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MARY KAY KANE: I
would like to welcome you to the Annual Program of the ABA
Section of Legal Education and Admissions to the Bar. My name
is Mary Kay Kane and I'm the Dean at Hastings College of the
Law, here in San Francisco. I am serving as this year's Program
Chair, and so I want to take this opportunity to acknowledge
my fellow committee members, who were so instrumental in helping
to plan today's event. They were Dean Frank Newton of Texas
Tech University School of Law, Dean Kristine Strachan of the
University of San Diego Law School, Professor John Wilson
of Golden Gate University Law School, and Ms. Diane Yu of
the California State Bar.
Our
program is entitled, "Opportunities and Challenges for
Lawyers and Legal Educators in a World Without Borders."
The globalization of the world economy is now an established
fact, and transnational business and movement between countries
have become commonplace. But, what does that mean for the
legal profession, other than the obvious fact that the legal
needs of clients and, indeed, entire new potential client
populations, are growing and shifting? In particular, what
should we posit or consider about how the profession will
need to adapt its traditions and values as they are reflected
in our current licensing regime and respective codes of professional
responsibility? And what role should legal educators play
in developing the necessary training techniques and academic
programs to best ensure that those practicing in this new
global environment are well schooled in what is needed? These
questions, obviously, cannot be answered in the space of an
afternoon's discussion. However, today's program seems to
be an ideal place to begin the exploration of the impact of
globalization on the profession in these two arenas. Thus,
what we're hoping to accomplish this afternoon, is to start
a dialogue on these issues -- a dialogue that can be pursued
in the months and years ahead, both in the Section, as well
as in the broader reaches of the bar and the legal profession,
generally. To do that, we have been very fortunate in being
able to assemble an incredibly informed and accomplished array
of people to share with us some of their thoughts and reactions
to these future opportunities and challenges.
The
format we are going to use today is a little different than
often is the case. We will begin this afternoon's program
by two presentations that will provide us with some perspective
on what lies ahead. The first speaker will be Professor Deborah
Rhode of Stanford Law School. Professor Rhode is widely known
as one the nation's leading experts on the legal profession
and professional responsibility; indeed, she serves as the
Director of the Keck Center for Legal Ethics and the Legal
Profession. She also, I should tell you, has just published
a book, earlier this year, which is entitled, "Speaking
of Sex." Unfortunately, this publication doesn't have
anything to do with professional responsibility, but I thought
I'd bring it to your attention. It most certainly illustrates
that she has some wide-ranging credentials, indeed, she is
going to talk to us today about the impact of the expanding
legal market on the profession and what may need to be considered
there.
The
second speaker will be Professor Robert Berring, who is the
Director of the Library and a Professor of Law at the UC Berkeley
School of Law. But his titles really don't tell you enough.
Bob is well known in the library world as a technology whiz.
And, as a law professor, his specialty is Chinese Law. So,
he is going to speak about technological advances and how
they may offer opportunities for the global practice of law,
as well as for legal education.
After
Professor Rhode and Professor Berring have concluded their
presentations, we will take a ten minute break. When we come
back, we will reformat for the remainder of our program, which
will feature an interactive roundtable discussion of the eight
experts listed in your program. That discussion will focus
on licensing and training issues in the global environment.
I will introduce the other panelists at that time and, at
this point, I would like to turn the podium over to Professor
Rhode to begin this afternoon's program.
PROFESSOR
RHODE: It's a great honor and pleasure to
be part of such a distinguished group. I feel some regret
after that introduction about not figuring out ways to integrate
sex more pervasively throughout the course of this presentation.
I don't even have a sex-related anecdote on point. Rather,
I thought that since we are at an American Bar Association
meeting, I should start with one of the time honored tales
of professional ingenuity and ethics, probably retold for
decades at meetings of this sort. It involves the only lawyer
in a small town. It was a culture that did not take highly
to lawyers or have much truck with law, and he had some difficulty
making ends meet. Then, another lawyer moved to town and suddenly
they both prospered.
That
story holds metaphorical significance for what is happening
globally, and it captures the kind of ambivalence with which
many of us experience the influx of lawyers from other cultures.
In one sense, of course, that global movement is not news,
but history. Certainly transnational practices have long been
with us in fact, if not in form. It's been over a century
since Coudert Brothers first opened its Paris office. But
only in the last couple of decades has there been a large
influx of practitioners and pressure to respond to what is
increasingly becoming, as Mary Kay Kane reminded us, a fact
of life.
It is in that context that I think our profession is
feeling somewhat caught in the crossfire of competing economic
realities. On one level, of course, the rationale for challenging
traditional boundaries to legal licensing and educational
structure, is obvious. Globalization is inevitable. Markets
are becoming increasingly international. Clients demand and
deserve representation that crosses national boundaries. Lawyers
are feeling enormous pressure both to meet those demands and
to respond to their own needs for expansion into new markets.
