The Regulation of the Transnational Legal Profession in the United States

• Author: Robert E. Lutz
• Position: Paul E. Treusch Distinguished Professor of International Legal Studies, Southwestern Law School, rlutz@swlaw.edu. This article and the related article symposium are dedicated to the memory of Professor Steve Zamora, good friend and colleague, who inspired this and many North American transnational legal initiatives. Steve organized and served...
• Pages: 445-466

The Regulation of the Transnational Legal

Profession in the United States

R

OBERT

E. L

UTZ

*

I. The Nature of Professional Regulation and Regulatory

Methodologies

1

A. R

EGULATORY

M

ETHODOLOGIES

In the United States, there are mixed receptions to “regulation”—whether

it is directed at private commercial activity (big or small), the professions, or

is designed to constrain the acts of government. When private enterprise’s

laissez faire excesses fail to account for the public interest, civil society

frequently implores government to intervene on behalf of the greater good

to bring equilibrium and to preserve certain public interests. In contrast,

when the clamp of governmental regulation becomes too onerous for the

private sector (e.g., standards-setting, licensing and compliance

requirements, taxes, etc.), requests for relief (“deregulation”) are often

sought by affected sectors in coordination with certain public sectors, which

feel the government has overreached. Even the government, which

* Paul E. Treusch Distinguished Professor of International Legal Studies, Southwestern

Law School, rlutz@swlaw.edu. This article and the related article symposium are dedicated to

the memory of Professor Steve Zamora, good friend and colleague, who inspired this and many

North American transnational legal initiatives. Steve organized and served as the Executive

Director of the North American Consortium of Legal Education (“NACLE”); the biennial

gathering of academics from the participating law schools—on March 10-12, 2016 in

Monterrey, Mexico—served as the platform for presentations from the authors of this

symposium on the topic of the “Regulation of the Legal Profession.” Steve’s much too early

and sudden death left important planned work to be done on building bridges for the legal

profession among our countries, and memory of him and his steadfast commitment to these

efforts will continue to inspire us.

1. Some of the themes about professional regulation and other insights also benefitted from

the author’s chairmanship of and longtime active involvement in the American Bar Association’s

Task Force (now an ABA Standing Committee) on International Trade in Legal Services (ITIL)

(2002-present), where he served as Chair for 2006-10, his chairmanship of the ABA Section of

International Law (2001-02) (SIL), his chairing of the SIL Transnational Legal Practice

Committee, and his participation in the La Biennale Business & Droit Rencontre Entre Acteurs

de L’Entreprise et du Droit, at the Palais de la Bourse, Lyon, France (Dec. 2, 2011). An article

of his on the subject was published in LA SEMAINE JURIDIQUE ENTREPRISE ET

AFFAIRES (July 26, 2012; Lexis-Nexis Publishers), entitled La conformite: Nouvelles regles et

nouveaux defies pour professions juridiques internationals—Une perspective americaine (“An Essay on

the American Perspective on Lawyer Conduct and Discipline: New Norms and Challenges for

the International Legal Profession”—translated from English into French by Bertrand du

Marais).

THE YEAR IN REVIEW

AN ANNUAL PUBLICATION OF THE ABA/SECTION OF INTERNATIONAL LAW

PUBLISHED IN COOPERATION WITH

SMU DEDMAN SCHOOL OF LAW

446 THE INTERNATIONAL LAWYER [VOL. 50, NO. 3

maintains surveillance over its own regulatory activities, will go through

various cycles of regulatory reform to strike the correct balance (e.g., with

respect to transparency, accountability, and administrative efficiency) among

the goals of ensuring innovation, profitability, flexibility, freedom of action,

and the public good.

2

Thus, even though “regulation” is generally defined as “the imposition of

rules by government, backed by use of penalties that are intended specifically

to modify the economic behavior of individuals and firm [sic] in the private

sector,”

3

the methods employed and the imposing authority may be other

than “government,” by delegation or simply by the desire of a business to

self-regulate. In short, “regulation” can mean many things to many people,

and its public acceptance can be cyclical.

II. Overview of the Regulation of the U.S. Legal Profession

A. G

ENERAL

In the realm of the regulation of the professions,

4

America’s lawyers may

be a privileged lot, especially with respect to how their profession is

regulated. Compared to the regulation of the legal profession in other

countries, lawyers in the United States are, to a large extent, self-regulated.

That is, they are regulated from within the profession itself by the

representative organizations of the profession.

5

U.S. state bar associations

and U.S. state supreme courts are the principal standard-setters and

enforcers on a state-by-state basis.

6

More specifically in recent years, the

Conference of State Chief Judges (“CCJ”), an organization composed of

sitting chief justices of state supreme courts, has focused on transnational

issues involved in regulating the legal profession, attempting to guide the

nation’s states with respect to such issues.

7

State supreme courts also have a

principal role in governing qualification and setting standards regarding

required conduct of those in the profession, as well as meting out

punishment to those who may stray. While model ethical standards are

developed at the national level, and mostly by the American Bar

2. See, e.g., “Over-regulated America”,

T

HE

E

CONOMIST

, Feb. 18-24, 2012, at p. 9. See also

other related articles in the same issue: “Tangled up in green tape” (p. 27-28); “Of Sunstein and

sunsets” (p. 28-29); “America is becoming a less attractive place to do business” (p. 71); “measuring the

impact of regulation—The rule of more” (p. 77); “European financial regulation—Laws for all” (p.

56).

3. See “Regulation” in

G

LOSSARY OF

I

NDUSTRIAL

O

RGANISATION

E

CONOMICS AND

C

OMPETITION

L

AW

(compiled by R.S. Khemani & D.M. Shapiro) (OECD, 1993).

4. See generally United States Network for Education Information,

R

ECOGNITION OF

F

OREIGN

Q

UALIFICATIONS

: P

ROFESSIONAL

R

ECOGNITION

,

http://www.ed.gov/international/usnei/us/

profrecog.doc (last visited Sept. 10, 2016).

5. See discussion infra.

6. See, e.g., William T. Gallagher, Ideologies of Professionalism and the Politics of Self-Regulation

in the California State Bar, 22

P

EPPERDINE

L. R

EV

.

485 (1994-95) (illustrating California’s

structure).

7. See

C

ONFERENCE OF

C

HIEF

J

USTICES

, http://ccj.ncsc.org/ (last visited Sept. 10, 2016).

THE YEAR IN REVIEW

AN ANNUAL PUBLICATION OF THE ABA/SECTION OF INTERNATIONAL LAW

PUBLISHED IN COOPERATION WITH

SMU DEDMAN SCHOOL OF LAW