The New World
The traditional thinking about legal ethics is that it’s not a field particularly well-suited to international rules.
That approach views every nation’s legal community as the product of a unique social and political environment that is best regulated under its own rules of conduct.
But on a number of fronts, the traditional view is being challenged by revisionist thinking that says some international framework for legal ethics must be created as more lawyers engage in transnational practice in an increasingly global economy.
“I think that’s possible, and in the coming decades it’s going to become more necessary,” says Stephen Gillers, a professor at New York University School of Law. “We’ll need to agree on a common language of ethics.”
Other ethics experts and lawyers in transnational practice agree that more attention should be given to professional conduct and regulation issues in a global context. “We all have to learn a lot more about other systems and how they work,” says Nancy J. Moore, a professor at Boston University School of Law. She served as reporter to the Ethics 2000 Commission when it conducted a comprehensive review of the ABA Model Rules of Professional Conduct. Many states base their own ethics codes on the Model Rules, though often with variations.
The trend toward globalization makes it all the more important to address the issue, according to the experts.
“Many practicing lawyers face comparative and global legal ethics issues on a daily basis,” wrote Laurel S. Terry, a professor at Pennsylvania State University’s Dickinson School of Law, in “U.S. Legal Ethics: The Coming of Age of Global and Comparative Perspectives,” Washington University Global Studies Law Review, Spring 2005, page 463. “Any firm that has offices in multiple countries, staffed by lawyers from different countries, must determine which ethics regulations to use. Furthermore, practicing lawyers must learn to identify cultural differences in ethics rules.”
Expanding Options
The doors to transnational practice by lawyers are expected to open even wider when GATS—the General Agreement on Trade in Services—goes into effect.
GATS is one of the agreements reached in conjunction with the creation of the World Trade Organization in 1994. It will govern how the WTO’s nearly 150 member countries—including the United States—regulate service providers, including lawyers, from other countries. The agreement is expected to make it much easier for lawyers from one country to practice elsewhere, at least on a temporary basis. Ethics experts also expect GATS to trigger widespread re evaluation of lawyer regulatory systems in the United States and other countries. (See the ABA’s Web page about GATS.)
“Without doubt, GATS will encourage more foreign lawyers to practice in this country,” says William P. Smith III, general counsel to the State Bar of Georgia. Smith chairs the GATS subcommittee of the ABA Standing Committee on Professional Discipline. The concern, however, is whether that influx might lead to the development of two sets of ethics rules: one for those foreign practitioners and the other for domestic practitioners. But even looking beyond the implications of GATS, underlying ethics principles for lawyers are being challenged by social and political changes worldwide, say ethics experts in the U.S. and other countries.
Speaking during a program at the 2005 annual conference of the International Bar Association, Guy Mansfield of the Bar Council of England and Wales said lawyers everywhere face conflicting pressures from clients and government regarding ethics. Clients, on the one hand, want lawyers to interpret rules loosely when doing so brings commercial benefits, Mansfield said, while government seeks to impose more controls on the legal profession.
In this unsettled environment, more ethics experts, practitioners and legal organizations have begun thinking about what the ethics framework should be for a legal profession that is becoming more global.
In 2002, for instance, the ABA’s policy-making House of Delegates adopted revisions in the Model Rules that make it easier for lawyers licensed in one state to practice, at least temporarily, in other jurisdictions. The revisions also sought to clarify choice-of-law rules for disciplinary actions against lawyers from outside jurisdictions.
At the same time, the House reaffirmed its support for a separate Model Rule for the Licensing of Legal Consultants, originally approved in 1993, that permits foreign lawyers to serve as consultants to American lawyers on matters being handled in the United States. The House also adopted a Model Rule for Temporary Practice that in effect allows foreign lawyers to practice in U.S. jurisdictions under certain circumstances. The measures were recommended by the ABA Commission on Multijurisdictional Practice.
Gathering Common Principles
At another level, proposed revisions to the international Bar Association’s code of ethics will be submitted to the IBA council in May. The council is expected to discuss the revisions when it meets in September during the association’s 2006 annual conference in Chicago.
“I see the role of the IBA code of ethics as the guiding, common ethics principles for lawyers around the world,” says Ramon Mullerat, a lawyer in Barcelona, Spain, who is on a committee responsible for finalizing the draft being submitted to the IBA council. “The code should be primarily an aspirational statement of common principles,” adds Mullerat, who also is a council member for the ABA Section of International Law. “On an aspirational basis, it’s a healthy thing to do,” says Smith of the IBA effort, but when it comes to ethics and discipline, “the devil is in the details.”
And nowhere is that more true than in the United States. “Our ethics rules are much more evolved, detailed and specific” than in other countries, says Moore. “No other country has a discipline system as detailed as ours,” she adds.
That makes the U.S. approach different from those in many other countries, but whether it’s better depends on whom you ask, notes Philip H. Schaeffer, a senior partner and general counsel at White & Case in New York City. “The Europeans look at us as primitive” on some ethics issues, such as conflicts, he says. Meanwhile, U.S. lawyers often unknowingly violate various regulatory rules of foreign jurisdictions.
A more intriguing development than the IBA ethics code, U.S. ethics experts say, is the Code of Conduct for Lawyers in the European Union. That code was adopted in 1988 by the Council of Bars and Law Societies of Europe, which is known as CCBE, and revised in 1998 and 2002.
The CCBE code—more detailed than the IBA’s code—is intended to govern lawyers from European Union member states when they engage in cross border practice elsewhere in the EU. The CCBE code has been adopted by all 25 members of the European Union, which are responsible for enforcing its provisions through their own regulatory structures. “What’s new about the CCBE code,” says Mary C. Daly, the dean of St. John’s University School of Law, “is that it’s an attempt at regulating lawyers in transnational practice.” She and others say the CCBE code may provide an important reference point for developing rules that might also encompass U.S. lawyers engaged in transnational practice.
For lawyers outside the European Union, including U.S. practitioners, there is little guidance on ethics matters when they practice in foreign jurisdictions. While Rule 8.5 of the ABA Model Rules applies the conduct and discipline rules of a lawyer’s home jurisdiction regardless of where the lawyer practices, whether those rules will be enforced in a foreign jurisdiction is largely unsettled, says Moore.
As a result, she says, “sometimes U.S. lawyers act like they’re in an ethics free zone” when they practice abroad.
At the very least, according to Moore, there should be greater agreement on choice-of-law rules when lawyers face possible discipline for ethics violations in foreign jurisdictions.
Advising Transnational Lawyers
Gillers suggests going a step further to develop separate professional conduct rules for lawyers when they engage in transnational practice while retaining existing local ethics rules for domestic practitioners.
It’s an idea worth studying, others say. Daly, for instance, suggests that the ABA form a task force with the CCBE to start the process of drafting an ethics code for transnational practitioners.
And Schaeffer is even more emphatic: “I beg people who run the ABA to talk to people who do what I do to start thinking about the problem” of ethics regulation for lawyers in transnational practice.
But some experts also wonder whether more extensive regulation of lawyers at an international level would threaten the sovereignty of the statebased ethics structure that now exists in the United States. “It’s really going to be a challenge,” Smith says.
Meanwhile, others believe that the regulation of lawyer ethics eventually will be a global affair. That may not be possible yet because there still are too many differences in how various jurisdictions regulate lawyers, said Mullerat at the IBA’s conference last year. “But a global code of conduct is not beyond the realm of human behavior,” he said. “It is certain we will have a universal code. The question is when.”
