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DEAN KRAMER:
I think there's a very clear difference with conveyancers or real estate brokers who
wouldn't know how to spell the word Aconflict".
PHILLIP SYCAMORE:
That's exactly why, as professionals with rules and ethics, we can demonstrate that we are
the best.
DEAN KRAMER:
Jim, you are on the Board of Governors. Deborah, when was the Nonlawyer Practice
Commission that dealt with the legal assistants issue in existence?
PROFESSOR DEBORAH RHODE:
Well, 1993 to 1996 I think was the time.
DEAN KRAMER:
Jim, whatever happened to their report? That was the first real direct threat to the
market control.
JAMES SILKENAT:
There are a lot of threats, I think, to market control. The one that has struck me as the
most interesting is that a transaction lawyer in Rome or in Brussels does pretty much what
I do on a day-to-day basis. They look at the same sorts of contracts, they have the same
sorts of negotiations. On the other hand, a personal injury lawyer in Brooklyn, that's
admitted in the same way, to the same state that I am, I have no clue what they do and I
couldn't perform their role as a lawyer at all, and they may not be able to perform the
role that I play, doing transactional work. But, the Bar Admissions/Bar Regulation
structure hasn't taken account of that change. What lawyers do has changed, but I'm afraid
the rules regulating how they become admitted and what they are admitted to do, hasn't
changed to keep up. I dodged your question.
DEAN KRAMER:
No, you didn't ultimately, because we know that, in Europe it's changing because there's a
governing and overriding treaty. We really haven't quite figured out the top down change
mechanism here, since it is clearly bubbling from the nonmarket bottom up. The
accreditation system isn't going to willingly divest all of its power. The lawyers aren't
willingly going to give away all their market. And the state supreme courts aren't going
to give away all their power. And, of course, under most local separation of power
doctrines it is they, and not the state legislatures, that control the Bar and the rules
of the Bar. How do we affect this change? Is it the market that's going to override? I
know you believe that, Walter. Is it really going to make that much difference?
WALTER WHITE:
In certain areas, the market is clearly going to override. It already has. Any large firm
practicing in the United States is practicing nationally whether or not they have people
admitted in local areas. It is not just true with national firms. If you look at high
profile divorces, there are divorce lawyers who do the same thing. There are American
lawyers in Moscow, who handle transborder divorces, who handle adoptions and the like, and
Russian lawyers doing the same thing in New York. It's a big business. It's not the
business that we're in, but it's a big legal business.
DEAN KRAMER:
How is that regulated?
WALTER WHITE:
I don't know how it's regulated. I guess the difference between that practice and the
practice that we have is that our clients tend to be sophisticated enough to tell us when
they're dissatisfied with our services and figure out a way to make it work.
DEAN KRAMER:
You mean the consumer assumes the risk with you, but not necessarily with a divorce or
adoption lawyer.
WALTER WHITE:
I don't know how they do that. There is a regulatory system in Russia. The Ministry of
Justice regulates lawyers and for those of us who are foreign, we have our own regulatory
systems, be they the U.K. or France, or the United States. The law firms figure out a way
to abide by both regulatory structures. But it is a difficult environment, and there are
conflicts between the systems.
DEAN KRAMER:
Diane, how much of the State Bar of California's activity is focusing on unauthorized
practice here by nonlawyers? Or by lawyers not admitted here?
DIANE YU:
Actually, in the last year, quite a bit. We followed primarily a litigation route more
than anything. The State Bar and the Attorney General of California joined together to go
against a trust mill that was operating in Orange County and throughout the State. We
succeeded in reaching a very substantial settlement with over a million in penalties and
restitution for some twenty-six thousand clients that were sold cookie cutter trusts and
then sold insurance by the same people who had gotten in the door and sold them the trust.
We've also been involved, at the request of the Supreme Court and others, in some
litigation involving violations of the pro hac vice rule, where out of state lawyers were
coming into California. One lawyer filed on behalf of a number of out-of-state lawyers in
federal district court recently and sued every member of the Supreme Court of California.
