Category: Global Developments

Early Career Scholarship for Dec. 2018 Melbourne Int’l Legal Ethics Conference

Laurel TerryLeave a comment

Thanks to the generosity of Prof. Deborah Rhode from Stanford, the International Association of Legal Ethics (IAOLE) has funds that likely will be used to fund an early career scholar’s attendance at the ILEC 2018 in Melbourne in December 2018.  For additional information about the Deborah Rhode prize for scholarship, see https://law.unimelb.edu.au/ilec2018#iaole-deborah-rhode-prize.

For information about ILEC 2018 and information about past ILEC conferences, see:

https://law.unimelb.edu.au/ilec2018 and

http://www.iaole.org/conferences/

(Hat tip: IAOLE President Prof. Alice Woolley, U. of Calgary)

 

 

Proposed Changes to DC Bar Admission Rules

Laurel TerryLeave a comment

The DC Court of Appeals is seeking comments on whether it should “amend D.C. App. R. 46 relating to admission of graduates of non-accredited law schools.”   The proposed changes affect the rule that allows foreign LL.M. students to sit for the DC bar exam, as well as graduates of U.S. non-ABA accredited schools who have been in practice for less than 5 years.  Responses should be sent to the Clerk of the DC Court of Appeals by July 31, 2018.

In February 2018, the DC Board of Governors voted in favor of the proposed amendments that would, inter alia, change the bar eligibility requirements for foreign LL.M. students.  The proposed changes would reduce from 26 to 24 the number of U.S. legal education credits that provide a pathway for bar exam eligibility, change the required courses, and allow the same number of distance education courses as are permitted by ABA accreditation rules. The proposed new language, which is used in multiple locations in Rule 46, states:

Of such 24 credit hours, a total of six credit hours shalJ be earned in courses of study in the following subiects: two credit hours of instruction in professional responsibility (based on the ABA Model Rules of Professional Conduct or rules of professional conduct of a U.S. jurisdiction}; two credit hours of instruction in U.S. legal institutions (including the history, goals, structure, values, rules and responsibilities of the U.S. legal system); and two credit hours of instruction in common law legal reasoning, research, and writing. A minimum of six credit hours shall be earned in courses of study, each of which is substantially concentrated on a single subject tested on the Uniform Bar Examination.  The law school issuing the credit hours shall certify in writing that its courses comply with the specific course requirements in this rule. Any amount of such 24 credit hours may be completed through distance education from the ABA-accredited law school, provided the law school issuing the credit hours certifies in writing that its distance education methods comply with ABA distance education standards; 

The DC Bar’s February 2018 proposals were based on the Jan. 2018 Final Report from the DC Bar’s Global Legal Practice Task Force (“Task Force“).  The DC Bar’s transmittal letter begins on p. 3 of the Court’s Notice & Comment pdf; the Jan. 2018 Final Report begins on p. 11 of the pdf, and a redline version of the proposed changes begins on p. 25 of that Final Report, which starts at p. 41 of the Court’s Notice & Comment pdf.  As the DC Bar’s transmittal letter describes, the January Task Force 2018 Final Report and the February 2018 Board vote reflect comments the Task Force had received on its July 2017 consultation draft.

The topics addressed in this Notice and Comment are covered on pp. 3-4 of the Casebook (especially the “Global Perspective” box) and in Chapter 9(1). For information about why U.S.-based clients might want access to foreign-trained lawyers, see Diane F. Bosse, Testing Foreign-Trained Applicants in a New York State of Mind, 83(4) The Bar Examiner 31–37 (Dec. 2014); Laurel S. Terry, Admitting Foreign-Trained Lawyers in States Other than New York: Why it Matters, 83(4) Bar Examiner 38 (Dec. 2014).

