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DEAN KRAMER:
Walter, you're the most international of all the practitioners. You come to the United
States twice a year to help run the Individual Rights and Responsibilities Section and
then leave to go to Moscow. What rules are you under? What restrictions do you feel? What
disciplinary code controls you?
WALTER WHITE:
It was interesting to hear that California has admitted eleven foreign lawyers, because I
have five lawyers in my office, Russians and Kazaks, who have taken and passed the New
York Bar Exam. My office is almost as large as the foreign admission in California. It's a
very murky issue. I'm admitted in Russia. I am admitted in Washington, D.C. and in
Wisconsin, which is where I started practicing law, but we train our people to comply with
the D.C. Code. That is because our home office is based in D.C. In essence, we license or
regulate ourselves by contract. We put in our retainer letters with our foreign clients
that we are governed by the D.C. Code. That accomplishes several things. First of all it
gives us a focal point, and, second, it give us the ability to get out of representation
of a client if it provides conditions under which we no longer want to represent them.
DEAN KRAMER:
David, how do you train your people, who controls them? Who decides how they should
behave?
DAVID STRETCH:
Baker operates pursuant to a somewhat different model than most international firms. Most
of our offices are staffed by local attorneys admitted to the local jurisdiction. We dodge
the question by always having a group of people who are fully admitted to practice
wherever we are. There are some places, in Korea, I believe, and South Vietnam and some
others, where you have to work in other ways.
DEAN KRAMER:
What other ways?
DAVID STRETCH:
By setting up a separate firm that's really not part of, or fully part of Baker McKenzie.
Baker McKenzie is an Illinois partnership. It's a global, single partnership which causes
problems and has certain advantages, as well, in terms of our structure. We do what Walter
does. We tell all our clients, and I think client focus in this is really the only proper
one to take, at least certainly initially, that we adhere to the ABA Model Rules or the
local jurisdictional rules on ethics, whichever is more stringent. We will adhere to
either one and almost invariably that winds up being the ABA Model Rules. That is very
comforting to clients. Clients like to know globally, that not only in the office that
they're dealing with -- say they're dealing with the Almaty office -- that if part of the
deal is in Bogota, that the same rule is going to apply there as well. We're not going to
choose which set of ethics rules are going to apply. There's going to be a uniform rule to
how we operate globally that is client-driven, but it does cause problems for any firm
that tries to do it. One of the difficult problems is educating foreign lawyers as to what
those American standards are, given cultural differences.
DEAN KRAMER:
Do you use American lawyers in foreign offices who are not admitted in those offices, but
practice under the wing of lawyers who are?
DAVID STRETCH:
Some do, some of them don't. I just don't know. Generally speaking, like Walter, in most
of our foreign offices, there is a UK or US admitted lawyer who is also admitted in the
local jurisdiction. He's the partner or she's the partner-in-charge of that office.
DEAN KRAMER:
Nobody else needs to be admitted, do they? Is this sort of the paralegal model if, in
fact, they act under the supervision of the locally admitted person?
DAVID STRETCH:
That can happen. In our Mexican offices, the notarios -- Deborah has reassured me on that
-- do a lot of work. It is a separate operation and that kind of separation of the task
and the people who do the task has happened in many offices.
DEAN KRAMER:
Have the notarios gone to law school?
DAVID STRETCH:
No. Some of them have not.
DEAN KRAMER:
John, what does this bode for the globalization of the law schools? Where is our future
role if, in fact, many of the people do not need to go to law school and do not need to
pass the bar of the local place in which they work?
DEAN JOHN SEXTON:
First of all, a bit of an apologia, because my answer to your question will put me in the
position of being something of a Luddite. Let me give a personal viewpoint of this debate.
In 1993, we announced, with what was perceived at the time as some considerable risk, that
we were going to create the first Global Law School. It's interesting that to the extent
that folks poked fun at it then, it was around the word "global." To the extent
that folks poke fun at it now, it's around the word Afirst." In other words, today,
everybody is first. Dean Clark says to me: "You've got to acknowledge Harvard is the
first Global Law School." It's now a battle over where the turf is. I embrace the
context and I particularly embrace the notion that we're on the verge of a paradigm shift,
and things will be very, very different. We are already bringing in literally a world
faculty into our building through the Internet and so on.
There are two parts of this issue. One is how do
we decide who's authorized to practice law in each of the fifty-one jurisdictions with
which we deal here in this country nationally? Here's where the Luddite begins to come in.
