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Terry, L S --- "A 'How to' Guide for Incorporating Global and Comparative Perspectives into the Required Professional Responsibility Course" [2008] LegEdDig 6; (2008) 16(1) Legal Education Digest 18


A ‘how to’ guide for incorporating global and comparative perspectives into the required professional responsibility course

L S Terry

51 St. Lou U LJ 4, 2007, pp 1135–1159

The first reason why global and comparative perspectives are relevant in a professional responsibility course is because globalisation is a phenomenon that affects clients. This is true regardless of whether one is speaking about business clients or individual clients.

Globalisation has also affected U.S. law firms and the lawyers who work in these firms. An increasingly large number of U.S. law firms now operate outside of the U.S., and an increasingly large number of foreign firms operate inside the U.S. Although the law firms that rank eleven through twenty in size don’t have offices in ten or more countries, all of them have foreign branch offices. Another striking statistic is the fact that ‘six of the world’s ten highest-grossing law firms had more than 50 per cent of their lawyers working in countries outside of the firm’s home country.’ Moreover, it isn’t just the top ten or twenty U.S. law firms that have foreign offices. Carole Silver has documented the dramatic growth in the foreign offices of sixty U.S.-based law firms.

In addition to affecting lawyers and clients, globalisation has affected the manner in which legal services are regulated. It is not uncommon for regulators inside and outside the U.S. to employ benchmarking and employ a comparative methodology in which they ask how a particular issue is treated in other countries. One reason for this comparative methodology is because it is increasingly common for legal ethics regulators and experts to meet each other in person, at least periodically.

In addition to these increased personal contacts, the Internet, email, and the widespread use of English have made this benchmarking and comparative methodology easier to employ now than it used to be. Regulators can easily see each other’s policies and can easily communicate with each other.

Legal services regulators are also exposed to the views of legal ethics experts, who are increasingly knowledgeable about global and comparative issues.

Because legal services regulators increasingly take account of global initiatives and comparative approaches to a particular issue, it is important for the students in the required professional responsibility course to realise that developments outside the U.S. may be relevant to U.S. legal ethics issues. These students need to understand that it is no longer uncommon for U.S. legal services regulators and experts to adopt a methodology in which they ask how similar issues are handled in other countries or ask what global initiatives exist with respect to the issue in question.

There is an additional reason why it is important for U.S. law students to be aware of global professional responsibility issues. Not only has the approach of U.S. regulators changed, but the content and source of lawyer regulation is changing.

In my view, students do not need to master the details of these developments, but they do need to know that developments such as these exist. Students need to understand that when they face an issue, it may not be enough to simply look for the state rule or state law on point — they may also have to look for national or global policies on point. Students also need to understand that domestic legal ethics policies — whether in the U.S. or elsewhere — may have consequences outside of that country.

Thus, when they conduct research in the future, they will be on the lookout for global initiatives such as the FATF Gatekeeper Initiative, the GATS (General Agreement on Trade in Services), the

U.S. free trade agreements, and other global initiatives.

U.S. professional responsibility students also need to know that there may be global implications for issues that they think of as ‘domestic’ U.S. legal ethics issues. One example of a seemingly domestic

U.S. issue that had international implications is the Sarbanes Oxley Act, which was passed in the wake of the Enron and other scandals.

As noted earlier, a third reason why U.S. professional responsibility students should be introduced to global and comparative perspectives is because policies from other countries have the potential to directly or indirectly affect U.S. regulators and lawyers.

The ABA Multidisciplinary Practice (MDP) Commission and resulting MDP debates, for example, were driven largely by developments that took place outside the U.S. when the major accounting firms set up law firm branches or departments.

Additional developments that have the potential to indirectly affect U.S. regulation of lawyers are the antitrust initiatives occurring around the world.

I do not assert that professional responsibility students necessarily need to know the details about these MDP or antitrust developments. But it is important for our future lawyers to realise that because we live in an increasingly smaller world, developments outside the U.S. can influence lawyer regulation within the U.S., even when it does so indirectly, rather than directly. For this reason, in addition to the reasons listed earlier, it is important to introduce global and comparative perspectives into the required professional responsibility course.

This article is intended for professors who teach the required professional responsibility course and who may already feel that there is not enough time to do justice to the material in the course. Despite the constraints that face such professors, I hope that this article will convince the reader of two things. First, I hope that it will convince you that it is worthwhile to incorporate global and comparative perspectives into your professional responsibility course. Second, I hope this article will convince you that it is possible to incorporate these perspectives without taking up very much class time and without requiring very much additional course preparation time.

This article explains how, with a very small course preparation investment and with very little class time — mostly by the use of one-minute ‘aside’ types of comments — one can frequently introduce global perspectives into the course.

In a somewhat nontraditional format, this article is organised according to how much time you are prepared to devote to class preparation of this topic.

If you are interested in introducing global and comparative perspectives into your course, but you only have time to read one document, then I recommend that you begin with the ethics code that was designed to apply to EU lawyers who are engaged in cross-border transactions with one another. This ethics code, which is known as the CCBE Code of Conduct, was prepared by the Council of Bars and Law Societies of Europe (CCBE).

The CCBE is the officially recognised representative organisation for the legal profession in the EU and represents more than 700,000 lawyers.

