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In 1994 the World Trade Organization was born amid hopes of spreading the blessings of free trade. That same year, White & Case, Chadbourne & Parke, and Ashurst Morris Crisp opened the first foreign law offices in India. Nine years later, Chadbourne’s India outpost is long gone, Ashurst has a mail-drop, W&C’s India practice is based in Singapore, and the fight for a foreigner’s right to practice languishes in Indian courts. For years we’ve been told that any big firm worth its salt is a global firm. But there’s a little problem with that notion: all the protectionist rules that block foreign lawyers from truly being equals at the bar. In the business world, there’s a fix for such problems. It’s known as a free trade agreement. So far, no multilateral agreement has explicitly included legal services. But what if one did? Several major firms have succeeded in getting legal services included on the agenda of the Doha Round of trade talks, due to conclude by January 1, 2005. Whatever comes of that won’t happen overnight. “This is not a new fight,” says Gregory Spak of White & Case in Washington, D.C. “It’s the same fight we fought in western Europe a generation ago. We simply want to offer high-quality legal services in whatever markets our clients serve.” Except, of course, there’s nothing simple about it. The rationale for liberalizing legal trade is clear. The Office of the U.S. Trade Representative, in December 2000, formally recognized the role of legal services as an export. “Increasingly businesses are requesting advice from law firms on transactions involving multiple jurisdictions,” it stated. “Law firms pave the way for international trade and investment and are … part of the infrastructure of commerce.” Indeed, that trend can be quantified. According to U.S. balance of payment statistics, revenues from the export of legal services grew from less than $100 million in 1986 to more than $3.2 billion in 2000, the latest year for which the estimate is available. This is equivalent to about 10 percent of that year’s combined revenues for the Am Law 100. And many experts believe it’s an undercount. Whether the number is closer to $6 billion than to $3 billion, law firms have enough of a collective stake to start acting like an industry. In mid-2000 a U.S. group named the Coalition of Service Industries formed a legal services committee, with active members from global stalwarts like White & Case, Baker & McKenzie, and Cleary, Gottlieb, Steen & Hamilton. The group contacted every law firm it knew to have an office overseas — more than 100 firms in total. In consultation with the bar associations of New York City and New York State, the committee developed a proposal that satisfies all of them. The nub of the proposal is to give law firms abroad free rein to found offices under their own names, or form joint ventures or partnerships and hire local lawyers to do purely local work such as real estate deals. U.S. lawyers, for example, would be free to work for foreign law firms and take the local bar exam. Or — more importantly — they could skip the local bar exam and work for U.S. outposts as “foreign legal consultants.” As such, American lawyers could practice whatever kind of law they might practice at home. This pointedly covers all forms of international and trans-border advice. The short list of countries where the current rules are, to varying degrees, more restrictive than that would include Brazil, China, Hungary, Indonesia, Japan, Mexico, the Philippines, Singapore, South Korea, Turkey, Vietnam — and India. Those views are now getting heard in the Doha Round negotiations. During March the United States was circulating an official reference paper that reflects the coalition’s position. The U.S. is also making similar demands in various bilateral and regional trade negotiations, including the Free Trade Area of the Americas negotiation (the hemispherewide expansion of the North American Free Trade Agreement). The coalition’s proposal has been endorsed by the ABA Section of International Law and Practice. But the lawyer-regulatory community is more cautious. The ABA Center for Professional Responsibility questioned in a 2001 memo to the ABA Board of Governors “whether the state supreme courts, which retain the power to regulate the practice of law in the United States, will appreciate the American Bar Association adopting a policy that supports federal government negotiation of that power.” A leading academic in this area, Laurel Terry of the Dickinson School of Law at Pennsylvania State University, suggests that the state-controlled system of bar admission and discipline is an “awkward fit” with the global trade system, which generally requires nations to speak with one voice. Only 24 U.S. states currently recognize foreign legal consultants. Yet trade rules would generally require the U.S. to offer reciprocal access to lawyers from any foreign nation that accedes to U.S. demands for market access. Cleary’s Donald Morgan. who serves on the coalition’s legal services committee, calls this a false issue. “The feds have no intent to take over state regulation of law,” he argues. The U.S. would simply offer access to foreign lawyers in the states that grant access. And all the states that matter already grant access. Morgan scoffs: “Do you know any English solicitors’ firms that want an office in Idaho?” You never know. Just in case a global potato law boutique does lurk in London, the ABA aims to bring Idaho on board, along with the other 25 protectionist states. At the ABA’s August 2002 meeting, the Commission on Multijurisdictional Practice recommended, and the House of Delegates adopted, a resolution urging all U.S. states to allow foreign lawyers to practice here. So far that hasn’t changed any state’s rules, but these things usually gestate for years. At this early stage of the trade negotiations, the chorus of law firm approval for liberalizing legal trade can easily drown out the skeptical voices. But listen to Lori Wallach, a Harvard-trained lawyer who heads Public Citizen’s Global Trade Watch. “In a variety of service sectors,” she says, “we’re seeing the same issues of large, unaccountable, megamerged entities snuffing out the competition. It’s the same with legal services.” Or listen to Akira Kawamura, a member of the International Bar Association’s WTO committee, and a partner at Tokyo’s 120-lawyer Anderson Mori. “The U.S. and U.K. megafirms want to exploit the value of their brands everywhere in the world,” he says. “That may bring positive change to the legal community. But it also may cause trouble.” Among his concerns: that Japan’s 20,000 lawyers would be swamped by America’s million, and that Japanese firms might cede the most lucrative work to global competitors, leaving only subpremium local practices. Even if trade in legal services were part of the agreement emerging from Doha, countries like Japan might not adopt those provisions. Free trade agreements only go where they’re wanted. In the short term, places like the United Kingdom, which already embrace free trade in practice, are more likely to accept new treaty obligations. Still, the proponents call that progress. “Freezing in place good practice is a good thing,” Cleary’s Morgan says, “even in countries where we all have offices.” Legal trade experts have learned from experience to keep their expectations modest.

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