Powerful YouTube Video Relevant to Rule 8.4(g)

Contemporary Professional ResponsibilityLeave a comment

Professor Amy Salyzyn from the U. of Ottawa has circulated to the Canadian legal ethics community a link to this video entitled “But I was Wearing a Suit…” She also provided this description:

A compelling video that listserv members may be interested in watching. For those who teach legal ethics, also content to consider adding to our syllabi.  As described on YouTube:

 “A grassroots project of a group of Indigenous Lawyers, with the support of CLEBC and the Law Society of BC. To encourage discussion about stereotyping and bias within the legal profession, Indigenous lawyers were asked to submit their stories about the racism and stereotyping they have faced in the practice of law”

Amy is correct that this is a compelling and powerful video.  It is about 25 minutes long, but you can watch as much or as little of it as you want.  It contains numerous snippets of indigenous Canadian lawyers reciting into the camera their experiences, including numerous examples of times in which they were assumed not to be lawyers or treated rudely by fellow lawyers or court personnel.  This could be very useful to assign or show in class when teaching Rule 8.4(g).

But I was wearing a suit

Canadian Regulator Adopts a Cap on Referral Fees

Laurel TerryLeave a comment

On April 27, 2017, the Law Society of Upper Canada, which is the body that regulates lawyers in Canada’s largest province of Ontario, approved a set of recommendations that cap lawyer referral fees.   The action limits referral fees to 15% of the first $50,000 in legal fees and 5% thereafter, with an absolute cap of $25,000.  It adopted a standardized form for referral agreements that would be signed by everyone involved in a referral, including the referring lawyer, the lawyer getting the file and the client.

This action was based on a report issued by the Professional Regulation Committee’s Advertising & Referral Fee Arrangements Issues Working Group.   That Report is described in this new story and is available here (at Tab 4-2).

The U.S. counterpart to this issue is ABA Model Rule 1.5(e). Under Rule 1.5(e), a fee division among lawyers from different firms is proper if “the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing.”  That rule also requires that the feed division be in proportion to the work done or all lawyers assume “joint responsibility for the representation.”  Some states, such as Pennsylvania, have omitted the proportionality/joint responsibility clause, and other have omitted the “confirmed in a writing” requirement.

5 Year Prison Term for a Lawyer Using his IOLTA Account to Launder Money

Laurel TerryLeave a comment

The ABA Journal and Law.com have reported the story of a San Diego lawyer who was sentenced to five years in prison for using his IOLTA account to facilitate money-laundering activities.  In his plea agreement, attorney Medina admitted  that he used his IOLTA account for the receipt, transport, and transmission of cash to international destinations and that he  “knew or had reason to know that the cash transactions described [therein] were proceeds of unlawful activity, or were intended to promote unlawful activity.”

This new story can be used in Chapter 2 when teaching Rule 1.2(d), which states that a lawyer “shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent….”   Although PR profs cannot possibly teach the substantive law of all crimes, I think it is important to make sure that our students are familiar with 18 U.S.C. § 1956.  Among other things, § 1956 makes it a felony “to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity.”   This means that activity that is perfectly legal in one context (such as forming one or more corporations) may be illegal if the purpose of that otherwise legal conduct is to hide the location or source of the proceeds of crime.  (The 60 Minutes/Global Witness videos and the Panama Papers leak can provide useful hypos for discussion).

The San Diego case shows students that lawyers who assist money laundering activity face criminal law sanctions, as well as disciplinary sanctions under Rule 1.2(d).   I found it noteworthy that the plea agreement with Attorney Medina recited that he knew or had reason to know that the money in his IOLTA account were proceeds of unlawful activity, or were intended to promote unlawful activity.

For additional information about the role of lawyers in preventing money-laundering, see this ABA Task Force webpage and the guidance provided by the ABA and jointly by the IBA, CCBE, and ABA about how to identify money-laundering red flags.  (I give my students a 2-page summary of the ABA’s red flags guidance.)

My other work about lawyers and money-laundering includes these slides about the potential impact on US lawyer regulation of FATF’s 4th Mutual Evaluation of the US; slides that focus on US efforts to educate lawyers about money-laundering; and slides and a 2 page handout that discuss how US lawyer regulation could be affected if US lawyers don’t recognize money laundering situations. My most recent article about this topic is available here.