The CCBE Code of Conduct was first adopted in 1988 and most recently revised in May 2006. In contrast to the ABA, the CCBE has not made its prior drafts and comments on those drafts publicly available. Despite the lack of legislative history, there are several reasons why the CCBE Code of Conduct provides a useful resource for introducing comparative perspectives into a professional responsibility course. The CCBE Code is in English, it has rules that appear quite straightforward, and it is much shorter (and thus easier to read) than the ABA Model Rules. The CCBE Code also is useful because it represents efforts to reconcile ethics provisions from civil law and common law countries and from countries that are restrictive and countries that are liberal. Thus, it is illuminating to simply observe where the CCBE has been able to adopt a single, harmonised rule and where it has had to adopt a choice of law approach in which it directs the lawyer to use the law of one of the EU Member States.

If you have time to read additional documents, then I recommend you read five very short documents that I will refer to collectively as ‘the international resolutions.’ Four of these five documents were prepared by international organisations whose members come from around the world. One can use these documents as the basis for a one-minute ‘aside’ comment that introduces global or comparative perspectives. On the other hand, some of the content in these documents could be the basis for an extended class discussion.

The first document that I recommend one consult after the CCBE Code of Conduct is the U.N. Basic Principles on the Role of Lawyers (U.N. Basic Principles). They were adopted as part of the U.N.’s ongoing efforts to implement standards across the globe to ensure the administration of criminal justice. The scope of this document is wideranging, covering the topics of access to lawyers and legal services, special safeguards in criminal justice matters, qualifications and training, duties and responsibilities, government guarantees, freedom of expression and association, professional associations of lawyers, and disciplinary proceedings.

The second document one should read is the International Bar Association (IBA) Resolution on Deregulating the Legal Profession; this resolution is often referred to by IBA Members as the ‘Core Values Resolution.’

The IBA, together with the Union Internationale des Avocats (UIA), is one of the two general- purpose international bar associations. The IBA tends to be more English-language, common-law oriented than the UIA, which is more French-language, civil-law oriented.

The IBA’s ‘Core Values Resolution’ was drafted in response to the GATS negotiations described earlier. This IBA resolution identifies the following ‘core values’ of the legal profession that WTO governments should strive to protect during the GATS negotiations: (1) its role in facilitating the administration of and guaranteeing access to justice and upholding the rule of law; (2) its duty to keep client matters confidential; (3) its duty to avoid conflicts of interest; (4) the upholding of general and specific ethical and professional standards; (5) its duty, in the public interest, of securing its independence, professionally, politically, and economically, from any influence affecting its service; (6) its duty to the Courts.

The third document in this international resolutions group is the UIA’s Turin Principles. The UIA Turin Principles were adopted in 2002 and refer to the U.N. Basic Principles cited above. The UIA Turin Principles are much more detailed than the IBA’s Core Values Resolution and provide much fodder for discussion.

The fourth document in the international resolutions group is the Statement of Core Principles of the Legal Profession.

The three core principles in this document are: an independent judiciary, an independent legal profession, and access to justice, which shall not yield to any emergency of the moment.

The fifth document in the international resolutions group is the CCBE Charter of Core Principles of the European Legal Profession, which the CCBE adopted at its plenary meeting in November 2006. Although this document was drafted by the CCBE, it may ultimately have a broader reach than that. This is because the Council of Europe has expressed interest in this document. The Council of Europe had been considering the development of a common code of ethics for lawyers in order to respond to requests it received from Eastern European Bars for European standards on lawyers’ ethics. After hearing about the CCBE project, however, the Council of Europe decided to defer this project while it follows the progress made by the CCBE.

If you have the time and interest to go beyond the documents cited in the prior subsection, then the first place I recommend consulting is the ‘Committees’ page of the CCBE website. These documents provide a wealth of comparative material because the CCBE must set forth and then reconcile the views of its thirty-one members and six observers. The CCBE documents often set forth in fairly concise form, the differences in views and perspectives among these countries.

After you consult the CCBE committee documents, I recommend that you consult the European Commission Report on Competition in Professional Services and the follow-up report and supporting materials. The European Commission has raised questions about whether the following five areas of European lawyer regulation violate antitrust principles: 1) fees, 2) advertising, 3) qualification (bar admission) requirements, 4) lawyer monopoly rules (also known as ‘reserved areas’), and 5) alternative business structures, including MDPs and incorporated legal practices. These reports are relatively short (much shorter than the Clementi Report) but include useful survey information on practices within Europe. Thus, by reading the information, one can learn a tremendous amount about the treatment of these five issues in the EU Member States.

After these two groups of documents, what you read depends on your particular interests; there are a number of options.

For those interested in monitoring global developments, there are some easy ways to do so. Both the CCBE and the Law Society of England and Wales prepare quarterly free newsletters; they are posted on their websites, but one can also sign up for an email subscription. Both of these newsletters include a table of contents so that in less than five minutes, one can determine whether there are any new developments of interest.

It is important for students in the required professional responsibility course to be exposed to global and comparative perspectives.

In an effort to help turn good intentions into action, this article has identified specific documents that one can read and use in order to introduce global and comparative perspectives. As this article explains, one can introduce global and comparative perspectives even if you only read a single document — the CCBE Code of Conduct. If you are willing to read an additional five documents (all of which are short), one can expand the global and comparative perspectives to include international resolutions that have been debated by lawyers from around the world. Finally, this article has identified a number of sources one can consult to learn about additional global developments.

One can spend as much — or as little — class time on these global initiatives as one wants. In my view, however, it is important to introduce students to these initiatives and differing perspectives, even if one only does so through an occasional one-minute ‘aside’ comment.

After all, it is important for students to learn that ‘we are not alone.’


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