Lawyers Without Borders01 Jan 2009
Professional regulation of attorneys is still attempting to catch up with the burgeoning international legal profession, which until recently has been wholly unregulated. The primary effort has been through revisions to Model Rule 8.5 to extend the reach of the Rule to international cases and professional activities in foreign countries. Because Rule 8.5 was drafted for domestic multi-jurisdiction practice, however, it is based on assumptions about territoriality and the historical relationship between the jurisdiction of tribunals and the licensing of attorneys that are simply inapposite in international settings. As a result, applying Rule 8.5 to international tribunals and international advocacy produces anomalous and often problematic results.
A more careful examination of how the Rule would operate in various practical settlings reveals not only shortcomings in the Rule, but the need for a new conception of what it means to be an "international lawyer" or a "global advocate," and the need for a new approach to regulating these individuals. For the short and medium term, I propose a series of proposals for rewriting the Rule to provide for interim management of these issues.
While Rule 8.5 is a meaningful attempt to respond to an obvious need to regulate international law practice, I argue that it causes more problems than it resolves and must be completely rewritten as applied to international legal practice. Ultimately, however, resolving the problems with Rule 8.5 is only a first step in the ominous but important task of developing a coherent regulatory regime for international legal practice. In a related forthcoming article entitled The Global Advocate, I will take up these challenges.