing the creation of a special committee on international issues). 123. Gillers, supra note 7. 124. See E-mail from Todd Nissen, Dir. of Servs. Trade Negotiations, Office of the U.S. Trade Representa- tive, to author (Dec. 5, 2008) (announcing the funding decision) (on file with author). 125. See APEC, PROJECT PROPOSAL: PROFESSIONAL SERVICE INITIATIVE: LEGAL SERVICES FACESHEET, CONSOLIDATED TEXT FINAL (on file with author). 126. Conf. of Chief Justices Res. 6 (Jan. 30, 2008), available at http://ccj.ncsc.dni.us/resol6AdoptionRules TemporaryPractice.html (regarding adoption of rules on temporary practice by foreign lawyers).
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Since the last Year-in-Review, the ITILS Task Force, in cooperation with the ABA Sec- tion of International Law’s Transnational Legal Practice Committee, convened several Summit Meetings with foreign bar leaders from various regions to discuss differences in legal services regulation and to identify areas of agreement and disagreement about goals and approaches. At the 2006 and 2007 ABA Annual Meetings, the E.U.-U.S. Legal Ser- vices Summits were co-hosted by the Council of the Bars and Law Societies of Europe (CCBE), and the Asia-U.S. Legal Services Summits included lawyers and bar leaders from Australia, China, India, Indonesia, Japan, Korea, Singapore, and Vietnam.49 The ITILS Task Force also convened discussions with Latin American bar leaders at the Fall Meet- ings of the Section of International Law in Houston in 2005 and in Miami in 2006. The ITILS Task Force also communicates regularly with the International Bar Association (IBA), the Union Internationale des Avocats (UIA), the Law Society of England and Wales, and the Law Council of Australia to exchange information, coordinate initiatives, and discuss strategies. During its 2006 Annual Meeting, the ABA adopted a policy regarding GATS Track 2 “disciplines” issues50 and revised its Model Rule for Foreign Legal Consultants in the United States, discussed in greater detail below. In August 2007, the House of Delegates rejected a resolution proposed by the Section of International Law to encourage the PTO to eliminate its reliance on citizenship, residence, or immigration status in its licensing regulations (in the hope that these changes would be reflected in any revised U.S. GATS “offer”).51 The Council of the Section thereafter voted to pursue discussions with other Sections with a view to the possible reintroduction of some of the policies expressed in the defeated resolution. b. IBA Initiatives
During its September 2005 Annual Meeting in Prague, the IBA began a discussion about two related issues: whether the IBA should encourage all GATS member countries to make specific commitments regarding access to their markets for legal services and the related concept of whether all countries should permit foreign lawyers some rights of practice in that country, without requiring the foreign lawyers to obtain a local Host State law license. As a result of these discussions, the IBA WTO Working Group drafted a the National Conference of Bar Examiners, the National Association of Bar Executives, and the National Organization of Bar Counsel. 49. See ABA Section of Int’l Law, 2007 Annual Meeting Agenda (specifically, “Asian Summit: Bar Leaders on Regulation of Transnational Legal Services” and “European Union Legal Services Summit”), http://www. abanet.org/intlaw/annual07/agenda_meeting.html (last visited Mar. 26, 2008). 50. See RECOMMENDATION 105, supra note 35. 51. ABA SECTION OF INT’L LAW, RECOMMENDATION 118A (2007), available at http://www.abanet.org/ leadership/2007/annual/docs/hundredeighteena.DOC. The defeated resolution stated: RESOLVED, That the American Bar Association urges the U.S. Patent and Trademark Office (USPTO) to amend 37 CFR §§ 11.6 and 11.7 to permit the registration and continued qualifica- tion to practice before the USPTO of any attorney who: (1) demonstrates the necessary scientific, technical, character and language qualifications; and (2) passes the USPTO examination for registration without regard to the citizenship, country of residence, or immigration status of such person. Id.
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letters that required a review of selected state measures, including legal services mea- sures.84 The U.S.-Republic of Korea FTA, which is often referred to as KORUS, gener- ated the most interest in the U.S. legal community because Korea included its new foreign legal consultant rule within its commitments.85 At the Asian Summit meetings, Korean bar representatives claimed that Korea would follow the path taken by Japan in liberaliz- ing access to the local market (including full rights of partnership with and employment of or by local lawyers) within a fraction of the nearly twenty-five years these reforms took in Japan. In addition, significant efforts have been made to implement the 2004 U.S.-Australia FTA provisions applicable to legal services.86 This FTA includes an Annex on Profes- sional Services requiring the Parties to establish a Working Group to facilitate the FTA activities.87 In May 2006 in Washington D.C., representatives from the U.S. and Austra- lian governments, bar associations, and lawyer regulatory organizations met to discuss lawyer regulatory issues.88 In addition, the Australian government and the Law Council of Australia demonstrated a strong interest in making U.S. jurisdictions more accessible to Australian lawyers through visits by delegates to meet with the Conference of Chief Jus- tices (CCJ) and representatives from the highest courts in Georgia, Delaware, New York, and California.89 The cooperative efforts of U.S. and Australian participants have yielded a number of significant developments.90 For example, the FTA, promising “temporary entry” rights to
United States, the District of Columbia, and Puerto Rico”); U.S.-Oman FTA, supra note 81, U.S. annex I, at 14 (“All existing non-conforming measures of all states of the United States, the District of Columbia, and Puerto Rico”). 84. See U.S.-Peru FTA, supra note 81, Side Letter on State Measures; U.S.-Colombia FTA, supra note 81, Side Letter on State Measures. The side letters indicate, inter alia, that within one year of the agreement entering into force, the United States would initiate a review of state measures in New York, New Jersey, Florida, California, Texas, and the District of Columbia; that the United States would review measures re- quiring citizenship or permanent residency; and that the United States would report the results of the review to the Government of Peru and the Government of Colombia, respectively. 85. See U.S.-Korea FTA, supra note 81, annex II, at 44. 86. United States-Australia Free Trade Agreement, U.S.-Austl., ch. 10, annex 10-A, Mar. 3, 2004, available at http://www.ustr.gov/Trade_Agreements/Bilateral/Australia_FTA/Final_Text/ Section_Index.htm [herein- after U.S.-Australia FTA]. For information about the dates of House and Senate passage and presidential approval of this FTA, see generally USTR, Australia FTA Press Releases, http://www.ustr.gov/Trade_Agree- ments/Bilateral/Australia_FTA/press_releases/Section_Index.html (last visited Mar. 26, 2008). The commit- ment is modeled on a similar provision in NAFTA that resulted in an aborted effort to reach a detailed agreement between the ABA and the Mexican and Canadian bar associations. 87. U.S.-Australia FTA, supra note 87, annex 10-A, para. 5. 88. Laurel S. Terry, Current Developments Regarding the Gats And Legal Services: The Suspension of the Doha Round, “Disciplines” Developments, and Other Issues, 76 B. EXAMINER 27, 29 (2007). The ABA Section of Inter- national Law’s Committee on Transnational Legal Practice, in cooperation with the ABA Task Force on International Trade in Legal Service, coordinated the efforts to notify and encourage the appropriate U.S. representatives to attend. Each side prepared briefing papers for the other regarding lawyer qualification rules and rules governing foreign lawyers. This event was the first and only FTA-related legal services meet- ing involving representatives of the relevant legal profession bodies from each country. 89. The Conference of Chief Justices (CCJ) consists of the highest judicial officer in each U.S. state and territory—typically the Chief Justice of the state supreme court. Conference of Chief Justices, About CCJ, http://ccj.ncsc.dni.us/about.html (last visited Mar. 26, 2008). 90. See Conference of Chief Justices, Resolution 7 Regarding Authorization for Australian Lawyers to Sit for State Bar Examinations (Feb. 2007), http://ccj.ncsc.dni.us/LegalEducationResolutions/resol7Australian LawyersStateBarExams.html [hereinafter Resolution 7]; Conference of Chief Justices, Resolution 8 Regard-
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[t]his Chapter does not impose any obligation on a Party with respect to a national of the other Party seeking access to its employment market, or employed on a permanent basis in its territory, 9 and does not confer any right on that national with respect to that access or employment. '
At the same time, article 10.9 and annex 10-A encourage the development of standards 92 of mutual recognition of the qualifications necessary to provide professional services.
C. STATE REGULATORY CONCERNS
During 2004, various state bar regulatory organizations expressed serious concerns about the implications of international trade agreements on the power of states to regulate the practice of law, and the states' role with respect to the negotiation of specific commitments on legal services under the GATS. 93 The USTR has assured states officials that the rights and responsibilities of the States to regulate the practice of law within their borders are not impaired, but that the United States will "bind" in the GATS the rules they do adopt to provide "market access" to foreign lawyers. While the USTR's "offers" of state regulations are based on existing regulatory regimes a state is free to alter its regulation by making it less liberal or more burdensome, even after the U.S. is "committed," Particularly if the new rule is non-discriminatory and is adopted pursuant to "precautionary principles." But if a foreign country correctly claims breach of its privileges under the commitment, the United States may be subject to the affected party's suspension of its commitments to the United States. The USTR is required to consult with its Intergovernmental Policy Advisory Committee on Trade (IGPAC) a statutory advisory committee comprised of state and local government officials, 94 and hopes to establish an ongoing constructive dialogue with state courts and the National Center for State Courts.
95 D. THE ROLE OF THE AMERICAN BAR ASSOCIATION
1. Increasing Dialogue During 2004, the Transnational Legal Practice Committee (TLPC) of the Section of International Law worked to foster dialogue among the many stakeholders-both in the United States and abroad-with respect to the multijurisdictional practice of law. At the Annual Meeting in August 2004, the TLPC convened a trade in "Summit" of state bar and ABA leaders and leaders of the CCBE and the Law Society of England and Wales. At the Section's Fall 2004 Meeting in Houston, Texas, TLPC organized an "Americas Roundta- ble," of bar representatives from major U.S. states (California, New York, Texas, Florida) and from Canada, Mexico, Venezuela, Argentina, Peru, and Brazil, to discuss various bar-
91. Free Trade Agreement, May 18, 2004, U.S.-Austl., Art. 10.1(5), availableathttp://www.dfat.gov.au/trade/ negotiations/usfta/final-text/index.hunl. 92. Id. 93. E.g., the National Center for State Courts and the Conference of State ChiefJustices; See Leonard Post, States Pressured to Admit Foreign Lawyers (Feb. 8, 2005), available at http://www.law.com/jsp/article.jsp?id= 1107783316649. 94. Bilaterals, About the US Government's Trade Polity Advisoiy Committee System (Nov. 5, 2004), availableat http://www.bilaterals.oreg/article.php3 ?id-article = 79. 95. See also supra text accompanying notes 14-16.
SUMMER 2005
Terry-Silver Materials (5-2017), p. 63 638 THE INTERNATIONAL LAWYER riers in these jurisdictions to foreign lawyer practice and ways by which such restraints might be lessened. Finally in November, with the reconstituted ABA GATS Task Force, it organized a meeting in Washington, D.C. with USTR personnel responsible for legal ser- vices negotiations in the GATS, bar leaders from interested U.S. states, ABA representatives from the Center for Professional Responsibility and related ABA entities, and leaders of the National Center for State Courts, National Organization of Bar Counsel, the Industry Trade Advisory Committee in Services, and the Coalition of Service Industries. The goal of the meeting was to create communication channels between the U.S. legal profession and the U.S. government in order to assist the government in advancing the interests of U.S. lawyers in its trade negotiations. 2. Re-formation of ABA GATS Task Force The year 2004 also witnessed the re-formation of the ABA GATS Task Force. Originally established in 2003, the Task Force was re-activated to address the issues involving the impact that the ongoing GATS negotiations may have on the provision of legal services by U.S. lawyers and those from other countries. As an ABA-wide entity, it draws its member- ship from a variety of ABA sections and groups. One of its first acts was the issuance of a mission statement, which effectively outlines the tasks it plans to undertake in the. The Task Force will: (1) monitor the GATS negotiations and the negotiations of other international trade agreements that involve the United States and the provision of legal services; (2) coordinate the ABA's positions on issues relating to the provision of legal services by U.S. lawyers and throes from other countries in foreign jurisdictions; (3) advise the USTR of existing ABA policies relating to these issues and of the ABA's position on relevant aspects of the negotiations; (4) develop policy recommendations for the ABA and take other actions as may be nec- essary to carry out its mission; (5) assist other ABA entities in the implementation of ABA policies relating to the multi- jurisdictional practice of law in an international context; and (6) educate and engage in outreach to interested entities and individuals relating to the status of the GATS and other international trade agreement negotiations while pro- viding those individuals and entities with a mechanism to transfer their input to the ABA for consideration and study.96
96. The current roster of the Task Force includes: Don DeAmicis (Chair); Andrew Markus (Vice-Chair); Dennis Lehr (Business Law); Lindsay Meyer (Administrative Law); Philip T. von Mehren (International Law); Hon. Elizabeth Lacy (Legal Education); A. Stepherns Clay (Antitrust); Alice Richmond (NCBE); Carolyn Lamm (Board of Governors); Laurel S. Terry (Center for Professional Responsibility); Seth Rosner (CPR); Peter Ehrenhaft (ITAC Advisory Committee); Robert E. Lutz (International Law); and David Rivkin (Litigation).
