Multi-Jurisdictional Practice: lack of EU protocol a stumbling block for US regulators

European and US bar leaders must urgently agree a system of international disciplinary rules if multi-jurisdictional practice between the two continents is ever to become a viable reality, overseas delegates were warned at the American Bar Association's (ABA) annual conference last week.


William Smith, president of the US's National Organisation of Bar Counsel and General Counsel, told a summit of international bar leaders in Chicago that the lack of a disciplinary protocol was a major stumbling block for many US states in relation to relaxing their rules on allowing foreign lawyers to practise.


'We have to come up with a system of international reciprocal disciplinary protocols,' said Mr Smith. 'We must be able to prosecute foreign lawyers who violate local practice rules and we must be satisfied and confident that those prosecutions will be honoured in the offending lawyer's home country. We don't want to wait until we have a crisis &150; the time to act is now.'


That view was broadly supported by Peter Ehrenhaft, the ABA liaison to the US government's industry trade advisory committee on services and finance. There is a growing sense in the US of a reawakening of federalism, he said.


'In relation to the legal profession, that has meant a view that the regulation of lawyers should be entirely reserved by the states and the federal government has no business getting involved in international negotiations,' explained Mr Ehrenhaft. 'And those involved in the regulation of lawyers at state level &150; whether the judiciary or lawyers themselves &150; often have had little or no involvement in international experience.'


Mr Ehrenhaft maintained that the federalist US attitude has created a significant deterrent to the adoption and implementation of the ABA foreign legal consultant model rules &150; although eight more states have adopted the model rule in the last year, bringing the total to 26.


That stance was met with surprise from European delegates. Hans Jürgen Hellwig &150; former president of the Council of the Bars and Law Societies of Europe (CCBE) &150; said that while the Europeans supported and expected judicial independence in relation to court proceedings, he suggested it should be possible for the executive to bind the judiciary in relation to the legal profession's administrative matters.


Likewise, CCBE secretary-general Jonathan Goldsmith pointed out that cross-border practice in the EU 'has led to very few discipline problems'. Mr Goldsmith explained: 'Originally, we thought there would be more problems as firms established themselves in other member states, but there have effectively been no problems at all.'