Eventually, when we intervened, they sued all the members of the Board of Governors and
the State Bar too. The court recently dismissed that action, because there is controlling
Ninth Circuit law that says these rules need to be abided by.
There has been some legislative activity here and
there, but nothing pending right now for this year's session in the State legislature.
There is clearly a great deal of interest. I think lawyers look at this in a lot of
different ways. It depends on whether or not the practices of a particular lawyer could be
directly affected by those who would like to practice in the area of whatever it is,
bankruptcy or immigration or family law, where there are a number of paraprofessionals and
legal technicians quite active in assisting. Many of them operate under the supervision of
a lawyer and there's no difficulty there, because a lawyer ultimately will be responsible
for the work product. If anything goes wrong, there's recourse to a discipline system and
client security fund. But, we recognize there are pressures. Personally (I'm not speaking
for my organization), I am very firm on principle, but flexible on means. To have no
regulation at all is a problem. Most people resist having too much regulation, so it is a
fascinating conflict.
DEAN KRAMER:
Jim, what is the current configuration of the New York City Bar? It used to be basically
controlled by most of the elite firms in the city. It wasn't your stumble-bum practitioner
-- they didn't have the time, they didn't have the money, they didn't have the
opportunity.
JAMES SILKENAT:
As a member of that Bar, I'd like to say yes, but it's very broadly based now.
Practitioners in all guises, all different forms, even including some law professors.
DEAN KRAMER:
Are you moving towards opening the doors to England and other groups?
JAMES SILKENAT:
The City Bar actually -- which is a nonmandatory Bar, is voluntary -- is playing a very
strong role in trying to open things up, trying to make it easier for foreign lawyers to
do things in at least New York City, to be user-friendly in that way and to help U.S.
firms as they operate abroad. Frankly, I'm slightly pessimistic about the future there,
where I think, if there are any changes in the rules, in particular dealing with U.K.
lawyers coming in, the changes are likely to make the situation tougher rather than making
it easier, at least in the short term.
DEAN KRAMER:
The other half of this program is on the whole question of training and what we ought to
do to meet the fact of globalization. We're assuming that we're not moving rapidly towards
people overcoming state and national borders because the rule makers aren't too happy
about changing the rules. Let us assume, however that those changes were to occur and are
occurring. What do we do, John Sexton, to change the way in which we train American law
students and the way we bring others from other countries into our training process?
DEAN JOHN SEXTON:
Training in a law school setting reduces itself to putting students and faculty together
and making sure they're engaged with each other. Then this issue simply becomes one of
perspective. There's an undeniable reality there that virtually all of our graduates are
going to be practicing in the kind of context that was described by our opening speakers.
That means introducing a broader and broader perspective into the education. I teach first
year Civil Procedures and call that Dispute Resolution. You teach Dispute Resolution in a
very, very different way if you have, as I did for more than half the course I taught last
time, in the back of the room and as a participant at the faculty level, a Japanese expert
in Dispute Resolution. It is just a very different approach. You become much more
self-conscious about the fact that we got it right in America. Suddenly, the entire
perspective of the course is broadened and deepened. We are going to have to open up the
way that our faculty think about their work, their teaching, and their scholarship, and
insist in the main core that it be measured against this new phenomenon of globalization.
We are going to find introduced into our classrooms student perspectives from around the
world. It will help at every level. The best question I've ever been asked in teaching
Constitutional Law I was asked when I was teaching Roe v. Wade to a group of students,
foreign law students, and a woman from China raised her hand and asked me to apply the
decision in Roe v. Wade to what she stated was her government's policy (assuming the
applicability of our Constitution there) that required her to abort her child. There has
never been a question that I've been asked that revealed so quickly that Harry Blackmun
did not create an absolute right. You can talk about trimesters to students all you want,
and they don't get the fact that he didn't create an absolute right. It's that kind of
perspective I think, that is an added dividend that comes with introducing this element.
DEAN
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