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Terry-Silver Materials (5-2017), p. 64 Law Firm General Counsel Roundtable (May 1, 2017) Resources Related Collaboration with ABA ITILS
Professor Laurel S. Terry Penn State University, Dickinson Law [email protected]
Professor Carole Silver Northwestern Pritzker School of Law [email protected]
III. AREAS WHERE ITILS AND THE GENERAL COUNSEL ROUNDTABLE MIGHT COLLABORATE
9. Excerpts from the ITILS Roster (showing the large number of liaisons and special advisors - the GC Roundtable could join this group)
10. Carole Silver, What We Know and Need to Know about Global Lawyer Regulation, 67 S. Carolina L. Rev. 461 (2016) (full article distributed separately)
11. Aug. 2016 ABA Annual Meeting Materials Related for the “Association” Roundtable, (ITILS Chair & KL Gates Partner David Tang thought the GC Roundtable might want to collaborate on the Association issue. See www.tinyurl.com/laurelterryslides.)
12. Map sent by the CCBE to the ABA ITILS Showing Many US States that do not Allow “Association” (using data provided by the states themselves to the IBA)
13. Laurel Terry’s “On the Ground” Association Map (which was prepared as a result of collaboration that arose from the Jan. 2015 GC Roundtable session in Atlanta that she attended); see https://tinyurl.com/laurelterrymap2
Terry-Silver Materials (5-2017), p. 65 Steven M. Ric man Carole Silver Clark Hill PLC orthwestern University School of Law Ste. 102 375 East Chicago Avenue 210 Carnegie Center Chicago, IL 60611‐3069 Princeton, 8540 (312) 503‐1772 (609) 785‐2911 silver law.northwestern.edu srichman clarkhill.com Jo n S. S ilton Anna illiams S avers Perkins Coie LLP Cline Williams Professor of Citi enship Law Ste 201 254 Law College 1 E Main St University of ebraska, Lincoln, E 68583 Madison, WI 53703‐5118 (402) 472‐2194 (608) 663‐7474 annashavers.aba gmail.com skilton perkinscoie.com
LIAISONS AND ADVISORS
Timot Brig t ill Don DeAmicis Wiley Rein Fielding LLP Georgetown University Law Center 1776 K St W 600 ew ersey Avenue .W. Washington, DC 20006‐2304 Washington, DC 20001 (202) 719‐3138 dsdeamicis gmail.com tbrightbill wrf.com Re Goodeno Pa l Carlin Parsons Behle Latimer Executive Director 50 West Liberty Street Maryland State Bar Association Suite 500 520 West Fayette Street Reno, 89501 Baltimore, MD 21201 (775) 323‐1601 (410) 685‐7878 RGoodenow parsonsbehle.com pcarlin msba.org Ben Greer ee a C in Alston Bird Ingram U ek Gainen Caroll One Atlantic Center Bertolotti 1201 West Peachtree Street 250 Park Avenue Suite 4900 ew ork, 10177 Atlanta, GA 30309‐3424 (202) 213‐3143 ben.greer alston.com yeewah.chin gmail.com
Terry-Silver Materials (5-2017), p. 66 $BSPMF4JMWFS 8IBU8F,OPXBOE/FFEUP,OPXBCPVU(MPCBM-BXZFS3FHVMBUJPO 4$BSPMJOB-3FW GVMMBSUJDMFEJTUSJCVUFETFQBSBUFMZ
WHAT WE KNOW AND NEED TO KNOW ABOUT GLOBAL LAWYER REGULATION
Carole Silver*
I. INTRODUCTION
Global lawyer regulation is a messy topic. It both challenges the definition of what is under review and complicates the job of determining the scope of relevant investigation. This messiness relates to foundational issues of what ‘global’ means, who is considered a ‘lawyer,’ and even what constitutes ‘regulation.’ In addition and equally relevant, an increasingly diverse set of actors and organizations are involved in producing legal services in a global context. On one hand, simply describing the identities and the scope of services provided by these actors and organizations guides policymakers interested in considering what they know and should know about the focus of their policy- making and regulatory efforts. On the other hand, understanding how regulation shapes the conduct of participants in the global market for legal services would offer insight relevant to thinking through the appropriate balance between overly burdensome regulation that is certain to undermine competitiveness and an approach that is so superficial as to result in exposing the public to risks from activity and actors who fall outside of the regulatory boundaries.1 Messiness aside, the topic of global lawyer regulation is important, and getting it wrong likely will have significant consequences. The market for global lawyering is quite lucrative from the U.S. perspective. One way to measure this market is through statistics on international trade in legal services gathered by the U.S. Bureau of Economic Analysis. According to the Bureau’s October 2015 report, the United States exported more than nine billion dollars in legal services in 2013, which reflects an increase of almost $800 million over 20122 and substantially outpaces imports of legal services, which amounted to nearly two billion dollars in 2013.3 Another measure of the vibrancy of the
* Professor of Global Law & Practice, Northwestern University School of Law. My thanks to the Commission’s Working Group on Data on Legal Services Delivery for inviting my contribution to this set of papers, and to Laurel Terry for helpful discussion about these matters. 1. Carole Silver, What We Don’t Know Can Hurt Us: The Need for Empirical Research in Regulating Lawyers and Legal Services in the Global Economy, 43 AKRON L. REV. 1009, 1078–79 (2010) [hereinafter What We Don’t Know]. 2. See U.S. BUREAU ECON. ANALYSIS, U.S. Trade in Services, by Type of Service, Table 2.1 (Oct. 15, 2015), http://www.bea.gov/iTable/iTable.cfm?ReqID=62&step=1#reqid=62&step= 6&isuri=1&6210=4&6200=160 (follow “International Services” hyperlink under “Table Type”; then follow “Table 2.1. U.S. Trade in Services, by Type of Service” hyperlink). With the exception of declines in 2009 and 2010, U.S. legal services exports have gone up every year since 2006. Id. (showing exports, in millions, of $5,256 (2006); $6,400 (2007); $7,317 (2008); $7,256 (2009); $7,247 (2010); $7,704 (2011); $8,2880 (2012); $9,030 (2013); and $9,104 (2014)). 3.Id. (showing imports, in millions, of $1,223 (2006); $1,536 (2007); $1,918 (2008); $1,639 (2009); $1,537 (2010); 1,943 (2011); $2,050 (2012); and $1,995 (2013)). For a discussion of activity related to transnational legal practice in 2014, see Laurel S. Terry & Carole Silver,
461
Terry-Silver Materials (5-2017), p. 67 ABA Annual Meeting 2016 Resources Related to “Association”
Professor Laurel S. Terry ([email protected]) Penn State University, Dickinson Law
1. IBA Global Regulation and Trade in Legal Services Report 2014, http://tinyurl.com/2014IBAReport
2. Note: CCJ and ABA Policies are Available on the Webpage of the ABA Task Force on International Trade in Legal Services (ITILS), http://tinyurl.com/ABAITILS
3. Conference of Chief Justices, Resolution #2 (2015) Encouraging States to Adopt Explicit Policies Regarding [Limited] Foreign Lawyer Admission & “Association” Rights http://www.americanbar.org/content/dam/aba/uncategorized/GAO/2015feb4_res2inboundlawyering.pdf
4. Nov. 19, 2014 Letter from ABA President William Hubbard to CCBE President Aldo Bulgarelli Regarding the CCBE’s Requests regarding the T-TIP Trade Negotiations, http://www.americanbar.org/content/dam/aba/uncategorized/GAO/2015jan15_ccbeletter.pdf
5. ABA Model Rule for the Licensing and Practice of Foreign Legal Consultants (originally adopted in 1993; most recently reaffirmed 2006) http://www.americanbar.org/content/dam/aba/migrated/2011_build/professional_responsibility/m odel_rule_licensing_foregn.pdf
6. ABA Standing Committee on Ethics and Professional Responsibility Formal Opinion 464 (Aug. 19, 2013): Division of Legal Fees With Other Lawyers Who May Lawfully Share Fees With Nonlawyers http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/formal_o pinion_464.authcheckdam.pdf
7. ABA Standing Committee on Ethics and Professional Responsibility Formal Opinion 01- 423: Forming Partnerships With Foreign Lawyers (Sept. 22, 2001)
8. Diane F. Bosse, Testing Foreign-Trained Applicants in a New York State of Mind, 84(3) Bar Examiner 31 (Dec. 2014), http://www.ncbex.org/assets/media_files/Bar-Examiner/articles/2014/830414-bosse.pdf
9. Mark I. Harrison & Mary Gray Davidson, The Ethical Implications of Partnerships and Other Associations Involving American and Foreign Lawyers, 22 Penn St. Int'l L. Rev. 639 (2004)
10. Laurel Terry, Map Showing Law Firms Located in U.S. States That Have At Least One Foreign Office (April 9, 2015)(using data provided by General Counsel Metrics, LLC.), (available as a link at www.tinyurl.com/laurelterryslides)
11. Laurel Terry, Map Showing Jurisdictions with Rules Regarding [the 5 Methods of Active] Foreign Lawyer Practice, http://tinyurl.com/laurelterrymap
12. Laurel Terry’s Presentation Slides (including the association slides from the 2016 ABA Annual Meeting), www.tinyurl.com/laurelterryslides Terry-Silver Materials (5-2017), p. 68 Overview of Remar s
Definition: What is Association Going Global The Issue of Association Association “on the ground” American Bar Association Annual Meeting San Francisco, August 6, 2016 “Association” policies
Professor Laurel S. Terry (LTerry psu.edu) Association issues Penn State University - Dickinson Law Carlisle, Pennsylvania
2
Association “on the Ground” What Do We Mean by “Association” Employment Local lawyers can employ “foreign” lawyers oreign lawyers/firms can employ “local” lawyers Partnership Local lawyers can be partners with “foreign” lawyers oreign lawyers/firms can have local lawyer partners Association involves RELATIONSHIPS Practice rights are governed by other rules E.g., LC I O Pro ac In-house full admission Data provided by General Counsel Metrics LLC based on April 2014 3 websites of law firms with 37 lawyers; tinyurl.com/terrymap2 4
More Evidence of Association Indirect Evidence of Association:
rom the 2014 AmLaw Global 100 issue:
“More than 25,000 In 2013 in N lawyers from Am Law 200 oreign-educated applicants were 2 of the exam pool firms work in foreign oreign-educated applicants came from 111 countries offices in more than 70 countries.” Between 2015 and 2015 47 500 foreign-educated applicants PASSED the ew or bar exam 5 6
Terry-Silver Materials (5-2017), p. 69 Policies CC Resolution 2 (201 ) The CCJ’s “Association” Language 6) ormal professional association between foreign and United “ The CCJ strongly encourages its members to States lawyers who are duly licensed in their home country (ABA Model Rule of Professional Conduct 5.4 and ABA adopt explicit policies that permit the following Model Rule for the Licensing and Practice of oreign Legal ualified activities by foreign lawyers as a Consultants allow such association) and means to increase available legal services and to 7) oreign lawyer employment of United States lawyers and facilitate movement of goods and services United States lawyer employment of foreign lawyers who are between the United States and foreign nations: duly licensed in the United States as a foreign legal consultant methods of active inbound practice by or in their home country (ABA Model Rule for the Licensing and Practice of oreign Legal Consultants provides that locally foreign lawyers AND association licensed lawyers may be employed by a law firm based in 7 another country (or lawyer based in another country). 8
ABA Statements & Policies Some Issues re Association Re the CCBE’s Some jurisdictions find association controversial Association E.g., the Bra ilian Bar’s position re the draft IBA TTIP “re uest” Association resolution Association is an issue in trade negotiations ote: Regulators in jurisdictions that have association gave some surprising answers here:
10
Regulators are Engaged in Int’l Dialogue Conclusion See Int’l Conf. Legal Regulators Sept. 2016 Association is an issue of interest conference in Washington D.C. As a practical matter it is uite common ABA Resolution on Regulatory Cooperation Recent events have highlighted the fact there See CCJ Resolutions re regulatory cooperation often is no explicit association provision See CCJ-sponsored international conf. calls Regulators need input from practicing See CCJ/ OBC/ CBE/ABA support of lawyers and clients International Conference of Legal Regulators In my view association benefits clients and See OBC’s Global Resources webpage the public IT’s ABOUT RELATIO S IPS See CBE’s annual meeting “int’l slot” 11 12
Terry-Silver Materials (5-2017), p. 70 /PUFCZ-BVSFM5FSSZ5IJTNBQXBTQSFQFBSFECZUIF$$#&VTJOHEBUBGPVOEJOUIF*#"(MPCBM-FHBM 4FSWJDFTSFQPSU.VDIPGUIBUEBUBXBTQSPWJEFECZ64SFHMBUPST4PNFPGUIFTUBUFTMJTUFEBTSFEPO BTTPDJBUJPOBSHVBCMZEJEOPUFYQMJDJUMZTBZJUXBTQSPIJCJUFECVUUIFZBMTPEJEOPUTBZJUXBTQFSNJUUFE/PUF UIBUUIF$$+SFTPVMUJPOFODPVSBHFTTUBUFTUPIBWFFYQMJDJUQPMJDJFTPOBTTPDJBUJPO EU-US Mutual Access in Legal Services
Map 1: Possibility of Limited Licence Lawyer in the USA and their scope of practice1
Map 2: Association
1 “Limited licence” can be understood as equivalent to “foreign legal consultant”. It is assumed that a State accepts limited licence when there is an explicit rule which allows foreign lawyers to practise international law and home country law in the host country.