New DC Data & Recommendations About Global Practice

Laurel TerryLeave a comment

In May 2016, the DC Bar issued the Interim Report of its Global Legal Practice Task Force.  In June 2016, the Board of Governors of the DC Bar approved the report’s recommendations.  As the DC press release noted, “D.C. Bar members practice in 83 countries, and nearly 1,500 of the Bar’s 101,500 members live and work abroad. Fifty-four percent of the Bar’s domestic members were very or somewhat interested in expanding their international practices within the next five years …with 57 percent of that number indicating that they expect to expand their practices during that time.”

The DC Bar sent separate surveys to bar members located in the US, bar members located outside the US, and Special [Foreign] Legal Consultants.  To my knowledge, this is the first survey of its kind, in which bar members were asked demographic data about their practices and qualifications, as well as questions about the ways in which they currently interact with the DC Bar and the services they would like.   Anyone who is interested in the globalization of legal practice will find the Interim Report an interesting read.

The DC Bar press release announcing Board approval of the recommendations summarized the Task Force work as follows:

To best achieve its charge, the Task Force divided its study into three areas: examining how best to serve domestic Bar members with international practices and clients, and Bar members who live and work overseas (outbound); studying the rules by which lawyers from foreign countries can be admitted and licensed to practice in the District (inbound); and studying developments in alternative business models being employed by law firms domestically and in other countries. The interim report reflects the recommendations of the outbound subgroup and a recommendation to conduct ongoing study of alternative business structures and multi-disciplinary practice. The Task Force’s work continues on issues about the regulation, admission, and practice of foreign-educated lawyers in the District of Columbia.

 The Task Force’s proposals for outbound members fell into three broad categories: connections or networking, resources, and education and professional development.

Highlights of the proposals for short-term implementation recommend that the Bar should:

• Develop networking opportunities with substantive content for smaller groups of domestic Bar members with international legal practices.

• Improve the exchange of information about resources, education, and networking for all members engaged in the practice of cross-border and international law.

• Create varying “expertise” levels of educational programming in international law topics for all members and develop marketing for this programming.

• Develop educational programming about issues in international practice that all members often encounter: multi-country litigation; record keeping; e-discovery training and tools; conflicting legal ethics rules; attorney-client privilege abroad; and data security and privacy.

Highlights of the proposals for long-term implementation recommend that the Bar should:

• Facilitate informal gatherings of its members residing in specific regions of the world where these members commonly live and practice, such as Canada, China, France, and the United Kingdom.

• Facilitate networking between members who reside and practice outside the United States and local business groups.

• Partner with international groups and organizations based in Washington, D.C., for hosting networking events with domestic members with international practices.

• Develop and maintain a list of volunteer “resource attorneys” by international law subject matters or by conducting business in specific regions of the world.

Second Circuit Finds New York’s In-state Office Requirement Constitutional

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On April 22, 2016, the Second Circuit decided SCHOENEFELD v. SCHNEIDERMAN, et. al.  In a 2-1 decision, the Second Circuit reversed the district court and remanded the case with instructions to the court to award judgment to the defendants.  The Second Circuit majority upheld the constitutionality of New York’s rule that requires an instate office.  Relying on

McBurney v. Young, 133 S. Ct. 1709 (2013), the Court held, inter alia, that “in the absence of any proof that that statute’s in‐state office requirement was enacted for a protectionist purpose”, plaintiff could not prevail.

The suit was filed in 2008 by Ekaterina Schoenefeld, who was a New Jersey resident. She had cited the Privileges & Immunity Clause and argued that the policy, which blocked her from practicing in New York despite passing the bar there and meeting all other requirements, served no substantial state interest.  She had noted that New York residents need not have a physical office in New  York and may practice from their homes.   This argument was not successful.  The opinions are quite lengthy – 31 pages for the majority and 25 pages for the dissent. The ABA Journal has a story about the case here about and there is Wall Street Journal article here.

