A long-awaited draft cross-border discipline protocol for European and US lawyers is likely to be brought forward this autumn after leading officials from both sides of the Atlantic agreed basic principles at the Honolulu meeting.
Bill Smith, the ABA's chief negotiator on the issue and former chairman of the National Organisation of Bar Counsel, told the EU-US bar leaders summit that a draft protocol should be published in October. It would set out terms for how lawyers from Europe and the US would be disciplined for breaches of professional rules in either side's jurisdictions.
It would also deal with the thorny issue of whether and how a practitioner, once found to be in breach of a practice rule in one jurisdiction, should then be disciplined by his home bar.
Mr Smith said: 'Both sides have a data bank of lawyers who have been disciplined. It is not an insurmountable problem to exchange that data. Linking of the two data banks is the aim.'
He said the ABA envisages drafting a protocol that would be based on its existing rule 22, which is applied to intra-state disciplinary issues in the US. This requires a disciplinary authority to notify decisions to its counterparts in other jurisdictions where the lawyer practises, although they are not required to follow suit. However, the lawyer is asked to explain why this should not happen.
For its part, the Council of Bars and Law Societies of the EU (CCBE), has said it would not object to rule 22 forming the basis of a protocol.
The biggest stumbling block for both sides is that neither is actually a regulator. The CCBE is in a slightly stronger position, as all the regulatory bodies of its member professions are likewise members of the council. However, the ABA is purely a representative body and will only be able to encourage the state courts to accept the protocol.
Jonathan Ames
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