Terry-Silver Materials (5-2017), p. 71 Law Offices per State That Also Have Foreign Offices
DC
100 or more Law offices 10-99 Law offices 1-9 Law offices Data for this map provided by General Counsel Metrics, LLC based on the websites of law firms with approximately 37 lawyers or more. This map shows the number of law offices in each state that also have at least one foreign office. This data implicates the issue that is often referred to as “association.”3
Law Firms With Foreign Offices
DC
21 jurisdictions that have firm(s) whose largest US office is in that jurisdiction & the firm has foreign office(s) 27 jurisdictions that have law firm(s) with foreign office(s) whose largest US office is outside of that jurisdiction
Data provided by General Counsel Metrics, LLC based on the websites of law firms with ≈ 37 or more lawyers. For 21 of the 48 US jurisdictions that have law firms in their juris- diction that also have foreign offices, that US jurisdiction has the firm’s largest US office.
Terry-Silver Materials (5-2017), p. 72 Law Firms Located in U.S. States That Have At Least One Foreign Office Prepared by Laurel S. Terry (April 9, 2015) based on data provided by General Counsel Metrics, LLC. General Counsel Metrics, LLC has created a database using information found on the websites of law firms that have approximately 37 lawyers or more and are located in U.S. jurisdictions. General Counsel Metrics LLC generously agreed to share pro bono information from its database with regulators. Each of the 145 law firms listed below had 37 or more lawyers listed on its website at the time of the General Metrics survey and also had one or more foreign offices. While the data does not show whether the non- U.S. offices included foreign lawyers who were law firm partners or associates, this is likely to be the case for many of these law firms. As the accompanying maps show, 47 states and the District of Columbia have law firms located in their jurisdiction that also have at least one office located in a foreign country. Five jurisdictions had more than 100 offices of firms that also had a foreign office; eighteen jurisdictions had 10-99 such offices; and twenty-five U.S. jurisdictions had between 1-9 such offices located in their state. For twenty-one U.S. jurisdictions, the law firm office located in their state is the office with the most lawyers – i.e., probably the main office. Because the General Metrics database does not include every law firm in the country, there may be additional law firms in each state that have a foreign office. This data strongly suggests implicit or explicit state policies that permit state-licensed lawyers to partner with, employ, or be employed both out-of-state lawyers and foreign lawyers. It also suggests that many clients NEED the services of both U.S. and foreign law offices. Akin Gump Dentons Kilpatrick Townsend Reed Smith Alston Bird Dickinson Wright King Spalding Richards Kibbe Andrews Kurth DLA Piper Kirkland Ellis Rogers Townsend Armstrong Teasdale Dorsey Whitney Kramer Levin Ropers Majeski Arnold Porter Drinker Biddle Ladas Parry Ropes Gray Baker Botts Duane Morris Latham Watkins Schulte Roth Baker McKenzie Edwards Wildman Lerner David Sedgwick Barger Wolen Faegre Baker Leydig Voit Seyfarth Shaw Becker Poliakoff Finnegan Henderson Littler Mendelson Shearman Sterling Benesch Friedlander Fish Richardson Locke Lord Sheppard Mullin Bingham McCutchen Foley Hoag Loeb Loeb Shook Hardy Blank Rome Foley Lardner Mayer Brown Shutts Bowen Boies Schiller Fragomen DelRey McDermott Will Sidley Austin Bracewell Giuliani Fredrikson Byron McGuireWoods Simpson Thacher Brennan Manna Fried Frank McKenna Long Skadden Arps Brown Rudnick Garvey Schubert Milbank Tweed Smith Gambrell Bryan Cave Genovese Joblove Miller Canfield Squire Sanders Butler Snow Gibson Dunn Miller Nash Steptoe Johnson Cadwalader Wickersham Goldberg Segalla Mintz Levin Strasburger Price Cahill Gordon Goodwin Procter Morgan Lewis Sughrue Mion Carlsmith Ball Greenberg Traurig Morris Manning Sullivan Cromwell Carroll Burdick Gunderson Dettmer Morrison Foerster Sullivan Worcester Chadbourne Parke Haynes Boone Nelson Brown Thompson Knight Clausen Miller Hodgson Russ Nixon Peabody Troutman Sanders Cleary Gottlieb Hogan Lovells Norton Rose Vandeventer Black Cooley Holland Knight Oblon Spivak Vedder Price Covington Burling Hughes Hubbard Ogletree Deakins Vinson Elkins Cozen O'Connor Hunton Williams O'Melveny Myers Watt Tieder Cravath Swaine Jackson Lewis Orrick Herrington Weil Gotshal Crowell Moring Jones Day Paul Hastings White Case Curtis Mallet K&L Gates Paul Weiss Williams Kastner D'Amato Lynch Katten Muchin Perkins Coie Willkie Farr Davis Polk Kaye Scholer Pillsbury Winthrop WilmerHale Davis Wright Keesal Young Proskauer Rose Wilson Sonsini Debevoise Plimpton Keller Heckman Quinn Emanuel Winston Strawn Dechert Kelley Drye Quintairos Prieto Wong Fleming Terry-Silver Materials (5-2017), p. 73 Zelle Hofmann
WHAT WE KNOW AND NEED TO KNOW ABOUT GLOBAL LAWYER REGULATION
Carole Silver*
I. INTRODUCTION
Global lawyer regulation is a messy topic. It both challenges the definition of what is under review and complicates the job of determining the scope of relevant investigation. This messiness relates to foundational issues of what ‘global’ means, who is considered a ‘lawyer,’ and even what constitutes ‘regulation.’ In addition and equally relevant, an increasingly diverse set of actors and organizations are involved in producing legal services in a global context. On one hand, simply describing the identities and the scope of services provided by these actors and organizations guides policymakers interested in considering what they know and should know about the focus of their policy- making and regulatory efforts. On the other hand, understanding how regulation shapes the conduct of participants in the global market for legal services would offer insight relevant to thinking through the appropriate balance between overly burdensome regulation that is certain to undermine competitiveness and an approach that is so superficial as to result in exposing the public to risks from activity and actors who fall outside of the regulatory boundaries.1 Messiness aside, the topic of global lawyer regulation is important, and getting it wrong likely will have significant consequences. The market for global lawyering is quite lucrative from the U.S. perspective. One way to measure this market is through statistics on international trade in legal services gathered by the U.S. Bureau of Economic Analysis. According to the Bureau’s October 2015 report, the United States exported more than nine billion dollars in legal services in 2013, which reflects an increase of almost $800 million over 20122 and substantially outpaces imports of legal services, which amounted to nearly two billion dollars in 2013.3 Another measure of the vibrancy of the
* Professor of Global Law & Practice, Northwestern University School of Law. My thanks to the Commission’s Working Group on Data on Legal Services Delivery for inviting my contribution to this set of papers, and to Laurel Terry for helpful discussion about these matters. 1. Carole Silver, What We Don’t Know Can Hurt Us: The Need for Empirical Research in Regulating Lawyers and Legal Services in the Global Economy, 43 AKRON L. REV. 1009, 1078–79 (2010) [hereinafter What We Don’t Know]. 2. See U.S. BUREAU ECON. ANALYSIS, U.S. Trade in Services, by Type of Service, Table 2.1 (Oct. 15, 2015), http://www.bea.gov/iTable/iTable.cfm?ReqID=62&step=1#reqid=62&step= 6&isuri=1&6210=4&6200=160 (follow “International Services” hyperlink under “Table Type”; then follow “Table 2.1. U.S. Trade in Services, by Type of Service” hyperlink). With the exception of declines in 2009 and 2010, U.S. legal services exports have gone up every year since 2006. Id. (showing exports, in millions, of $5,256 (2006); $6,400 (2007); $7,317 (2008); $7,256 (2009); $7,247 (2010); $7,704 (2011); $8,2880 (2012); $9,030 (2013); and $9,104 (2014)). 3. Id. (showing imports, in millions, of $1,223 (2006); $1,536 (2007); $1,918 (2008); $1,639 (2009); $1,537 (2010); 1,943 (2011); $2,050 (2012); and $1,995 (2013)). For a discussion of activity related to transnational legal practice in 2014, see Laurel S. Terry & Carole Silver,
461 462 SOUTH CAROLINA LAW REVIEW [VOL. 67: 461 market for global legal services is in cross-border law firm merger activity.4 According to a recent report, ninety-six global cross-border law firm mergers were announced in 2012 and fifty-six U.S. law firms opened at least one new office outside of the United States in 2012.5 Relatedly, in the period of 2011- 2012, one group of seventy-five U.S.-based law firms6 supported approximately 530 offices outside of the United States, where approximately 14,000 lawyers worked. And growth post-2008 has occurred in this segment of the market. For example, the American Lawyer’s 2014 Global 100 issue reported that more than 25,000 lawyers from the AmLaw 200 practiced in seventy countries.7 The global legal services market also relates to other sectors of the U.S. economy.8 Generally, higher education in the United States has experienced increasing interest from international students,9 a trend that is reflected in law school enrollment.10 This comes at a time when U.S. law schools are taking
Transnational Legal Practice, 49 ABA/SECTION OF INTERNATIONAL LAW (SIL), THE YEAR IN REVIEW: AN ANNUAL SURVEY OF INTERNATIONAL LEGAL DEVELOPMENTS 413 (Spring 2015), http://www.americanbar.org/content/dam/aba/uncategorized/international_law/inl_yir_2015_cpy.au thcheckdam.pdf 2015 [hereinafter Transnational Legal Practice]. 4. See GEO. L., CTR. FOR THE STUDY OF THE LEGAL PROFESSION, 2013 REPORT ON THE STATE OF THE LEGAL MARKET 8 (2013), https://www.law.georgetown.edu/continuing-legal- education/executive-education/upload/2013-report.pdf (stating that 2012 was a “banner year for global expansion of U.S. and international law firms”) [hereinafter 2013 STATE OF THE LEGAL MARKET]. 5. Id. The 2014 Report did not contain similar information about globalization. See generally GEO. L., CTR. FOR THE STUDY OF THE LEGAL PROFESSION, 2014 REPORT ON THE STATE OF THE LEGAL MARKET 2 (2014), https://peermonitor.thomsonreuters.com/wp-content/uploads/ 2014/01/2014_PM_GT_Report.pdf (reporting that 2013 was a “flat year for economic growth in U.S. law firms”). 6. The text refers to my ongoing study of the ways in which U.S.-based law firms engage in global practice. The research analyzes data gathered by hand from law firm websites regarding their practices outside of the United States; the data were drawn from firms’ professional profiles of lawyers working outside of the United States. Current data referred to in the text were gathered in 2011-2012. For most of the law firms studied, their jurisdictional foundation in the U.S. is beyond question. However, several law firms that historically were “U.S.-based” recently have merged with law firms based outside the United States, and their home jurisdiction might be ambiguous on this basis. Nevertheless, because these firms initially were U.S.-based firms, they continue to be included in the research. For a related study conducted with data gathered in 2006, see Carole Silver et al., Between Diffusion and Distinctiveness in Globalization: U.S. Law Firms Go Glocal, 22 GEO. J. LEGAL ETHICS 1431 (2009) [hereinafter Glocal]. 7. See Drew Combs, The Global 100: Outward Bound, AM. LAW., Oct. 22, 2014, at 67. 8. See generally U.S. INT’L TRADE COMM’N, RECENT TRENDS IN U.S. SERVICES TRADES, 2013 ANNUAL REPORT (July 2013) (discussing developments in the United States’ exports and imports of professional services, including legal services, medical services, and education). 9. According to the Institute for International Education, which tracks international education at the college, university, and post-graduate levels, “[t]he number of international students studying in the U.S. grew by 8% over the prior year and is now at a record high.” Open Doors Data, INST. OF INT’L EDUC. (2015), http://www.iie.org/Research-and-Publications/Open- Doors/Data/International-Students [hereinafter Open Doors Data]. 10. See Margaret Loftus, Drop in Applications Spurs Changes at Law Schools, U.S. NEWS & WORLD REP., Mar. 11, 2015, http://www.usnews.com/education/best-graduate-schools/top-law- schools/articles/2015/03/11/drop-in-applications-spurs-changes-at-law-schools.
