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Foreign lawyers have set up shop in 24 U.S. states that allow them in. But unless all the states open their doors, there is a fear that U.S. lawyers will be tossed out of other countries in retaliation. The U.S. trade representative and the American Bar Association have pressured recalcitrant states to change their ways, according to several state chief justices who gathered for the midyear meeting of the Conference of Chief Justices, held recently in New York. But the regulation of lawyers has traditionally been a state function, and the states’ chief justices don’t see any reason to change that. The pressure largely comes from a U.S. government push for permission to say it will allow foreign legal consultants as a concession in negotiations aimed at liberalizing trade in services, as required by the General Agreement on Trade in Services. GATS is on the agenda of the World Trade Organization’s meeting in May. The Office of the U.S. Trade Representative did not return calls or e-mail requests for comment about tactics it has used in dealing with the states, which, the chief justices allege, has not been evenhanded. The ABA contends that there can be “an appropriate balance between maintaining state judicial regulation of the legal profession, which the ABA supports, and achieving the goals of [GATS],” said ABA President Robert Grey Jr. “We encourage and we suggest. We don’t pressure.” Grey said the ABA has had foreign legal representative policy on its books for 10 years as part of the organization’s “larger efforts regarding multijurisdictional practice,” all of which would improve the practice of law, he said. But several chief justices made it clear that they were unhappy with the situation. “We are very conservative on this issue,” said South Carolina Chief Justice Jean Hoefer Toal at the “emergent issues” plenary session of the CCJ. That conservatism generally includes any lawyer — foreign or domestic — crossing her state’s lines. Wisconsin Chief Justice Shirley Abrahamson, president of the CCJ, voiced the fears of many at the conference. “Foreign nations will retaliate if we don’t do it. � This is of major concern to law firms around the country,” she said. The conference took no action. Richard Van Duizend, a staff member of the CCJ’s International Agreements Committee, said that “it’s very much a states’ rights question: What rights does the federal government have in committing states? The boundaries haven’t been charted.” Many states not only continue to forbid the registration of foreign lawyers, but continue to circle their wagons so tightly that out-of-state attorneys can hardly get in. Only a dozen states have so far embraced the 2002 expansion of Rule 5.5 of the ABA Rules of Professional Conduct, which gives out-of-state lawyers more latitude, but by no means unfettered access. Foreign legal representatives give legal advice about their home country and other international law under a hodgepodge of regulations in those states that allow it. In 1974, New York initiated the practice of registering and regulating foreign legal representatives. Its expansive interpretation of what these lawyers are allowed to do formed the basis of the ABA Model Rules for the Licensing of [foreign] Legal Consultants, which few states have adopted. Another model rule, Temporary Practice by Foreign Lawyers, is akin to the more restrictive 5.5 multijurisdictional practice model rule. All the rules prohibit foreign lawyers from giving advice about federal or state law unless they have taken a state’s bar exam. Laurel Terry, a Pennsylvania State University Dickinson School of Law professor, thinks the ABA rules make sense. “We live in a global society — every state in the country has a significant amount of inbound and outbound foreign business,” said Terry, who specializes in global legal practice issues. “We need to regularize the practice of foreign lawyers.” The U.S. exported $3.38 billion in legal services in 2003, while importing $879 million, according to U.S. Department of Commerce statistics. GATS could potentially level the playing field, she said. Leonard Post is a reporter with The National Law Journal, a Recorder affiliate based in New York City.

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