Issue: General Agreement on Trade Services
The GATS was agreed to by the US as part of the 1994 agreement establishing the World Trade Organization (WTO). Legal services are covered by the GATS agreement and there are ongoing negotiations to “liberalize” licensing requirements for foreign lawyers to practice law in the U.S. When a state supreme court approves a USTR request to “list” its rule (e.g., on foreign legal consultants) as part of a GATS offer, its authority to modify the rule in the future may be limited.
No formal position
In 1994, the USTR included rules on foreign legal consultants (FLCs) of 16 states (AK, CA, CT, DC, FL, GA, HI, IL, MI, MN, NJ, NY, OH, OR, TX, and WA) in the agreements signed at the time the WTO was established. It is not clear who in these states approved listing the state’s rule. In 2003, the USTR asked the Chief Justices of the states that had adopted an FLC rule since 1994 (AZ, IN, LA, MA, MO, NM, NC, and UT) to permit their rules to be listed. In May 2005, USTR updated its offer adding the all but the MO rules to the list. Under GATS, any narrowing of a trade commitment is subject to challenge or requires negotiations and offsetting concessions. Under the US implementing legislation, the federal government may seek a declaratory judgment to nullify a state action inconsistent with a specific US commitment under GATS, including amendment to a listed FLC rule.
The GATS negotiations in Geneva have stalled and will not re-start until a new US Trade Representative has been appointed. Success of the negotiations on trade in services is tied to the negotiations on trade in agriculture and manufacturing.
Jonathan Goldsmith, Secretary-General of the Council of Bar Associations and Law Societies of the EU (CCBE) presented a proposed Model Rule on Lawyer Disciplinary Enforcement at the 2007 CCJ/COSCA Annual Meeting. The Model Rule also was discussed at the ABA Annual Meeting. Subsequently, several European Bars voiced concern that the US “identical sanctions” language is too strong. A new Memorandum of Understanding requiring only an exchange of information has been provided by CCBE to CCJ for consideration. That MOU has been circulated to the CCJ membership in preparation for discussion at the 1/2009 Midyear Meeting. The MOU has been recast as a resolution in anticipation that a parallel resolution will be passed by CCBE. Discussions are continuing over the wording of the parallel resolutions.
At the 2007 CCJ Midyear Meeting, CCJ adopted resolutions urging state supreme courts to consider allowing graduates of Australian law schools to sit for their bar examinations and urging the ABA Section on Legal Education to consider developing a process for recognizing law schools in common law countries as equivalent to ABA-accredited law schools. Representatives of the Law Council of Australia (LCA) met with the Professionalism and International Agreements Committees at the 2007 CCJ/COSCA Annual Meeting to provide an update on its discussions with various states regarding admission of Australian law graduates. It is likely that the LCA will send a proposal on coordinating discipline of Australian lawyers practicing in the US and US lawyers practicing in Australia.