2016] GLOBAL LAWYER REGULATION 463 measures to compensate for declining interest in legal education on the part of domestic applicants. Growth in both the proportion of international students enrolled in U.S. J.D. programs11 and the increase in the number and size of non- J.D. programs (particularly LL.M. programs, which traditionally have been the most popular degree program for international law students) is evidence of an international diversification of the student body in U.S. law schools.12 This growth also relates to an increase in the number of international applicants for bar membership, which in turn has resource implications for state admissions organizations.13
11. Based on data filed with the ABA Section of Legal Education and Admissions to the Bar in Standard 509 Information Reports, enrollment of nonresident aliens in J.D. programs has increased from 1.66% in 2011, to 2.37% in 2015. See ABA STANDARD 509 INFORMATION REPORTS, http://www.abarequireddisclosures.org/ [hereinafter STANDARD 509]. The term “nonresident alien” relates to noncitizens in the U.S. on a temporary visa, including a visa specifically directed to students, see, e.g., Resident Alien vs. Non-resident Alien, BRYN MAWR COLLEGE, http://www.brynmawr.edu/controller/documents/AlienvsNonresidentAlien.htm (last visited Apr. 4, 2016). Law schools ranked in the top 20 by U.S. News & World Report enroll a higher proportion of these students: in 2015, 4.95% of J.D. students were nonresident aliens compared to 2.87% in 2011. See id.; see also Coping with the Consequences of “Too Many Lawyers”: Securing the Place of International Graduate Law Students, 19 INT’L J. LEGAL PROFESSION 227, 229–30 (2012) (discussing the influx of international law students into U.S. law schools) [hereinafter Coping with the Consequences]. 12. See generally Coping with the Consequences, supra note 11, at 229–30 (discussing consequences of the growing numbers of all students, including international law students, in U.S. J.D. programs); Why are U.S. LL.M. Programs so Popular?, NAT’L JURIST (Nov. 19, 2014), http://www.nationaljurist.com/content/why-are-us-llm-programs-so-popular (“Law school revenues primarily come from tuition revenues, and revenues are down due to fewer U.S. students enrolling in the degree programs for the basic U.S. law degree, the Juris Doctor (J.D.). The U.S. economy has been down along with the demand for U.S. lawyers. Tuition has increased. Student loan debt has increased, with prospective students avoiding law school to avoid debt. U.S. law schools have been seeking ways to make up for lost revenue. One way is to create or expand enrollment for international LL.M. students who may not have the same worries that are driving J.D. enrollment downwards. The desire to increase law school revenue has triggered a proliferation of new LL.M. programs and triggered the expansion of existing LL.M. programs.”). Note, however, that the increase in LL.M. and non-JD programs involves growth directed to international and domestic students, and to law graduates and non-law graduates. 13. The proportion of individuals who take a U.S. bar exam and earned their legal education outside of the United States has increased to 7.9% in 2014 from 7.2% in 2010 and 4.4% in 2005. See Persons Taking and Passing the 2014 Bar Examination by Source of Legal Education, 84(1) B. EXAM’R, Mar. 2015, at 10, 13, http://www.ncbex.org/assets/media_files/Bar-Examiner/articles/ 2015/840115-abridged.pdf [hereinafter Persons Taking and Passing the 2014 Bar]; Persons Taking and Passing the 2010 Bar Examination by Source of Legal Education, 81 B. EXAM’R, Mar. 2011, at 1, 10, http://www.ncbex.org/dmsdocument/156; Persons Taking and Passing the 2005 Bar Examination by Source of Legal Education, 75 B. EXAM’R, May 2006, http://www.ncbex.org/pdfviewer/?file=%2Fdmsdocument%2F149. In New York, the jurisdiction with the largest number of internationally-educated applicants, 20.6% of first-time bar exam test takers in 2012 earned their legal education outside of the United States, id., compared to 25.2% in 2015. See New York State Bd. of Law Exam’rs, New York Bar Exam 2012 Statistics (2012), http://www.nybarexam.org/ExamStats/2012_NYBarExamStatistics.pdf; New York State Bd. of Law Exam’rs, New York Bar Exam 2015 Statistics (2015), http://www.nybarexam.org/ ExamStats/2015_NY_Bar_Exam_PassRates.pdf. 464 SOUTH CAROLINA LAW REVIEW [VOL. 67: 461
Related to the role of U.S. lawyers in the global legal services market is inbound investment activity.14 According to the Organization for International Investment,
In 2013 alone, international firms invested $236 billion in the U.S. economy, a 35% increase from 2012 . . . . More foreign direct investment dollars flowed to the United States last year than to any other single country in the world. International investment in the U.S. market topped other large markets, including China, Russia, Hong Kong, and Brazil. However, the World Investment Report shows foreign companies invested more in the larger European Union (EU) market than in the United States in 2013.15
Since investors often want to bring their own legal counsel as advisors—a practice that U.S.-licensed attorneys have capitalized on overseas by accompanying their U.S.-based clients in expansion—the way in which the lawyer regulatory framework enables or squelches foreign lawyers16 from representing their clients in their U.S.-activities is implicated. A last indication of the importance of globalization with regard to legal services relates to the increase in mobility of individuals.17 According to the Center for Immigration Studies, more than forty-two million immigrants entered the United States in 2014, compared to slightly more than thirty-one million in 2000.18 Relatedly, “[i]n 2013, 990,553 foreign nationals became lawful
14. See ORG. INT’L INVESTMENT, FOREIGN DIRECT INVESTMENT IN THE UNITED STATES: 2014 REPORT (2014), http://www.ofii.org/sites/default/files/FDIUS2014.pdf. 15. Id. at 1 (“[I]n 2013 equity drove much of this increase up $33 billion over the previous year. . . . Whether the United States will retain its status as the world’s most attractive investment location depends largely on future macroeconomic and financial conditions. For the second year in a row, A.T. Kearney’s FDI Confidence Index ranked the United States as the world’s top market in 2014.”). 16. Here the term “foreign lawyer” is used to refer to individuals who are qualified to practice in a jurisdiction outside of the United States. Generally, legal education follows licensing in the sense that foreign lawyers typically completed their primary legal education outside of the United States. Later in the Paper, “foreign lawyer” does not refer to non-U.S., but rather is used as a contrast to “domestic” with regard to any jurisdiction. See discussion of the IBA Global Cross Border Legal Services Database and Report, infra note 56. 17. See generally Karen Zeigler & Steven A. Camarota, U.S. Immigrant Population Record 41.3 Million in 2013, CTR. IMMIGR. STUD. (Sept. 2014), http://cis.org/immigrant-population-record- 2013 (discussing the growth of the immigrant population in the United States). 18. Id. Note that these data on “immigrant population” includes legal and illegal immigrants; see Karen Zeigler & Steven A Camarota, U.S. Immigrant Population Hit Record 42.4 Million in 2014, CTR. FOR IMMIGR. STUD. (Sept. 2015), http://cis.org/us-immigrant-pop-hit-record-42-million- 2014#frontpage (noting also growth in the immigrant population from 2013 to 2014 of 1.04 million). See also Jie Zong & Jeanne Batalova, Frequently Requested Statistics on Immigrants and Immigration in the United States, IMMIGR. POL’Y INST. (Feb. 26, 2015), http://www.migrationpolicy.org/article/frequently-requested-statistics-immigrants-and-immigration- united-states#Unauthorized Immigration (“‘According to DHS’ Office of Immigration Statistics
2016] GLOBAL LAWYER REGULATION 465
permanent residents . . . , also known as green-card holders.”19 For each immigrant and new permanent resident, the potential relationships and activities with their home country suggests an increasing need for cross-border legal services. This may involve a single lawyer with particular expertise and qualifications, but also may implicate the need for regulatory approaches that facilitate collaboration among lawyers licensed and educated in different national jurisdictions. As the prospective client pool based in the United States increasingly is connected to overseas activities, interests, and relationships, it is likely that there will be a growing need for such collaboration. The goal of this Paper is to provide a foundation for policymakers interested in global lawyer regulation. The framework is U.S.-centric, reflecting both the orientation of the American Bar Association Commission on the Future of Legal Services and my own grounding as a U.S. lawyer and researcher. Rather than suggest the best approach to regulating global lawyering and lawyers, the Paper instead takes aim at developing a wish-list of information for use by any U.S.- based policymaker interested in thinking through why a particular regulatory strategy is most likely to satisfy their objectives.20 The Commission’s decision to solicit white papers about “what we know and need to know” about legal services delivery is a crucial first step in recognizing the importance of data to effective decision-making regarding the complexities surrounding global legal practice. Using data to guide policy decisions promises the best opportunity to support continuation of the leading role of the legal profession in the global economy. The following sections address three questions. First, what does “global lawyer regulation” mean?21 This question is central to enabling the Commission to identify what information is pertinent to policymakers, among other things. Second, what should policymakers know before imposing or changing regulation?22 And third, which aspects of this need-to-know category already are known or would be knowable with modest additional effort?23 This foundation is intended to help policymakers consider next steps in supporting their role as regulatory advisors or direct regulators in a global context.
(OIS), an estimated 11.4 million unauthorized immigrants resided in the United States as of January 2012 compared to 11.5 million in January 2011.”). 19. Zeigler & Camarota, supra note 17. 20. See Laurel S. Terry et al., Adopting Regulatory Objectives for the Legal Profession, 80 FORDHAM L. REV. 2685 (2012) (discussing the role of regulatory objectives in the context of regulating lawyers and legal services). 21. See infra Part II. 22. See infra Part III.A. 23. See infra text accompanying notes 47–93. 466 SOUTH CAROLINA LAW REVIEW [VOL. 67: 461
II. UNPACKING THE FOCUS ON GLOBAL LAWYER REGULATION
Despite the apparent straightforward nature of the questions addressed in this Paper, the focus on global lawyer regulation is characterized by ambiguity and uncertainty, including the following questions:
What qualifications, characteristics and/or credentials qualify a lawyer for consideration as ‘global’? What activities comprise ‘global lawyering’? Must a lawyer cross or span borders in order to be ‘global’? If yes, how often, or what proportion of the lawyer’s work must involve cross-border matters? Might it be sufficient for the lawyer to be part of a practice organization that has a border-crossing structure, supporting offices and lawyers in multiple jurisdictions, even if the lawyer individually spends little time on cross-border work? Would a practice organization that offers expertise in the law of multiple jurisdictions, but does not support a physical presence in those jurisdictions, qualify as ‘global’? Or an organization that regularly advises clients based outside of the United States, regardless of the firm’s structure? Does ‘global lawyering’ require a cross-border aspect to the representation, or is work accomplished in a single overseas jurisdiction sufficient? Is the global or domestic nature of the client relevant to determining whether a lawyer or law firm qualifies as ‘global’? Which regulators are relevant: those addressing lawyers, law firms and other practice organizations, as well as those aimed at the services they produce?
