The Legal Services Board can take a leaf out of the American Bar Association’s book when planning its next radical review of legal services.The ABA does not seize on an ideology (‘markets are wonderful’, say), and then experiment with members’ lives without any research. They go about it the other way. I have written before about their 2020 Ethics Commission, which is looking at how globalisation and IT will affect future practice. They have a three-year programme to reach their recommendations (are you listening, LSB?):
‘The commission expects its work to take three years.
- Year one will consist of research, outreach, and analysis of information regarding critical issues identified in each of the three major subject areas;
- Year two will focus on development of proposed policies, principles and, if necessary, model rules for wide circulation and comment; and
- Year three will involve continued vetting of proposals and presentation to the ABA House of Delegates.’ They have been punctilious in seeking views in public hearings and other invitations. They have a listserv that anyone can join, where you can follow progress on intriguing issues, including the latest on our own UK developments. They have just finished consulting on outsourcing (but if you have views, they are still welcome). And they are currently researching
I have been part of the debate for a number of years on opening the US market to foreign lawyers, and this is a historic opportunity to push for greater liberalisation. The US’s structure for the regulation of its legal profession is based on the states, and in particular on the Supreme Court of each state. The American Bar Association can pass model rules on regulation, but has no power to regulate: the state, usually through its Supreme Court, regulates the legal profession. As a result, there are as many regulatory structures – including of foreign lawyers – as there are states, some very liberal, some very conservative. Trying to change the rules of each one is costly and time-consuming, as the Law Council of Australia, which has tried that tack, has found.
The Americans usually say ‘Tell us which state you want to practise in, and we’ll see whether we can take steps towards liberalisation there’, knowing full well that the major economic powerhouses, like New York and California, are pretty open for foreign lawyers. To which we always reply: ‘No, we want to be able to practise wherever we want, from North Dakota to New Mexico – they should all be open!’ Of course, if we push the argument too hard, they say in reply that they want to be able to practise in Europe from Estonia to Malta. Round and round the argument goes.
The 2020 commission is also investigating the impact of alternative business structures on US practice. They are concerned about the impact on US firms not only of what is going on in England and Wales, but also the developments in Australia, for instance the floating of law firms on the Stock Exchange.
There will be a public hearing run by the commission during the forthcoming American Bar annual meeting in August, where interested individuals or organisations can put their views. The CCBE is invited to meet the commission earlier in the day, where we will explain some of the projects for proving the cross-border electronic identity of lawyers in Europe. They are interested to hear about the Akzo Nobel case on in-house counsel and legal professional privilege, and our views on the liberalisation of rules for practice by foreign lawyers.
Research, public hearings, listservs: are you listening, LSB?
Jonathan Goldsmith is the secretary general of the Council of Bars and Law Societies of Europe (CCBE), which represents over 700,000 European lawyers through its member bars and law societies