Obviously,
much of that trend is driven by the economics of both American
legal practice and transnational commercial practices. This
country is turning out lawyers at the world's fastest rate,
and the opportunity to export some of them is certainly desirable
for many local competitors. But there are also other benefits
that lawyers perceive in globalization that have to do with
the status of being affiliated with foreign offices. There's
an obvious cachet that comes from having an office in Beirut.
Other benefits include opportunities to receive referrals
on international business and to learn from lawyers from other
practice contexts.
At
the same time, of course, there are reasons for resistance
to globalization, some legitimate and some--how shall we put
it -- less legitimate. The argument for a national system
of licensure and education stresses things like the need for
competence, discipline, and protection of the host country's
legal practices from the disruption that comes from a lot
of outsiders with only a kind of vague grasp of the basics.
There are also economic reasons for resistance that I don't
need to dwell on in this room. Turf battles occur at every
conceivable level -- among courts, among bar organizations,
among accrediting institutions, among national legislatures.
At issue is who should have the right to control the terms
of legal practice.
There
are also some more subtle costs of globalization. As the world
becomes more international, more economically driven, a lot
of things can fall by the wayside. One concern that many have
expressed is that lawyers who are practicing in other countries
may not have adequate investment in bar organizations and
involvement in bar pro bono or professionalism projects. Foreign
lawyers may see little need for involvement in domestic concerns
like the distribution of legal services for which organizations
such as the ABA can claim a distinguished record.
One
result of these concerns has been the retention of substantial
barriers to entry, both at the level of formal law and social
practice. And because I've been cast in the role of providing
a brief overview, I'll just list a few obstacles to globalization,
together with some of the problems that they pose for developing
a sane system of international practice.
The
most obvious barriers are the legal restrictions that many
jurisdictions continue to place on any practitioner licensed
outside their boundaries. The United States probably has among
the most restrictive practices towards other nations' lawyers,
while also exporting the most of its own to other countries.
It's unclear how long we can benefit from that bifurcated
system. But we're not the only ones who impose bans on unlicensed
foreign lawyers. Many others -- such as Luxembourg and the
Swiss cantons -- restrict access to professional licensure
to citizens or to those who can demonstrate a number of other
credentials that are hard for foreign lawyers to obtain. Immigration
laws in some countries are used to control nonlawyer practice
and others restrict the kinds of services that invading lawyers
can provide. For example, they may be able to advise only
on the law of their home country or on international transactions,
which ignore all those contexts in which such advice requires
attention to the legal realities of the host country. There
are also conditions on who can practice and under what circumstances
-- for example, requirements of reciprocity, examination requirements,
and a range of other formal barriers to entry.
There
are also quite a number of informal barriers. The most obvious
ones have to do with differences in language, cultural styles,
negotiating, lobbying practices. Some have to do with the
networks of referrals through which business is passed, in
which foreigners are often times made to feel like outsiders.
There
are, of course, quite a number of ways around all of these
formal barriers. I think that's led us to a somewhat anomalous
situation. If you look at the numbers of lawyers who are licensed
to practice in another jurisdiction, they tend to be trivial.
In this country, according to the most recent estimates, the
number of formally admitted outsiders is less than a half
of one percent of American lawyers. But, certainly, many,
many more foreign practitioners are involved in advising or
in working on transactions outside their state or nation of
licensing. People are in violation of local practice rules
constantly and inevitably in any context that requires some
grasp of transnational boundaries in order to give competent
legal advice. If you ask someone currently who is in a branch
office in another country from one in which his home institution
has its main office, whether they are in compliance with the
local bar ethics rules, you'll probably get an answer somewhat
like the William Hamilton cartoon in the New Yorker. There,
one of the lawyers explains his practice as, "Well, not
unethical exactly, just complex. Legally, very complex."
And, of course, complexity is the rule given the local practice
rules under which many lawyers find themselves.
The
norms for practice for foreign lawyers are confused and confusing.
Even in the jurisdictions that have made the greatest strides
towards welcoming outsiders, you see an enormous range of
unsettled questions about what the appropriate boundaries
of practice are. To give you just one example, in the European
Community, which has attempted to relax restrictions, at least
for members of other nations that belong to the Community,
you now have a system that recognizes the rights to provide
service from your home institution on matters of foreign law
or to engage in ad hoc practice in other countries. Foreign
lawyers also have the right of establishing an office if they
meet certain minimum qualifications, at least under the Community's
provisional draft guidelines. But a lot of questions are left
unanswered under this structure about whose rules apply and
under what circumstances local rules will trump those of the
home country. The Council of the Bar and Law Societies in
the Community has put together a Code, but that Code speaks
at an extremely general and abstract level. It talks in broad
terms about obligations of confidentiality, client loyalty,
competence and so forth. But then it has some general qualifying
language about whether its rules apply without prejudice to
the host state rules. That leaves unclear, in many circumstances,
whose rules trump, and there are lots of examples of lawyers
caught in the cross-fire of conflicting rules. To cite just
a few areas in which the norms are highly diverse across nation
states, consider solicitation, fee splitting, advertising,
referral practices, contingent fees, fee schedules, conflicts
of interest, confidentiality, and disclosure of client fraud.