Resolving these questions is preliminary to identifying what we know and need to know. At the same time, these issues indicate the evolving and shifting nature of the inquiry. Consequently, designing a process for continued data gathering, organization, and analysis also is central to the Commission’s ultimate success. With regard to lawyers and legal services, the term ‘global’ typically has been used to explain forces related to mobility and transnational activity that shape client needs, and the response of lawyers and law firms. Changes in the last twenty-five years or so, such as lower transportation costs and the development of new technology—including technology related to communication—enable lawyers to push their services into spaces they do not
2016] GLOBAL LAWYER REGULATION 467 physically occupy, even on a short-term basis.24 While it once was common to meet face-to-face with clients, it almost is too obvious to state that technology offers the ability to avoid this while also expanding possible client relationships exponentially.25 Nevertheless, lawyer regulation has been premised on physicality related to jurisdictional authority and boundaries, which is challenged by modern technology in which virtual presence is a viable—and perhaps preferred—alternative.26 Daniel Drezner, Professor of International Politics at the Fletcher School of International Affairs at Tufts University, who focuses on the ways in which globalization influences regulatory matters, defines “globalization as the cluster of technological, economic and political processes that drastically reduce the barriers to economic exchange across borders.”27 This definition also is relevant to lawyering: these same processes have enabled more interaction among actors from different jurisdictions, with varying expectations and approaches to creating relationships and resolving disputes, each of which lawyers address.28 But in addition, the reduction of barriers that Drezner refers to encompasses the regulatory response to these global processes, and lawyer regulation is considered by some to be lagging.29 The concepts of global lawyers and global lawyering also involve an element of spanning multiple jurisdictions or transnationalism.30 But what is distinct about global activities and processes is that the boundary-spanning does
24. See NOEL COX, TECHNOLOGY AND LEGAL SYSTEMS 65 (2006) (“The globalizing effect of the Internet, in particular, is affecting legal systems. Technology is causing and facilitating globalization. . . .”). 25. See, e.g., STEPHANIE KIMBRO, VIRTUAL LAW PRACTICE: HOW TO DELIVER LEGAL SERVICES ONLINE (2011). 26. See A.B.A., REPORT OF THE COMMISSION ON MULTIJURISDICTIONAL PRACTICE 3 (Aug. 2002), http://www.americanbar.org/content/dam/aba/migrated/final_mjp_rpt_6_5_1.authcheckdam .pdf [hereinafter A.B.A., REPORT OF THE COMMISSION]. 27. DANIEL W. DREZNER, ALL POLITICS IS GLOBAL: EXPLAINING INTERNATIONAL REGULATORY REGIMES 10 (2007). 28. See A.B.A., REPORT OF THE COMMISSION, supra note 26, at 3. 29. Nuno Garoupa also considers globalization as related to regulation. He has argued that “[g]lobalization of legal services tends to be associated with more competition and therefore can be understood as a force of market deregulation.” Nuno Garoupa, Globalization and Deregulation of Legal Services, 38 INT’L REV. LAW & ECON. 77, 77 (2014), http://econpapers.repec.org/ article/eeeirlaec/v_3a38_3ay_3a2014_3ai_3as_3ap_3a77-86.htm (footnote omitted). Further, he considers that “globalization, rather than inducing deregulation of the market for legal services, has promoted segmentation outside of the United States.” Id. at 78. Others see the regulatory change as one of re-regulation. See, e.g., John Braithwaite, Neoliberlism or Regulatory Capitalism 34 (RegNet Occasional Paper No 5, Oct. 2005), https://www.researchgate.net/profile/John_Braithwaite2/publication/251771491_NEOLIBERALIS M_OR_REGULATORY_CAPITALISM/links/5449ff5d0cf244fe9ea61785.pdf (“As global regulatory regimes expand, state regulatory capabilities are not necessarily contracted. Indeed capable states learn how to increase their capabilities by governing through and with global institutions.” (references omitted)). 30. See A.B.A., REPORT OF THE COMMISSION, supra note 26, at 3. 468 SOUTH CAROLINA LAW REVIEW [VOL. 67: 461 not also implicate an overarching structure.31 That is, global connotes an important position for what is local, too, rather than something that is uniform despite geographic differences, and it is in these various localities that the possibility of conflict—particularly with regard to regulation—arises.32 Even apart from its use in the context of lawyers and legal services, the term ‘global’ is contested. Perhaps most fundamental, scholars disagree about whether being global is an outcome, on one hand—suggesting, for example, that a lawyer or law firm could be characterized as global—or instead whether the description is more accurately applied to processes and forces that shape the activity of individuals and organizations as well as regulators.33 The distinction is important in terms of what is deemed relevant data. The notion of ‘lawyer’ is relatively straightforward in the domestic context of the United States. Here, it typically is used to describe someone who has attained a particular licensing status based on satisfying at least two conditions: earning a J.D. degree from a law school approved by the ABA Section of Legal Education and Admissions to the Bar, and passing an examination and related character and fitness requirements administered by a particular U.S. jurisdiction. The National Conference of Bar Examiners provides statistics on bar admission, based on data it collects from individual U.S. jurisdictions regarding annual
31. See What We Don’t Know, supra note 1, at 1026–27 (defining ‘global’ broadly with regard to the legal profession and legal services to include “matters that involve either multiple jurisdictions or mobility of individuals, organizations or their services across national boundaries, or a combination of these factors.”). 32. See Glocal, supra note 6, at 1434 n.9 (The term “‘glocalization’ . . . reflects the process that global actors embrace to adapt to local circumstances and take on local characteristics, while continuing to maintain their home country connections.”); Roland Robertson, Comments on the “Global Triad” and “Glocalization,” GLOBALIZATION & INDIGENOUS CULTURE (Inoue Nobutaka ed., 1997), http://www2.kokugakuin.ac.jp/ijcc/wp/global/15robertson.html; see also Carole Silver et al., Globalization and the Business of Law: Lessons for Legal Education, 28 NW. J. INT’L L. & BUS. 399, 410 (2008) (“U.S. firms are going local through local lawyers who bring expertise in hard and soft law, including important connections to local culture, regulators, business and the state, while at the same time the firms are maintaining connection through the presence of U.S.-educated lawyers to their universal—the U.S. approach to practice, encompassing both an entrepreneurial approach to practice and problem-solving approach as well as attention to the ethical constraints on firms and their lawyers.”) [hereinafter Globalization and the Business of Law]. Of course, one option for regulating activity that is framed by a global context is the development of an umbrella regulator. See generally Laurel S. Terry, Preserving the Rule of Law in the 21st Century: The Importance of Infrastructure and the Need to Create a Global Lawyer Regulatory Umbrella Organization, 2012 MICH. ST. L. REV. 735 (2012) (arguing for a structure facilitating communication among national lawyer regulators, rather than creation of an umbrella lawyer regulatory organization). 33. See Marion Fourcade & Joachim J. Savelsberg, Introduction: Global Processes, National Institutions, Local Bricolage: Shaping Law in an Era of Globalization, 31 LAW & SOC. INQUIRY 513 (2006) (commenting on a symposium as reflecting “the ‘process turn’ in globalization research”); John O’Loughlin et al., Introduction: Globalization and Its Outcomes, in JOHN O’LOUGHLIN ET AL., GLOBALIZATION AND ITS OUTCOMES (2004) (discussing processes and outcomes).
2016] GLOBAL LAWYER REGULATION 469 admission.34 In the United States, it is common to refer to individuals as lawyers, even if they do not practice law, based on their having completed the steps necessary to obtaining the license.35 In a global context, however, the concept of ‘lawyer’ varies based on qualification and function. For example, in the European Union those technically qualified as lawyers and employed as corporate counsel lose the protection of legal privilege based on their employment status.36 Elsewhere, corporate legal advising positions typically have been filled by individuals who are not licensed as lawyers because, while having earned a basic legal education, they have not passed the bar examination or completed post-bar education. South Korea and Japan exemplified this pattern prior to recent reforms.37
34. See generally NAT’L CONFERENCE B. EXAM’RS, STATISTICS, http://www.ncbex.org/publications/statistics/ (last visited Mar. 31, 2016) (offering a search tool for national data for bar examinations for prior years). Reliance on state reporting may result in inconsistencies, however. For example, certain states record a category of admittees who earned their first degree in law outside of the U.S., while in other states it is not clear whether such record keeping is maintained. See Persons Taking and Passing the 2014 Bar, supra note 13, at 13 (identifying jurisdictions that did and did not record admittees who were educated in foreign law schools, as indicated by entered data, or dashes, respectively). Without a structure that imposes consistent categories and reporting, however, the information received by the NCBE, and reported by it in its statistics on admission based on source of legal education, may be incomplete and perhaps mistaken. See id. 35. See Ben W. Heineman Jr. et al., Lawyers as Professionals and as Citizens: Key Roles and Responsibilities in the 21st Century, CTR. ON THE LEGAL PROFESSION AT HARVARD LAW SCHOOL 10–11 (Nov. 20, 2014), https://clp.law.harvard.edu/assets/Professionalism-Project- Essay_11.20.14.pdf (“Certain positions for lawyers as leaders are, of course, those that only people with legal training may occupy (e.g., judges, attorneys general, and heads of law firms or bar associations, general counsel, and deans of law schools). . . . But lawyers, including those leaders of legal institutions, have also occupied leadership positions in a wide array of other public, private, and non-profit institutions and organizations. They can be heads of countries, universities, companies, foundations, cabinet departments, legislative committees, and 10 regulatory agencies of all shapes and sizes. . . . A law degree guarantees nothing but an opportunity to compete for leadership positions.”). In addition, however, completing the steps necessary to practice is complicated with regard to international law graduates who can gain bar eligibility in certain states on the basis of an additional year of study in the U.S. in an LL.M. degree program. See NAT’L CONFERENCE B. EXAM’RS & A.B.A. SEC. OF LEGAL EDUC. AND ADMISSIONS TO THE B., COMPREHENSIVE GUIDE TO B. ADMISSION REQUIREMENTS 2015, at 12 (2015), http://www.ncbex.org/pubs/bar-admissions- guide/2015/index.html#p=24. Graduates of law schools unapproved by the ABA also are able to become lawyers in certain jurisdictions. See id. at 8. 36. Case C-550/07, Akzo Nobel Chems. Ltd. & Akcros Chems. Ltd. v. Comm’n, 2010 EUR- Lex LEXIS 807 (Sept. 14, 2010); but see Professional Privilege Litigation Remains a Live Issue in Europe’s Courts, INT’L B. ASS’N (2007), http://www.ibanet.org/Article/Detail.aspx?ArticleUid= 0391bbba-1b9e-4b0d-a676-740e9c5240c1 (discussing decisions of national courts of EU member countries that reject Akzo Nobel). 37. See Hyung Tae Kim, Legal Market Liberalization in South Korea: Preparations for Change, 15 PAC. RIM L. & POL’Y J. 199, 203 n.22 (2006) (“The term ‘lawyer’ refers to those who have passed the bar examination and have chosen private practice or practice at a law firm. It does not include judges, prosecutors, or in-house counsel.”); Mayumi Saegusa, Why the Japanese Law School System Was Established: Co-optation as a Defensive Tactic in the Face of Global Pressures, 470 SOUTH CAROLINA LAW REVIEW [VOL. 67: 461
Earlier, the rate of bar passage in each jurisdiction was extraordinarily low and law graduates who did not pass the exam often worked in law-related positions for business organizations.38 While there was no confusion about the status of these law advisors at home, functionally they worked in positions analogous to the roles that U.S.-based corporations identify as corporate counsel, a role requiring a law license in the United States.39 But after recent reforms in Korea and Japan, it has become more common for licensed lawyers there also to assume corporate counsel positions.40 Last, in other jurisdictions, the absence of formal admission conditions on law graduates complicates the determination even of basic facts, such as the number of practicing lawyers.41 Moreover, in contrast to the United States, the institutions capable of granting a law degree
34 LAW & SOC. INQUIRY 365, 372 (2009) (“In large Japanese corporations, the staff of legal and general affairs departments, not in-house lawyers, tended to handle legal matters. These staffs were often graduates of undergraduate law faculties.”); Carole Silver et al., What Firms Want: Investigating Globalization’s Influence on the Market for Lawyers in Korea, 27 COLUMBIA J. ASIAN L. 1 (2015) (describing opportunity to practice in a corporate counsel position as significant to non-licensed law graduates, including foreign lawyers and Korean law graduates alike); Toshimitsu Kitagawa & Luke Nottage, Globalization of Japanese Corporations and the Development of Corporate Legal Departments: Problems and Prospects, in WILLIAM P. ALFORD, RAISING THE BAR (2007) (describing the development of corporate legal departments in Japanese corporations as including both non-licensed “corporate legal counsel” and foreign-licensed lawyers). On reform of the education and licensing regimes, see Saegusa, supra; Jeanne Lee John, The KORUS FTA on Foreign Law Firms and Attorneys in South Korea—A Contemporary Analysis on Expansion into East Asia, 33 NW. J. INT’L L. & BUS. 237 (2012). 38. See, e.g., Kim, supra note 37, at 203 n.22, 229–30 n.213 (elaborating on the need for a higher bar passage rate, and delineating between ‘legal professional’ and ‘lawyer’ in South Korea). 39. See Kim, supra note 37, at 203 n.22; Kitagawa & Nottage, supra note 37. 40. See Park Chung‐a, In-House Lawyers Take on Enhanced Role, KOREA TIMES (Apr. 30, 2007) ( describing Samsung, for example, as having “a large in-house counsel composed of 171 lawyers including 66 domestic lawyers and 105 foreign lawyers. The number is twice that of four years ago”); Tom Brennan, Japan’s Lawyers Heading In-House; An Oversupply of So-Called Bengoshi Has Led to Greater Hiring by Corporate Legal Departments, ASIAN LAW. (Jan. 1, 2013). 41. This is the case in Mexico, see Mexico International Trade in Legal Services, Home Country Licensing Questions, INT’L B. ASS’N, http://www.ibanet.org/PPID/Constituent/Bar_Issues_ Commission/ITILS_Mexico.aspx (last visited Mar. 31, 2016) [hereinafter IBA, Mexico], and, at least until recently, in India, where an effort to institute a national bar examination requirement is ongoing. See India International Trade in Legal Services, Home Country Licensing Questions, INT’L B. ASS’N, http://www.ibanet.org/PPID/Constituent/Bar_Issues_Commission/ITILS_ India.aspx (last visited Mar. 31, 2016). See Prachi Shrivastava, BCI to Clamp Down on Bar Exam Dodgers with Practice Restriction, UIDs as Original External AIBE Contract Ends, LEGALLY INDIA (May 4, 2012), http://www.legallyindia.com/Graduates-Bar-Exam/bci-to-clamp-down-on- bar-exam-dodgers-with-practice-restriction-uids-as-original-external-aibe-contract-ends (“Claiming that law graduates in some states are practicing without passing the All India Bar Exam (AIBE), the Bar Council of India (BCI) said today it would permanently bar graduates from practice who do not pass within three attempts and eighteen months, and assign unique identification numbers for all law students. From December 2012, graduates would have only one-and-a-half years and no more than three attempts to pass the AIBE after graduating from three-year or five-year LLB courses. In many states the exam had not been ‘mandatory’ because many state bar councils were opposed to the AIBE . . . .”).