Although the Court held that it was constitutional for New York to have an in-state office requirement, the decision does not require such a rule.  At some point, New York might want to revisit this issue.   In addition to its domestic implications, this ruling has the potential to reduce the number of foreign-admitted lawyers who annually sit for New York’s bar exam. See Diane Bosse, Testing Foreign-Trained Applicants in a New York State of Mind.   New York’s in-state office rule could affect the attractiveness of the New York license as a global credential.

Chapter 4, Confidentiality, and a New EU Case on Lawyer Surveillance

Laurel TerryLeave a comment

If you are looking for a way to introduce cutting-edge issues into Chapter 4 on lawyer confidentiality, you can refer to a CCBE press release about an October 27, 2015 decision from the Dutch Court of Appeals regarding lawyer surveillance.  The CCBE is the acronym for the Council of Bars and Law Societies of Europe, which represents the bars and law societies in the EU. The press release included the following summary of the background of the case:

“In May of this year the CCBE successfully intervened before The Hague District Court in a challenge brought against the Dutch State by the law firm Prakken d’Oliveira and the Dutch Association of Criminal Defence Lawyers (NVSA). The Court was questioned on the legality of eavesdropping by domestic intelligence agencies on lawyers’ calls and communications. In its verdict delivered on July 1st, the court recognised that the ability to communicate confidentially with a lawyer is a fundamental right which is currently being breached under Dutch surveillance policy. The court therefore ordered the Dutch government to stop all interception of communications between clients and their lawyers under the current regime within six months. In response, the Dutch State fast-tracked an appeal against the judgement.  On 25 August, the CCBE challenged the grounds of the appeal.”

The CCBE press release reported that the Dutch Court of Appeal had upheld the trial court’s ruling, noting that:

“In its ruling, the Dutch Court of Appeal dismissed all the grounds of appeal alleged by the Dutch State. The Court indicates that according to case law of the European Court of Human Rights surveillance activities must be subject to review by an independent body with the power to prevent or terminate potential infringements of professional secrecy.”

The CCBE press release contains links to the court decisions (in Dutch) and news stories.  Additional information is found on this CCBE Surveillance Working Group webpage.  This CCBE webpage also has confidentiality-related information.

NOBC Posts Resources on Global Developments

Laurel TerryLeave a comment

The National Organization of Bar Counsel (NOBC) is an organization “of legal professionals whose members enforce ethics rules that regulate the professional conduct of lawyers who practice law in the United States, Canada and Australia.”  When she was president of the NOBC, Tracy Kepler created an International Committee, which decided to create 4 subcommittees to investigate and provide information to NOBC  members about four areas of inquiry: Alternative Business Structures; Entity Regulation; Alternative Licensure ; and State and International Reciprocity

The work product from these committees has now been posted on a new NOBC “Global Resources” webpage.  These new pages contain useful information.  For example, the FAQ document about Entity Regulation was prepared with input from current or former US, Australian, Canadian and UK regulators, along with academics.   (The Entity Regulation Committee plans to update its materials periodically.)  These materials can be particularly useful when teaching Chapter 2, Chapter 3 (fee splitting) and Chapter 9.

Regulator(s) for English barristers approve changes to the “cab rank rule” regarding the “duty to accept” cases

Laurel TerryLeave a comment

The Bar Standards Board (BSB) is the “frontline” regulator for barristers in England and Wales; the overarching regulator is the Legal Services Board (LSB).

Yesterday the LSB approved a proposal from the BSB to change the “cab rank rule” which says, in essence,  that barristers are required to accept clients who request their services.  (In other words, they are similar to “taxi cabs” and have to accept the person who “hailed” their services.)

The new rule allows barristers to refuse work from a professional client who, in the reasonable opinion of the barrister, presents an unacceptable credit risk.  (The previous rule only allowed barristers to decline work from solicitors on a specified list.)  For information on the history of this rule and the consultations, see here and here.

