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November 2006The Global Practice of Lawby Ellen Conedera Dial, WSBA President In our brand-new Rules of Professional Conduct, you will find an entirely new rule entitled (in part) “Multijurisdictional Practice of Law.” Rule 5.5, based on the ABA Model Rule, creates a framework for regulating lawyers’ conduct when their work takes them into other states. I like this rule, because it acknowledges the reality of law practice today as an enterprise that is not limited by the political boundaries of individual states, but rather is driven by the business and personal needs of our clients. The more states that adopt Rule 5.5 as a part of their ethics rules, the greater the flexibility we will have to meet those needs efficiently and effectively. I think that is good for our profession and for our clients. We also have a new Admission to Practice Rule, APR 8(f), that allows lawyers licensed in other countries to practice law in Washington so long as their only clients are their corporate employers. This international in-house lawyer rule recognizes that businesses today compete in a global economy, where geopolitical boundaries are crossed both physically and electronically countless times every day. RPC 5.5 and APR 8(f) are “local” by their very nature. Rule 5.5 regulates lawyers admitted in other states who have a temporary presence in Washington. The rule will apply to Washington lawyers who appear temporarily in another state — if that state has adopted the rule! APR 8(f) addresses the law practice of persons holding a license issued by another country who live and work in the State of Washington. Another kind of regulation of our profession is emerging, however — national and international regulation of the practice of law stemming from federal law. The General Agreement on Trade in Services (GATS) calls for the negotiation of liberalized access to service markets that are covered by GATS, including legal services.1 The Office of the United States Trade Representative (USTR) is engaged in negotiations to establish standards for access to legal services markets here and in other countries. As stated in an August 2006 report of the ABA Standing Committee on Professional Discipline: The Office of the USTR … has negotiated and will continue to negotiate principles and commitments that have possible serious ramifications as to how the practice of law in this country will be conducted and regulated in the future. These negotiation positions are intended, in part, to enhance the ability of U.S. lawyers and firms to secure access to existing and emerging foreign legal services markets. They will also, however, apply to access to the U.S. legal service market by inbound lawyers from other countries, and, as a consequence, to interstate multijurisdictional practice by U.S. lawyers. While it may be many months, and perhaps years, before international standards for access to legal services markets are submitted to Congress for approval,2 the legal profession in the United States is, by virtue of WTO, subject to a new overlay of federal regulation. The scope of that regulation, while presently unknown, is potentially very broad. Under GATS, the international agreements will encompass access to markets of legal services, but may also prescribe “disciplines” regarding domestic regulation of the profession. Those “disciplines” could include, for example, legal education requirements, bar admission and licensing requirements and procedures, and rules of professional conduct, among other measures that have historically been the prerogative of the states. At issue for our state is the continued authority of the Supreme Court, the head of our judicial branch, to determine what standards will govern the practice of law in this state. Under GATS, the federal government has the power to bargain away that prerogative, and vest that authority in an international body established to resolve disputes over access to the practice of law in the United States, and in every individual state. Moreover, the federal government has the power to sue individual states to force compliance. The ABA has been consulted by the USTR, as have individual states. Nonetheless, it is not clear exactly what issues are in active discussion, or what direction the negotiations may take. We do not know when the issues of access to and regulation of legal services markets will be agreed, or, indeed, what the negotiation process will look like. Nor do we know how constitutional issues concerning the reserved powers of the states might be raised. Federal law is influencing the regulation of the practice of law in yet another way, through rules and policies that are aimed at the most basic aspect of the attorney-client relationship — the attorney-client privilege. For example, regulations issued under the Sarbanes-Oxley Act3 purport to allow a lawyer to disclose privileged information under certain circumstances. More broadly, the United States Department of Justice has adopted a policy of encouraging (opponents have said “coercing”) companies to waive the privilege as a condition of cooperation during investigations. The Federal Sentencing Guidelines also authorize and encourage the U.S. government to seek waivers as a condition of cooperation. Apart from the obvious question of whether federal regulations and guidelines should be brought to bear in a way that forces a client to waive the attorney-client privilege in order to avoid indictment, a more subtle question is presented — that is, whether the core of the relationship between attorney and client will be regulated not by the individual states, but rather by the federal government. GATS raises the ante further, presenting the possibility that the nature of the privilege, at least to the extent that it is expressed in our Rules of Professional Conduct, will be subject to the requirements of an international trade agreement and the jurisdiction of an international dispute resolution body established under WTO. The platform for discussion of our Rules of Professional Conduct, and of the protection of confidential information, is no longer local. It is a national, and even an international, venue. The American Bar Association is actively engaged with the Department of Justice and with USTR on all of these issues. But the individual states must also speak out on the importance of maintaining local control over the standards that will apply to the practice of law in their courts and discipline systems. Transparency in the requirements for access to legal services markets is an important element of international trade. Local control of standards of legal practice, however, is equally important to assuring the quality of those services. Our system of justice, however flawed, is often called “the envy of the world.” I believe that it is, and for good reason. The standards of practice that are to be applied within that system should not be subject to barter for economic gain. Ellen Conedera Dial can be reached at 206-359-8025 or ecdial@gmail.com. If you would like to write a letter to the editor on this topic, please e-mail it to letterstotheeditor@wsba.org or mail it to WSBA Bar News, Attn: Letters to the Editor, 2101 Fourth Ave., Ste, 400, Seattle, WA 98121-2330. Oral histories are an essential part of the fabric of our cultures, but sometimes they perpetuate inaccuracies! Thank you to Paul Cressman Sr., for letting me know that I am not, in fact, only the second lawyer to serve as WSBA president who also had not been a governor. Payne Karr, who served as president in 1968-1969, also bore that distinction. I apologize for the error and hope that if there are others, I will hear about them as well! I hope to convince all WSBA members that there are many ways to serve the profession, and many paths may lead to service in this position. — ECD NOTES
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