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may not be subject to approval or certification by the state or its delegated agency.42 Consequently, generating comparable numbers is a challenge. The concept of ‘legal services’ also is changing. In the United States, it once may have been accurate to define legal services as the output of lawyers’ work; today, as the Commission well knows, even domestically this definition is too narrow because a host of non-law firm organizations are participating creatively in the delivery of law-related services.43 Outside of the United States, where regulation permits combinations of ownership and services not currently possible here, the notion of legal services is not necessarily shaped by the status of the entity or individual delivering them. Moreover, even traditional law firms are pushing into new territory, as exemplified by the recent announcement of Dentons to “launch[] NextLaw Labs, a wholly-owned subsidiary through which it will invest in and develop technologies so that attorneys can deliver services to their clients ‘better, cheaper, faster . . . .’”44 Finally, even ‘regulation’ is not a static concept. Rather than conceive of regulation as limited to formal rules issued by a governing body, a broader understanding of regulation includes rules, practices. and approaches that can be described as “voluntary as well as coercive . . . , national and global, civil and statist . . . .”45 Regulation may be produced through transparent or secretive processes, the latter of which complicate the ability of policymakers to keep abreast of relevant information, much less to participate.46 And the variation in conceptions of lawyers and legal services, outlined above, also challenge the task of identifying the focus of regulation that policymakers should monitor in order to be aware of relevant rule-making activity affecting the world of global lawyers. The changing and varied understandings of these categories—global, lawyers, legal services, and regulation—complicate what policymakers should know with regard to advising on regulatory approaches. Sensitivity to the evolving nature of the subjects is crucial to identifying information central to
42. See, e.g., IBA, Mexico, supra note 41. 43. See, e.g., AXIOM, http://www.axiomlaw.com (last visited Mar. 31, 2016) (providing general-counsel and other services to business clients); LEGALZOOM, http://www.legalzoom.com (last visited Mar. 31, 2016) (providing production of documents to individuals and business clients); NOVUSLAW, http://www.novuslaw.com (last visited Mar. 31, 2016) (providing document review and other services to business clients). 44. Jennifer Henderson, Dentons to Develop New Technologies Through NextLaw Labs, AM. LAW. DAILY (May 18, 2015), http://www.americanlawyer.com/home/id=1202726807883/?kw= Dentons%20to%20Develop%20New%20Technologies%20Through%20NextLaw%20Labs&cn=20 150519&pt=Am%20Law%20Daily%20Headlines&src=EMC-Email&et=editorial&bu=The%20Am erican%20Lawyer&__nored=1&slreturn=20150419082700. 45. David Levi-Faur, Foreword, in JOHN BRAITHWAITE, REGULATORY CAPITALISM: HOW IT WORKS, IDEAS FOR MAKING IT WORK BETTER viii (2008). 46. For example, trade negotiations and agreements that address professional services often include legal services within their scope, but the secrecy surrounding trade negotiations and the process of domestic implementation of agreements result in challenges for understanding their significance and consequences. 472 SOUTH CAROLINA LAW REVIEW [VOL. 67: 461 their decisions. The following section explores in more detail these need-to- know and known/knowable categories.
III. THE LISTS: SHOULD KNOW AND DO OR COULD KNOW
This section builds on these definitional considerations to explore the foundation that policymakers have and should acquire in order to act in an informed and effective manner. The discussion is organized with regard to categories of actors involved in the global market for legal services: regulators (and their output); individual lawyers; legal practice organizations, law firms and other entities that house lawyers; clients; and law schools.47 Generally, for each of these categories, policymakers should be able to ascertain easily the number of actors and the nature of the activities that implicate one or more of the notions of ‘global’ described earlier. With regard to regulation, they should know the source of regulations that address lawyers and legal services as defined in the relevant jurisdiction, and have access to regulatory provisions and implementation policies addressing practice in a global context. These include rules and policies governing foreign lawyers and law firms in the jurisdiction, such as whether it is possible (1) to establish an ongoing physical presence for practice; (2) to advise clients based in the jurisdiction; (3) to advise on the law of the jurisdiction; (4) to participate in courts and other forums in the jurisdiction; (5) to collaborate with lawyers licensed in the jurisdiction; and (6) to qualify as a lawyer in the jurisdiction (and, if possible, by what process). It also is important to be able to identify and understand the ethical rules applicable to lawyers, based on their home country qualification. In addition and importantly, policymakers require insight into the way these regulations work, including patterns of application and enforcement, difficulties related to compliance, and the willingness of regulators to consider petitions for waivers, among other things. These issues structure the discussion below.
A. Regulators and Their Rules
Knowing the rules in place and the source of those rules lays the groundwork for policymakers active in any field, and legal services is no exception. In addition, comparability is important to enable policymakers to assess the consequences of regulatory differences. While this may sound straightforward, jurisdictional variation and the diverse approaches to definitional issues discussed earlier render it difficult in practice. Progress has been made in at least three ways with regard to developing sources of information related to regulators and regulations. The first two of these derive from the development of paths of communication or networks
47. This structure is based on my analysis in What We Don’t Know, supra note 1, at 1027.
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among regulators.48 The first effort was organized by the American Bar Association’s Center for Professional Responsibility, which developed an information exchange for various national lawyer regulatory bodies.49 This is intended to facilitate communication among regulators regarding lawyer disciplinary matters, among other issues.50 A second effort is a series of annual meetings that began in the fall of 2012, organized as the International Conference of Legal Regulators, the ICLR.51 The ICLR was convened by England’s Solicitor Regulatory Authority under the direction of its international advisor, Alison Hook.52 Hook described the aim of the ICLR as serving as a “catalyst for a new network of legal regulators.”53 These networks surely will be useful in facilitating the sharing of information relevant to regulations and their sources. A third initiative, undertaken by the International Trade in Legal Services Committee of the International Bar Association, is aimed more directly at regulatory content than at relationships.54 The Committee (led by the same Alison Hook involved in the ICLR) gathered information, mostly from regulators, in more than ninety countries regarding their approach to regulating lawyers who practice in a global context.55 The resulting IBA Global Cross Border Legal Services Database and Report addresses eight questions related to practice across borders:56
Identifying the GATS/WTO commitments regarding legal services on behalf of the jurisdiction, Preferential treatment for lawyers from particular jurisdictions, Licensing regimes for foreign lawyers and law firms, Regulation of temporary practice by foreign lawyers, Foreign lawyers’ ability to appear in court,
48. Terry & Silver, Transnational Legal Practice, supra note 3. 49. Id. at 112 (“[I]n August 2014, the ABA Center for Professional Responsibility’s Policy Implementation Committee devoted part of its meeting to the issue of the ABA Guidelines for an International Lawyer Regulatory Information Exchange, which were adopted in 2013 and encourage, inter alia, U.S. regulators to identify their regulatory counterparts in other countries.”). 50. Id. 51. Laurel S. Terry, Creating an International Network of Lawyer Regulators: The 2012 International Conference of Legal Regulators, 82 B. EXAM’R, June 2013, at 18, 19. 52. Id. at 21, 25. 53. Megan Malloy, Legal Regulators Launch Global Support Network, GLOBAL LEGAL POST (Oct. 2, 2012, 11:03 AM), http://www.globallegalpost.com/global-view/legal-regulators-launch- global-support-network-41413930/. 54. Laurel S. Terry, Putting the Legal Profession’s Monopoly on the Practice of Law in a Global Context, 82 FORDHAM L. REV. 2903, 2919 (2014). 55. Id.; INT’L B. ASS’N, IBA GLOBAL REGULATION AND TRADE IN LEGAL SERVICES REPORT 2014, at 3 (2014) [hereinafter IBA Report]. 56. The database is available at IBA Global Cross Border Legal Services Report. International Trade in Legal Services, INT’L B. ASS’N, http://www.ibanet.org/PPID/Constituent/ Bar_Issues_Commission/BIC_ITILS_Map.aspx (last visited Mar. 31, 2016). 474 SOUTH CAROLINA LAW REVIEW [VOL. 67: 461
Foreign law firms’ ability to establish an office in the jurisdiction, Collaboration in the form of partnership and employment between foreign and domestic lawyers and Whether foreign lawyers may requalify as domestic lawyers in the jurisdiction.
