Putting the Legal Profession’s Monopoly on the Practice of Law in a Global Context

When considering the proper scope of the U.S. legal profession’s monopoly, regulators and commentators may find it useful to compare the scope of the U.S. monopoly with the legal profession monopolies found in other countries. This Article surveys what we know—and do not know—about the scope of the monopoly in countries other than the United States. The Article finds that the state of knowledge on this topic is relatively undeveloped, that the scope of the U.S. legal profession’s monopoly appears to be larger than the scope of the monopoly found in some other countries, but that the “conventional wisdom” may be incorrect with respect to the scope of the legal profession’s monopoly outside of the United States. It discusses some relatively new developments that may contribute to our knowledge in this area, including reports from the World Trade Organization, the European Union, and the International Bar Association. It also suggests that relatively new organizations, such as the International Conference of Legal Regulators and the International Association of Legal Ethics, might contribute to our knowledge about legal regulation around the world

From GATS to APEC: The Impact of Trade Agreements on Legal Services

This article provides a comprehensive overview of the treatment of legal services in the United States‘ international trade agreements. Although many individuals are now familiar with the General Agreement on Trade in Services (GATS), far fewer realize that legal services are included in at least fifteen international trade agreements to which the United States is a party. This article begins by identifying those trade agreements and other developments including the 2009 Legal Services Initiative of the Asia Pacific Economic Cooperation (APEC). The article continues by explaining the structure of the GATS and comparing its provisions to the provisions found in the NAFTA and in other international trade agreements. The article includes several tables that compare the structure and content of the fifteen trade agreements applicable to legal services. The fourth section of the article reviews legal services-related implementation efforts, including GATS Track #1 developments related to the Doha Round negotiations, GATS Track #2 developments regarding the development of ―any necessary disciplines,‖ implementation efforts for other trade agreements, and developments that are indirectly related to these trade agreements. The final section of the article addresses the impact of trade agreements on U.S. lawyer regulation. It concludes that these trade agreements, which reflect larger developments in our society, have affected the vocabulary, landscape and stakeholders involved in U.S. lawyer regulation

But What Will the WTO Disciplines Apply To - Distinguishing among Market Access, National Treatment and Article VI:4 Measures When Applying the GATS to Legal Services

One of the issues currently facing World Trade Organization (WTO) Member States is whether to extend to the legal profession and other service providers the WTO Disciplines for Domestic Regulation in the Accountancy Sector [Accountancy Disciplines]. The Accountancy Disciplines document applies to regulatory measures that would be considered domestic regulations under Article VI:4 of the GATS, rather than market access or national treatment measures under Articles XVI or XVII of the GATS. This paper argues that in order to meaningfully discuss whether to extend the Accountancy Disciplines to the legal profession, U.S. policy-makers and stakeholders need to understand the type of lawyer regulations to which the Disciplines might apply. The paper sets forth the principles that will be used to determine whether a particular legal services measure would constitute a domestic regulation measure that would be subject to any future Disciplines. The second part of this paper is an Appendix that provides specific examples of legal services measures. This Legal Services Examples List is intended to be a legal services-specific counterpart to the Examples list assembled by the WTO Secretariat. (The WTO Secretariat\u27s Examples paper does not address legal services specifically and is no longer publicly available.) The examples contained in this Appendix will provide a concrete context in which policymakers and stakeholders can debate the application of the principles discussed in the first part of the paper

The Bologna Process and Its Implications for U.S. Legal Education

Virtually all European countries are in the midst of a massive multi-year project intended to dramatically restructure higher education in Europe. This project, which is known as the Bologna Process or Sorbonne-Bologna, began less than ten years ago when four European Union (EU) countries signed a relatively vague agreement. The Bologna Process has now grown to forty-six countries, including all of the EU Member States and nineteen non-EU countries. The Bologna Process participants have agreed to form the European Higher Education Area or EHEA by 2010; among other goals, the EHEA is intended to help Europe better compete in the higher education field. Although a number of U.S. higher education organizations are familiar with the Bologna Process and its implications for the U.S., the U.S. legal education community does not appear to have paid particularly close attention to these developments. This article provides a brief history and overview of the Bologna Process, including its ten action lines and information about its effect on European legal education. The article then explains the implications of the Bologna Process for U.S. law schools, legal educators and administrators, and the AALS. This article recommends several concrete steps that the U.S. legal education community should take in response to these developments