I mean, I'm authorized to practice in New York. I wouldn't be allowed to practice in
Wisconsin or California under the present regime unless I went through some kind of
process. In that context, we should at least understand what's at stake in the entry
debate, if we begin to allow lawyers from around the world to practice in our various
jurisdictions. It would be hard to resist allowing lawyers from other states to practice
in our jurisdictions. That reveals the breadth of the question and what is at stake in
the, what I'll call entry-to-practice notion. Two thousand ten, 2020, what it means for
education, that's the question.
For me, the paradigm of my life as an educator is
captured in the image of the greatest teacher I ever had, a fellow named Charlie
Winans,
who taught me for four years in high school, rowing around Prospect Park Lake with me,
discussing The Power and The Glory, or whatever it was we were reading that week. And the
best moments as a teacher that I've had, have not been in the classroom, but have been in
serendipitous conversations with students after class or with a colleague at the water
cooler, who, when I was writing a religious liberty article or a civil procedure article
and he or she was a tax colleague, asked me the question that challenged my basic
assumptions. Serendipity and human contact is very much at the heart of what it means to
me to be a teacher. That's the scariest part of the cyberspace, technological world that
never allows that, where you have to go out and deliberately seek that. That gives some
understanding of my concern. I'm going to be a real Luddite. The Section's accreditation
process is not just about competency and it is certainly not just about creating an
economic barrier. If we approach this as an economic barrier, a GATT issue, there is a
powerful parity argument with the Barristers and Solicitors. We will be right down the
European Union path, using you as a vehicle. If there is something to the notion that
Jefferson had about combining the university and the preparation for the practice of law,
if there's something to the special role of lawyers, this has to allow room at both ends
of the spectrum: to give some of the work we now husband in our monopoly to ourselves to
people who are not "lawyers" but are other paraprofessionals on the one hand,
and to create advanced specialization or certification on the other hand. If there's
something to that, then I would seize the ground of arguing that the American model that's
behind the marriage of a bar exam and three years at an ABA accredited school by which we
mean something. In other words, you don't get to be competent by one or the other, except
in very rare cases, but rather, by the marriage of those two and that has to do with the
role of law in society and the lawyer as professional in society. I believe that a certain
amount of reflective time studying in a contemplative atmosphere is important to that.
Even in, it may be especially in, a globalized world, with all the stimuli that come from
different perspectives. I think a powerful argument can be made that regulation written
worldwide ought to include that as a component for that narrow band of people who are not
simply writing uncomplicated wills, but whom we would call lawyers in the thoughtful sense
of that word.
DEAN KRAMER:
That answer is intriguing because we in the Council of the Section have never defined the
standards that way. Is it OK to go to school for two days a week and after three years,
pass the requisite number of exams, sit for the required number of hours, have all the
minutes you need in courses and then sit for the bar exam and become a lawyer? The
challenge, almost like a foreign challenge, of somebody saying we're going to have a
two-day school week forced us for the first time, to try to come up with the kind of
definition you're suggesting of what the real meaning of law school is. Is it the
standards we have now, or is it something more ineffable that we better put into words if
we want to defend it, that talks about that kind of exchange and that kind of intensity of
relationship and, as Deborah would talk about, the pro bono aspects of the law school and
the other kinds of things that are not yet mandatory in our Standards. That has not
happened yet, but the challenge is coming. The challenge of the outsider does that. Now,
Phillip, you got the challenge underneath, as well as on top, and this, of course, is what
Deborah is an expert at, that is from the nonlawyers, the paralegals. Back in 1989, you
passed a statute allowing other people to deal with real estate transactions. What's
happened with that?
PHILLIP SYCAMORE:
We had it actually in 1990, in the Courts Legal Services Act, which the last government
introduced to open up competition in areas which had traditionally been reserved areas for
solicitors and barristers. There was provision for a new concept of someone to provide
real estate services called a licensed conveyancer and there have been some takers, but
not a huge amount. I have a very strong view of this, I actually don't believe that as we
approach the next century that we, as lawyers, can assume that clients will come to us
because we've done this sort of qualification route, (which you've described and the one
I've described) as a matter of right. I have no difficulty in talking to my colleagues in
England, and saying, face competition and see competition actually as a challenge. You
can't assume any longer that people will come to you because you benefit from restrictive
practices. What you must do is demonstrate that people should come to you because you're
the best. By having an effective trading system, by inculcating the ethics, by having
complaint systems, by having indemnity insurance systems and compensation fund systems,
and excellence, in terms of training and a commitment to training, we ought to have the
courage to go to the marketplace and say, yes, of course people will provide some services
we can provide, but we provide them because we're the best. That's the excellence which, I
think, regardless of our differences on approaches to training, we need to emphasize. I
have no fear about the opening up of certain aspects which we've seen as reserved in the
past.
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