The design of the IBA Report and Database facilitates comparability among jurisdictions, and sources are identified for each reported jurisdiction.57 Moreover, the information included in the Database addresses definitional issues regarding lawyers and, in some cases, legal services.58 Topically, what is missing from the Database and Report relates to law-in- action issues, including: how regulators enforce and monitor compliance; what processes shape compliance experiences, such as the time and cost involved in satisfying conditions for obtaining a particular status; and the consequences of noncompliance. Nor does the Database address regulators’ experiences with regard to disciplinary actions taken against foreign lawyers and law firms. It also fails to inform about the extent of what might be described as ‘global activity’: the number of foreign lawyers and law firms present in the jurisdiction, and the number from that jurisdiction active elsewhere. These practical considerations likely shape the decisions of actors considering entry into the jurisdiction and modes of operating there. Resulting information voids leave policymakers unable to assess the way these informal aspects of a regulatory structure and the related activity occurring in the jurisdiction influence the experiences and decisions of relevant actors.59 Additionally, the questions addressed in the Database are narrowly focused on traditional conceptions of lawyers and their services. As new entrants blur
57. Each country’s entry in the IBA Report, supra note 56 passim, asks and answers the same set of questions for every country, making it easy to compare the information between jurisdictions. For Julian Lonbay’s work on EU regulation, see EUR. LAW. INFO. EXCHANGE & INTERNET RESOURCE, http://elixir.bham.ac.uk/menu/country/default.htm (last visited Mar. 31, 2016), for an early example of analytical presentation of various jurisdictions’ regulations. The consequences of implementation of the EU’s directive on mobility were studied in research undertaken by the European Commission and reported in S.J.F.J. CLAESSENS ET AL., EVALUATION OF THE LEGAL FRAMEWORK FOR THE FREE MOVEMENT OF LAWYERS 175 (Nov. 28, 2012), http://ec.europa.eu/internal_market/qualifications/docs/studies/2013-lawyers/report_en.pdf. 58. See, e.g., Qatar International Trade in Legal Services, Home Country Licensing Questions, Int’l B. Ass’n, http://www.ibanet.org/PPID/Constituent/Bar_Issues_Commission/ ITILS_Qatar.aspx (last visited Mar. 31, 2016) (answering the question, “Are there certain activities that are ‘reserved’ to those who are licensed to practice law in the jurisdiction?”). 59. See What We Don’t Know, supra note 1, at 1024. Until recently, there has been little effort outside of the European Union to identify and coherently analyze basic questions related to mobility of individual lawyers, firms and practice, both with regard to regulation (on the books) and practice (in action). See id. at 1055 (stating that, at the time of the article, there was “[v]irtually no information about U.S. lawyers working overseas . . . reported systematically through the lawyer regulatory regimes currently in place in the United States.”). On mobility in the EU, see CLAESSENS ET AL., supra note 57.
2016] GLOBAL LAWYER REGULATION 475
the edges of the law-related services industry, regulations addressing their activities and products should be added. Finally, while the scope of the Database is impressive, certain jurisdictions have been omitted. Perhaps more importantly, nearly constant updating will be necessary to take into consideration new provisions and trade agreements. A description of the process and timeline for updating would improve users’ confidence with regard to accuracy and reliability.
B. Lawyers and the Organizational Platforms from Which They Practice
It is extraordinarily difficult to assess the role of global forces in the work performed by various segments of the legal profession, and particularly by those lawyers and organizations serving clients other than the largest commercial enterprises. While there may be a general consensus that the lawyers who represent the largest transnational business organizations engage in practice that is connected to if not immersed in a global context, little is known about the significance of the cross-border element of their work to their firms and as an element of their individual practices, and even less about the work of lawyers whose client focus is elsewhere.60 One approach might be simply to track where U.S.-licensed lawyers work. How many U.S.-licensed lawyers routinely work from an overseas location, whether an office of their law firm, their client’s offices or otherwise? English policymakers regularly gather such data with regard to solicitors and use it to promote the value of English law (and lawyers) in the global market for legal services.61 While The American Lawyer publishes information on the number of lawyers practicing outside of the United States on behalf of global law firms, including U.S.-based firms,62 these data are lacking in important ways: they do not address small- or medium-sized firms or law firm networks, nor do they examine the expertise and credentials of the lawyers themselves to determine whether they are grounded in host country law or in the law of the United States or a third jurisdiction. My own research clarifies this last point, and indicates that overseas-qualified lawyers comprise the overwhelming majority of
60. But see Laurel S. Terry, The Legal World Is Flat: Globalization and Its Effect on Lawyers Practicing in Non-Global Law Firms, 28 NW. J. INT’L L. & BUS. 527 (2008) (exploring the role of globalization with regard to the work of lawyers who practice in settings other than the largest law firms). 61. See Our International Work, LAW SOC’Y, http://www.lawsociety.org.uk/policy- campaigns/international-work/ (last visited Mar. 31, 2016) (describing international work as involving promoting “English and Welsh law and expertise internationally”). While the reports are not available online, a reference to the number of solicitors practicing overseas is evidence of the existence of these data. See SRA Unveils International “Passport to Practice,” SOLICITORS J. (Nov. 14, 2011), http://www.solicitorsjournal.com/news/regulation/regulators/sra-unveils- international-passport-practice. 62. Global Rankings, AM. LAW., Oct. 2014, at 104, 108. 476 SOUTH CAROLINA LAW REVIEW [VOL. 67: 461 individuals practicing in overseas offices of the largest U.S.-based law firms.63 Additional data on U.S.-qualified lawyers practicing overseas, as well as the work of smaller firms and law firm networks, would guide opportunities for sharing U.S. ideals about the role of law and lawyers, in addition to substantive U.S.-based approaches to law and process. Parallel information on foreign-qualified lawyers whose practice routinely brings them to the United States also is material for policymakers interested in the issues surrounding global lawyer regulation. How many foreign lawyers routinely are present in the United States and in which jurisdictions? Is their work primarily on behalf of home country clients? Do they work in collaboration with U.S.-licensed lawyers, and are these in the same or in another practice organization? The regulatory framework in many U.S. jurisdictions authorizes foreign lawyers to work in the United States on a temporary or longer term basis, but little information exists on those who rely on these provisions, their perceptions of and experiences with the regulations, and their interactions, if any, with U.S.-based lawyers, law firms, clients, and the judicial system. To be sure, the NCBE publishes information on the number of foreign-educated law graduates who qualify each year either as foreign legal consultants or through full admission, but this provides information only on new licensees rather than aggregate information. Nor does the NCBE information allow for insight into the factors that shape a decision to engage in such a formal manner with the lawyer regulatory system.64 Moreover, an effort to generate meaningful data regarding the ways in which regulation shapes conduct of individuals and organizations, the identity of the researcher is implicated. Increasingly, technology may enable lawyers to avoid travel and at least certain related complications of overseas regulatory regimes.65 Physical presence may be entirely unnecessary in many representation relationships. In addition, new collaboration platforms may support relationships with lawyers (and others) who can share their deep cultural knowledge of their jurisdictions as well as client relationships. But systematic information on the ways in which technology is used by lawyers and others involved in transnational practice or in representing non-U.S. clients, for example, is lacking. Policymakers may be justified in assuming that technology matters in the context of global lawyering, but they cannot be sure how or why without additional research.
63. See Glocal, supra note 6, at 1455 (showing that 57% of lawyers practicing with a set of U.S.-based law firms in their overseas offices were admitted to practice only in a jurisdiction outside of the United States, 15% were admitted only in the United States, and 9% were admitted in both the United States and an overseas jurisdiction). More recent data (gathered in 2011-2012) shows that approximately 63% of the lawyers practicing overseas with a set of 75 U.S.-based law firms are licensed only in a non-U.S. jurisdiction, approximately 9% are licensed only in the United States, and approximately 12% are licensed in the United States and overseas. 64. 2014 Statistics, 84 B. EXAM’R, Mar. 2015, at 30. 65. What We Don’t Know, supra note 1, at 1057.
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If we shift the focus somewhat to examine law firms rather than individual lawyers, issues of organizational form arise. Cross-border law firm mergers have generated significant attention in the last several years, with resulting organizations housing as many as 6,500 lawyers in offices in more than fifty countries—an enormous organization for a professional services firm, by any measure (and certainly already outdated figures by the time of this reading).66 Certain of these new mega-firms are organized as vereins, while others take a partnership as their foundational form, but these two forms of organization are not exclusive, and new structural frameworks emerge, too.67 Regardless of organizational structure, however, a generally consistent theme is the opacity of the details surrounding the formal organizational arrangements characterizing global law firms, and the related challenge of gaining a deep understanding of the consequences of these various structural arrangements.68 Policymakers would be helped by case studies that provide a thorough understanding of the ways in which law firm organization matters, why decisions to organize in one form or another are made, and the role of regulation (and location) in these decisions. Information about U.S.-based law firms’ presence overseas, and about the converse of foreign-based law firms in the United States, should be readily available. This, along with information on the related presence of individual lawyers (noting that ‘presence’ raises thorny issues discussed earlier) would inform policymakers of the extent of activity that regulation of cross-border advising activity must aim, at a minimum. But even basic information, such as the names of overseas law firms present in a particular U.S. jurisdiction and the number of lawyers practicing from that office, is difficult to obtain. Similarly, a list of U.S. law firms with offices in Paris, for example, is unavailable except to
66. See, e.g., Neil Gough, Dentons to Merge With Dacheng of China to Create World’s Largest Firm, N.Y. TIMES, Jan. 28, 2015, at B7, http://dealbook.nytimes.com/2015/01/27/dentons- to-merge-with-dacheng-of-china-to-create-worlds-largest-law-firm/?_r=0. 67. Compare Legal Notices, DENTONS, http://www.dentons.com/en/legal-notices (last visited Mar. 31, 2016) (“Dentons is a global legal practice providing client services worldwide through its member firms and affiliates, including Brandt Chan & Partners in association with Dentons HK LLP, Dentons Canada LLP, Dentons UKMEA LLP, Dentons US LLP, Dentons Europe LLP, and their subsidiaries and affiliates, each of which is its own Legal Practice. Salans FMC SNR Denton Group (a Swiss Verein) does not itself provide legal or other client services.”), with Edwin B. Reeser & Martin J. Foley, Are Verein-Style Law Firms Ignoring Fee-Splitting Ethics Rules?, A.B.A. J.: LEGAL REBELS: THE NEW NORMAL (Oct. 1, 2013, 1:30 PM), http://www.abajournal.com/legalrebels/article/are_verein-style_law_firms_ignoring_fee- splitting_ethics_rules/ (analyzing ethical issues related to the verein form). See also Nell Gluckman, New Global Firm Makes a Debut, Shunning US, AM. LAW DAILY (Feb. 22, 2016), http://www.americanlawyer.com/id=1202750250549/New-Global-Firm-Makes-a-Debut-Shunning- US (describing the firm resulting from a merger between Gowlings (Canadian-based law firm) and Wragge Lawrence Graham & Co. (U.K.-based law firm) as “organized in the U.K. as a company limited by guarantee. The two partnerships are each members of that entity. They have separate financial structures and are governed by one six-person board.”). 68. See What We Don’t Know, supra note 1, at 1062. 478 SOUTH CAROLINA LAW REVIEW [VOL. 67: 461 the extent that it involves only those law firms deemed sufficiently significant to attract the attention of a publication like The American Lawyer. In past years, a listing directory such as Martindale69 would have been useful—albeit not reliably comprehensive of the universe of law firms (and likely not inclusive of organizations offering legal services but not within the traditional understanding of a law firm). Today, however, law firms may avoid the costs associated with a Martindale listing in favor of their own firm website. While reviewing law firm websites can produce fascinating information, such a strategy cannot hope to lead to a comprehensive list of firms, locations, and sizes. But without that, the universe of actors relevant to policymakers is unavailable. Small- and medium-sized law firms that participate in global practice issues are largely out of sight. Some may be members of law firm networks, for example, which might be comprised of little more than an informal information- sharing event, or may involve ongoing relationships governed through formal processes and training. As with the form of organization, however, little information is available to illuminate the consequences of particular network structures and policies, despite potential regulatory implications. Moreover, as law firm mergers utilize various organizational structures, the divide between organizations that present themselves as networks and those that identify as firms may collapse, triggering questions about different regulatory treatment in ethical rules, among others. For all law firms structured with an overseas presence, it is a complex matter to determine the portion of the firm’s revenue that derives from its global practice.70 It is not obvious what factors result in allocating revenue to an overseas presence or to the efforts of lawyers based there. But without such information, policymakers miss a central element of the impact of regulation in a global environment. Hiring decisions of law firms with a presence in particular jurisdictions are shaped by local regulation, and this, too, is an aspect of global lawyer regulation of which policymakers should be aware. One example is a regulatory barrier that prevents foreign law firms from hiring locally-licensed lawyers.71 In China, for example, local regulation requires Chinese lawyers to relinquish their practice certificates in order to practice with a foreign law firm.72 This
69. MARTINDALE, http://www.martindale.com (last visited Mar. 31, 2016). 70. See generally Susan Beck, Law Firm Accounting: Opening the Books, AM. LAW., Dec. 12, 2015 (discussing the debate over cash versus accrual accounting). 71. See, e.g., Carole Silver, The Variable Value of U.S. Legal Education in the Global Legal Services Market, 24 GEO. J. LEGAL ETHICS 1, 34–35 (2011) [hereinafter U.S. Legal Education in the Global Legal Services Market] (discussing China’s regulatory barrier preventing foreign firms from hiring China-licensed lawyers). 72. Id. at 34. See also Sida Liu, Globalization as Boundary-Blurring: International and Local Law Firms in China’s Corporate Law Market, 42 LAW & SOC’Y REV. 771 (2008); William L. Rosoff, Building a Foreign Law Practice in China, THE TEMPLE 10-Q (Mar. 3, 2015), http://www2.law.temple.edu/10q/building-foreign-law-practice-china/ (“Foreign lawyers cannot
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influences the credentials preferred by foreign law firms, as well as the status attainable by a Chinese-licensed lawyer who has not qualified in a second jurisdiction.73 Information about the strategies of global law firms in navigating this sort of regulatory framework would provide insight to policymakers about the ways in which regulation matters to firms’ organizational and growth strategies and practices. Finally, in addition to law firms, lawyers also are housed in or routinely conduct their work through the auspices of organizations that are organized as something other than law firms, whether professional service firms, corporations, NGOs, or something else. Certain of these work directly with clients, while other organizations are themselves the client. How do these organizations use lawyers in their various locations, and how much does regulation of legal practice—and particularly the global aspects of legal practice—impact the decisions of these entities regarding the roles of their lawyers?