Under the American Model Rules of Professional Conduct, American
lawyers practicing abroad are supposed to be bound by the
Model Rules. However, there is no mention in those rules or
in the ABA Code of Professional Responsibility or in most
European documents to what happens when you get caught in
conflicting enforcement patterns. We haven't even begun to
unravel some of the tangled difficulties that competing rules
will create. We're muddling through, in part because no disciplinary
authorities are now eager to address these kinds of conflicts,
and in part because most disciplinary bodies are too understaffed
and underfunded to deal with their own problems of local lawyers,
let alone all of the problems that might conceivably be posed
if they started to seriously enforce their own foreign practice
restrictions or look at the practices of foreign lawyers.
Well,
where does this all leave us? I think this kind of chaotic
situation can't endure indefinitely, but in the short run,
we'll probably see more of the same. That is, we'll try to
muddle through and further muddy the waters, rather than get
some kind of global, or even regional, agreements about sane
licensing structures. Certainly, the handwriting is on the
wall with NAFTA and GATT that we're going to be moving in
the direction toward greater recognition, and, to borrow the
NAFTA phrase, "harmonization of certification requirements"
by developing mutually acceptable performance standards. But
that, of course, is far easier said than done, especially
in countries with federal law systems or local structures
that have different educational structures, apprenticeship
requirements and so forth.
What
is to be done? Fortunately, coming up with answers is far
beyond the time I have allotted to me, so I'm just going to
leave you with two broad questions, and hope that the panel
conversation after the break will take up some of those big
issues. Most obviously, the current situation with respect
to globalization points us in the direction of a fundamental
rethinking of the role of licensing structures in general.
That has some obvious implications for our domestic system
of licensing. Our current state-by-state regulatory structure
and its prohibitions on practice by nonlawyers who have technical
expertise in certain fields is becoming increasingly anachronistic.
For the last couple of decades, I've been writing on the need
for relaxation of the professional monopoly in the domestic
market, especially over nonlawyer competitors. What the globalization
trend forces us to recognize is that three years of law school
and passage of a state bar exam is neither necessary nor sufficient
to do a lot of the routine tasks that nonlawyers are providing,
let alone a lot of the expert tasks that foreign lawyers could,
and should, provide if they came into domestic jurisdictions.
I
retain some hope that thinking about these questions through
a global lens is going to force us to think about some saner
ways to solve the problems of distribution of legal services
than we do. Paraprofessionals in other countries provide some
of the kinds of advice on routine matters that are restricted
to lawyers in America. Hopefully, some of those models will
be imported.
I'm
not overly optimistic about how easily that can be accomplished.
I was reminded of that as I was sorting through my literature
on this subject in preparation for today's panel. I came across
a colloquy that occurred in June 1649, when an Englishman
appeared in Kingston Court of Record to answer a writ of trespass.
The abridged account of the exchange went something like this:
Q:
"Where is your attorney?"
A:
"What attorney, sir?"
Q:
"You're required to produce an attorney."
A:
"I'm well versed in the law, sir, and am capable of conducting
my own case. Lawyers serve the gentry, what use are they to
me?"
Q:
"It is the law that you produce an attorney."
A:
"A law evidently made by attorneys."
What
that invites us to consider is what licensing law would be
if it was made by somebody else. What kind of a structure
would decision makers devise if they were truly responsive
to the range of societal and global interests at issue? That
is something we need to think more about. And we can think
about that as legal educators in a context in which the public
is increasingly going to demand change.
Certainly,
these are issues at the forefront of the American Bar Association's
agenda. If you ask lawyers what are the main problems facing
the profession, public image is right up there, and a lot
of lawyers, especially at this convention, are still very
much engaged in the process that was captured in a recent
New Yorker cartoon. It featured a lawyer introducing
himself at a cocktail party with a line, "I'm a lawyer,
but not in the pejorative sense." I think we won't begin
to change the image until we change the reality. One of the
things that we can do, as legal educators and as members of
organizations like the American Bar Association, is not just
prepare our students to live in a world without borders, but
to question the ones that we have remaining and to think about
ways of setting up a saner system to deal with the problems
that are now, I think, very much at the forefront of all of
our consciousness.
Thank
you.