For those teaching Professional Responsibility, the English cab rank rule, even as amended, can be contrasted with the ABA Model Rules.  The only mandatory ABA Model Rule that contains a “duty to accept” cases is found in ABA Model Rule 6.2 regarding court appointments. (Rule 6.1 encourages but does not require the acceptance of a certain number of pro bono cases).

July 2015 International Conference of Legal Regulators’ materials online

Laurel TerryLeave a comment

The International Conference of Legal Regulators is a group of regulators that first met in London in September 2012.  The idea behind the ICLR is that those who regulate lawyers face similar issues and would benefit by global conversations on these topics.  (For example, regulators around the world face issues related to the impact of technology, globalization, & market disruption and issues of substance abuse by lawyers).

The ICLR met in San Francisco in 2013 (in conjunction with the NOBC meeting), London in 2014, and Toronto in 2015.    You can access the materials from the 2015 Toronto ICLR Conference here; the materials from prior conferences are available as links from the current ICLR homepage.   For more information about the creation of the ICLR, see this article about its formation. Legal profession regulators have been slower to form international networks than have some other types of regulators – for example, there are international networks of banking, antitrust, and medical regulators.

SDNY Rejects Jacoby’s Suit Challenging Rule 5.4’s Prohibition on Outside Investment & Nonlawyer Partners

Laurel TerryLeave a comment

As the ABA Journal reports, the U.S. District Court for the Southern District of New York has dismissed a complaint brought by law firm Jacoby & Myers challenging Rule 5.4’s ban on nonlawyer partnership & outside investment in law firms.  This follows a remand from the Second Circuit. Lawyers for the plaintiffs have said they plan to appeal the decision to the Second Circuit.  The suit, which raises 1st and 14th Amendment arguments, cited ideas discussed by casebook author Renee Knake.

Outside investment in law firms, which is sometimes referred to as alternative business structures or ABS, is available in England and Wales and Australia (and is under consideration in parts of Canada) but remains controversial.  For example, the ABA Commission on Ethics 20/20 circulated a discussion paper on the topic, but in the face of negative reaction announced that it would not consider the issue further.   (See here for my article on the work of the Ethics 20/20 Commission).

CCBE wins case against the Dutch State on surveillance of lawyers

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The CCBE, which represents the bars and law societies of Europe, issued a press release today announcing that “The District Court of The Hague has ruled that surveillance of lawyers by intelligence agencies constitutes an infringement of fundamental rights and orders the State to stop.”  The press release includes links to a number of CCBE and other documents on this topic, which has been an issue of great concern in Europe.

Canada’s largest legal province creates task force to consider more proactive lawyer regulation

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During its June 25, 2015 meeting, the governing body of The Law Society of Upper Canada, which regulates Ontario lawyers, approved the creation of a task force to study compliance-based entity regulation (and another Task Force to promote wellness and address mental health and addiction issues.)  The LSUC action was based on a report found here which was prepared by the Law Society’s Policy Secretariat and contains useful background information and a proposed structure for each task force.

The information about the task force on compliance-based entity regulation starts on p. 8. The Report explains at paragraphs 30-31 that “Compliance based regulation shifts regulatory emphasis from responding to complaints and enforcement through discipline to a proactive approach in which goals, expectations and tools for licensees are established. This means that licensees can themselves ensure that they have appropriate systems and processes in place to achieve regulatory compliance. Compliance-based regulation has been generally been implemented together with entity regulation. The goal is the improvement of regulatory results through a set of defined objectives that all legal services providers seek to achieve, on the basis that practice processes and systems are most effectively addressed at the firm or entity level.” See here.

 The LSUC press release about the new Task Force is found here.  For information showing US interest in proactive lawyer regulation, see the Session 1 materials from the ABA CPR’s 40th National Conference on Professional Responsibility held in Long Beach and a forthcoming Entity Regulation FAQ document that will be posted on the National Organization of Bar Counsel’s NOBC webpage.