C. Clients
Clients typically are identified by law firms and lawyers as drivers of global practice.74 Their activities, problems, expansion and investments determine where their lawyers need to focus. But after following clients to a new location, lawyers rarely are satisfied limiting their practices to their existing client relationships. Rather, lawyers typically attempt to develop client relationships with businesses and individuals active in the new, overseas location. In this way, clients both push global expansion and result from it.75 The implications of the work of business development may be important to regulators in considering differences between policies addressing lawyers and law firm establishment versus collaboration post-establishment. Ongoing interaction between foreign and host country lawyers offers opportunities for training and skills transfer; ultimately, this sort of activity can provide a foundation for the development of local competition for global firms.76 To this end, information about the kinds of work in which lawyers engage on behalf of each of these sorts of globally-relevant clients, as well as with regard to locally- based clients, would add significantly to the understanding of policymakers. It is likely that the nature of their activities differs, perhaps with regard to substantive
practice Chinese law and Chinese lawyers who join foreign firms must give up their Chinese law license.”). 73. See U.S. Legal Education in the Global Legal Services Market, supra note 71, at 41 n.160. 74. See What We Don’t Know, supra note 1, at 1069. 75. See Glocal, supra note 6, at 1440–41 (regarding the substantive focus of lawyers practicing in overseas offices of U.S.-based law firms, including litigation practices). 76. This was the case in China, for example. See U.S. Legal Education in the Global Legal Services Market, supra note 71, at 36; Liu, supra note 72. 480 SOUTH CAROLINA LAW REVIEW [VOL. 67: 461 focus, their role in clients’ disputes and deals, or in ways not readily imaginable.77 A final factor regarding client matters relates to the pro bono and public interest activities in which lawyers and law firms engage outside of their home jurisdictions. There appears to be growing interest and activity in overseas pro bono,78 but there is little information available about potential local (host country) political consequences and complications, and the role of regulatory considerations—whether lawyer-focused, immigration, or otherwise—in shaping these activities, among other things.
D. Law Schools and International Students
U.S. law schools increasingly serve as the nexus between international and domestic law students.79 Enrollment of international students in U.S. law schools is rising, as is enrollment of international students in other segments of U.S. higher education.80 According to information filed by ABA-approved law schools with the ABA Section of Legal Education and Admissions to the Bar, international students who have the reported status of ‘nonresident alien’ comprised 2.37% of students enrolled in J.D. programs at all ABA-approved law schools in 2015, compared to 1.66% in 2011.81 At the twenty-one U.S. law schools ranked in the Top 20 by U.S. News & World Report, however, nonresident aliens comprised 4.95% of the J.D. student population in 2015, up from 2.87% in 2011.82 The nonresident alien students attending this group of Top 20 law schools comprises slightly more than one-third of all nonresident aliens enrolled as J.D. students in all U.S. law schools.83 This concentration likely reflects at least two influences. First is the practice of transferring between law schools by international students.84 The ability to “trade up” with regard to law school reputation through transferring may be particularly significant to certain international law students who view the reputation of their
77. For example, litigation may be important for host-country based clients, requiring host- country qualified lawyers. See Glocal, supra note 6, at 1464–69. 78. Martha Middleton, Growing Numbers of US Lawyers Are Doing Pro Bono Work in Other Countries, A.B.A. J. (Aug. 1, 2014), http://www.abajournal.com/magazine/article/growing_ numbers_of_u.s._lawyers_are_doing_pro_bono_work_in_other_countries/. 79. See What We Don’t Know, supra note 1, at 1041–43 (listing the ways U.S. law schools are related to globalization, particularly concerning the students). 80. See Open Doors Data, supra note 9; Silver, Coping with the Consequences, supra note 11, at 229–30 (regarding the presence of the international students in U.S. colleges and universities, and in U.S. law school J.D. programs). 81. See STANDARD 509, supra note 11. These trends were first noted by Northwestern Law student. Shinong Wang, Globalization of U.S. Legal Education: A Case Study of International J.D. Students 5 (May 2015) (unpublished senior research paper, Northwestern University) (on file with author). 82. STANDARD 509, supra note 11. 83. Id. 84. Id.
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U.S. law school through the lens of prospective employers in their home country. Moreover, the ability of international students to transfer is buttressed by the fact that many international students draw on family resources to fund tuition, which renders them particularly attractive in the transfer market where law schools tend to shy away from committing scholarship resources.85 While this information about the presence of international students in U.S. J.D. programs is easily obtainable through the ABA’s website,86 which hosts the Standard 509 reports of ABA-approved law schools, the reports omit a related item of information that is equally important to understanding the ways in which U.S. law schools participate in training and producing prospective global lawyers: namely, students enrolled in non-J.D. programs, and particularly the U.S. LL.M. programs that continue to attract large numbers of international law graduates.87 Nor is such information available elsewhere; in fact, there is no systematic reporting and publication of information regarding the number of international LL.M. students enrolled in U.S. law schools, the number of applicants for LL.M. programs, their home countries, or the sources for funding their U.S. legal education, much less the post-LL.M. activities and locations of LL.M. graduates, or comparable information regarding other non-J.D. programs. In the past, the ABA Section of Legal Education and Admissions to the Bar had published basic information regarding the number of international students in LL.M. programs, but it either no longer gathers the information or simply has chosen to refrain from making current information available publicly or for research purposes. A potential alternative source is the Law School Admission Council, which began participating in the application process for international students interested in LL.M. programs several years ago. It has access to certain information regarding the number of applicants and their home countries but also has not published this information.88 As a result, even the basics are unavailable. A next-best source of information is derived from bar examination activity: international LL.M. graduates who sit for a bar examination in the U.S. may be counted in the statistics reported by the National Conference of Bar Examiners, depending on disclosure by the jurisdiction where they sat for the bar.89 And certain states, such as New York, where most international LL.M. graduates attempt to qualify, also have information about passing rates based on home
85. See Coping with the Consequences, supra note 11, at 230. 86. To find information related to the number of international students enrolled in U.S. J.D. programs, simply go to the ABA Required Disclosures. STANDARD 509, supra note 11 (within the “Compilation - All Schools Data” area, select a particular year from first set of drop down items, and select “J.D. Enrollment and Ethnicity (academic year)” in the second drop down list. The report generated provides only information on J.D. programs; and there is not an option to generate a similar report for LL.M. programs.). 87. See What We Don’t Know, supra note 1, at 1041. 88. Wang, supra note 81, at 4. 89. See Persons Taking and Passing the 2014 Bar, supra note 13, at 12–13 (showing passing rates of foreign-educated persons taking the 2014 bar exam, which could include international LL.M. students, depending on disclosures made by each state). 482 SOUTH CAROLINA LAW REVIEW [VOL. 67: 461 country of the applicants, although there has been reluctance to share this information widely.90 There is little additional information available about international law students, whether in LL.M., J.D., or other degree programs. Law schools typically do not publish statistics on employment for LL.M. or other non-J.D. graduates, and they do not separate international J.D.s in their reporting with regard to employment outcomes. Nor do schools report on whether certain international J.D. students participate differently than their U.S.-domestic peers in law school, whether with regard to course selection, student activities, relations with faculty and their peers, or otherwise. Certain information may be teased out from survey responses to the Law School Survey Student Engagement, for example, and my current research is exploring these issues in greater detail through in-person interviews.91 But the perspective of the law schools, particularly with regard to issues such as course enrollment, student activities, and post-graduation employment, would be valuable. Employment is a particularly sensitive issue for international J.D. students because of visa considerations; they can rely on the Optional Practical Training credential for a first post-graduate year of work in the United States, but subsequently must apply for a green card.92 This is an expensive and lengthy process that requires employer participation, which certain law firms and other prospective employers may be unwilling to undertake. Despite this, law schools continue to admit increasing numbers of international students, perhaps in part to offset declining enrollment problems. The lore of global lawyers is that an enormously important advantage of studying in a U.S. LL.M. program, compared to a similar program outside of the United States, is bar eligibility in the United States.93 But as other jurisdictions adapt their bar eligibility requirements, is the United States on the losing end of competition for international students? Has the imposition of new requirements for bar eligibility in New York affected U.S. competitiveness in the market for international LL.M.s? How have changes in the law school and bar examination regimes in other countries, such as Korea and Japan, affected the interest of
90. See Diane F. Bosse, Testing Foreign-Trained Applicants in a New York State of Mind, B. EXAMINER, Dec. 2014, at 31, 32, 35 (showing passing rates based on home country of candidates). 91. This research indicates that the experiences in law school of at least certain international J.D. students is substantially shaped by their international identities, including with regard to course choices, in-class experiences and relationships. 92. See Understanding F-1 OPT Requirements, U.S. CITIZENSHIP & IMMIGR. SERVS., http://www.uscis.gov/eir/visa-guide/f-1-opt-optional-practical-training/understanding-f-1-opt- requirements (last visited Mar. 31, 2016). 93. See U.S. Legal Education in the Global Legal Services Market, supra note 71, at 29 (quoting Interview with Senior Partner, U.K.-based International Law Firm, Germany (July 2008)) (“The sole distinction of the U.S. LL.M. compared to similar post-graduate degrees offered in other common law jurisdictions, according to international law firm hiring partners, relates to bar eligibility in the United States. A senior partner in a U.K.-based international firm explained, ‘[t]he huge advantage of the U.S. is the route to the New York bar. For the U.K., the LL.M. is not a path to qualification.’”).
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students from those countries in coming to the United States for the LL.M. degree? Is there a shift in interest among international students from the LL.M. to the J.D. or are applicant pools for these degree programs distinct? These issues are among those that would inform policymakers interested in supporting the position of the United States as a participant in educating lawyers who aim to participate in the global legal services market.
IV. CONCLUSION
In 2010, I wrote about the need for data to inform regulators in their work with regard to the global market for legal services.94 Since then, there have been a number of important changes—some positive and some not. On the positive side, perhaps the most important development is an emerging set of relationships being developed by regulators and policymakers based in different jurisdictions.95 These relationships offer the opportunity for exchanging substantive information regarding regulatory approaches and strategies, as well as the chance to develop trust in systems and individuals engaged in similar, if not parallel, work.96 Growth in this direction will enable policymakers to draw on these network resources for a variety of information. On the other hand, there has not been a systematic investment in developing, synthesizing, and publishing information about the ways in which U.S. lawyers participate in a global market for services.97 Various organizations and scholars have focused on particular aspects of relevant information, but a central clearinghouse has not emerged. Nor is this likely, since it requires considerable resources to identify credible data, and to organize it coherently and in a manner relevant to the work any policymaker interested in global lawyer regulation would find useful. In 2010, I proposed a possible collaborative effort of the American Bar Foundation and U.S. law schools to serve in the clearinghouse role.98 That charge was not taken up and the absence of an organizational core continues. The Commission’s commitment to using, identifying, and developing data is a welcome change, and my hope is that it will animate future work of the ABA with regard to global lawyer regulation. At the same time, the need for distance between regulatory and research roles remains an important consideration in enabling research to explore the impact and experiences with regulation. The United States has much to gain from generating a resource to support its lawyers and U.S. law in global affairs. To the extent that such an effort also benefits the U.S. legal profession does not undermine its contribution.
94. What We Don’t Know, supra note 1, at 1078. 95. Terry & Silver, Transnational Legal Practice, supra note 3. 96. Id. 97. See What We Don’t Know, supra note 1, at 1055. 98. See id. at 1075–1079.