Trends in Global and Canadian Lawyer Education

Globalization and technology have changed the practice of law in dramatic ways. This is true not only in the U.S. and Canada, but around the world. Global regulatory trends have begun to emerge as lawyer regulators have had to respond to new developments. In 2012, Australian regulators Steve Mark and Tahlia Gordon and the author, who is a U.S. academic, documented some of these global trends in lawyer regulation. See Laurel S. Terry, Steve Mark, & Tahlia Gordon, Trends and Challenges in Lawyer Regulation: The Impact of Globalization and Technology, 80 Fordham L. Rev. 2661 (2012), https://works.bepress.com/laurel_terry/95/. Their article concluded that regulators face issues in common regarding “who” is regulated, “what” is regulated, “when” and “where” regulation occurs, “how” it occurs, and “why” it occurs. The current article examines Canadian lawyer regulation in light of the global trends Terry, Mark, and Gordon previously identified. The current article asks whether there is evidence in Canadian lawyer regulation of these same who-what-when-where-why-and-how issues. The article concludes that these trends are indeed present in Canada and explains why it is important for Canadian lawyers, regulators, clients, and other stakeholders to be aware of these global trends. The article also addresses the issue of whether these trends matter in a jurisdiction such as Saskatchewan that is not a global financial center on the order of New York, London or Toronto. The answer the article provides is “yes” – these trends are relevant to Saskatchewan and to jurisdictions throughout the world that care about lawyer regulation

U.S. Legal Profession Efforts to Combat Money Laundering and Terrorist Financing

This article was prepared for the Symposium on Combating Money Laundering and Terrorist Financing, which was the first academic symposium of its kind, and included speakers from the U.S. Department of the Treasury, the FDIC, and the IRS. It focuses on the legal profession and explains how the US has implemented the FATF Recommendations that address the role that gatekeepers, including lawyers, can serve to combat money laundering and terrorist financing. After setting forth introductory material about the intergovernmental organization called the Financial Action task Force or FATF, the FATF Recommendations, and the degree to which the FATF Recommendations have influenced lawyer regulation in other countries, this article examines the manner in which the U.S. government and the legal profession have implemented the FATF Recommendations. The article explains that U.S. lawyers are subject to both criminal and disciplinary sanctions for knowingly engaging in money laundering or terrorist financing or assisting clients involved in such activities. The US actively enforces these provisions and US lawyers have been criminally prosecuted, convicted, and disbarred for assisting clients in money laundering. Because of the wide array of existing laws that prohibit lawyers from assisting clients who are engaged in money laundering or terrorist financing activities, the U.S. legal profession has focused on what might be called application issues. Numerous efforts have been undertaken to educate lawyers so that they recognize the types of situations and fact patterns in which these types of criminals seek to involve lawyers in their activities. The goal of this type of education approach is to make lawyers as sensitive to money laundering and terrorist financing issues at the intake stage as these lawyers are to issues such as conflicts of interest. Moreover, as is true with a conflict of interest analysis, lawyers must continually reassess the situation as new facts emerge. Both the ethics rules and criminal law require lawyers to decline (or terminate) representation if it would result in lawyers assisting client in their criminal activities. The goal of this type of education approach is to have lawyers internalize these issues, rather than simply engaging in a formalistic check-off-the-box approach to these issues. This article documents the education steps that already have been undertaken and outlines some additional steps that could be taken in the future. It concludes that while there is still education work to be done, progress has been made. This article should prove useful when the U.S. undergoes its 4th Mutual Evaluation as a member of the intergovernmental Financial Action Task Force (FATF). During its previous Mutual Evaluation, the U.S. received several “non-compliant” ratings with respect to the U.S. legal profession. Since that time, the U.S. legal profession has undertaken a number of additional steps in the effort to educate lawyers so that lawyers do not unwittingly assist clients in these criminal activities. (U.S. legal profession representatives have expressed the view that if a lawyer is intentionally engaged in, or assisting, criminal money laundering or terrorist financing, then it is unlikely that additional rules or sanctions would discourage the lawyer, given the existing criminal and disciplinary sanctions.) This article addresses many of the issues that have been raised about lawyers and money laundering as a result of the 2016 Global Witness report, New York Times story, and 60 Minutes show on real estate purchases in New York