Discussion Issues: Concurrent Session on Professional Ethics
Mary C. Daly,
Fordham University School of Law
This breakout session rests on the assumption that most of the participants currently teach professional responsibility and are interested in either incorporating a globalization perspective into their courses or offering a course or seminar exclusively devoted to the globalization of the legal profession. 1
The participants will briefly exchange views at the session's beginning, identifying the academic, professional, and market forces that support the proposed modification of the traditional law of lawyering curriculum. A substantial part of the session will focus on the substantive areas in the curriculum that most easily lend themselves to a discussion of issues related to globalization and cross-border legal practice.2 For example, the participants' attention will be directed to the very stark differences in the application of the attorney-client privilege in the U.S. and European Union courts to communications between in-house counsel and a corporate client. Conflicting and inconsistent understandings of the principle of avoidance of conflicts of interest and professional independence will also be explored.
Practical suggestions will be offered including how teachers can use hypotheticals and the problem-solving method to incorporate cross-border practice issues.3 The participants will share their views on whether it is more pedagogically effective to adopt a pervasive approach, incorporating materials relating to cross-border practice and globalization throughout the curriculum, or to group these materials in a separate stand-alone chapter. The session will identify those areas in the curriculum in which a comparative perspective can correct some of the common misconceptions about the U.S. legal profession, such as the frequently repeated observation that the United States has more lawyers per capita than any other country in the world. Finally, this portion of the session will explore whether the existence of a cadre of cross-border practitioners whose ties of allegiance to the jurisdiction of licensure is attenuated threatens the traditional understandings of the role of the lawyer as an intermediary between the state and the individual and encourages lawyers and clients to view legal services simply as a commodity subject only to the rules of the marketplace.
Participants who are interested in offering a course or seminar devoted exclusively to the globalization of the legal profession will be invited to share their views on the offering's structure and content. They will also be asked to address ways of organizing the offering so that it will appeal to students whose career interests are in areas other than cross-border practice, such as family and criminal law.
At the present time, there is no text devoted exclusively to exploring professional responsibility issues in the context of cross-border practice. Several professors have assembled individual course packets for seminars on the topic and are likely to be most willing to share their material.4 Attached as Appendix D is the syllabus, an example of a research assignment, and the table of contents for Global Regulation of Lawyers: Statutes and Standards, prepared by Professor Laurel S. Terry, Penn State Dickinson School of Law, in connection with her seminar, Cross-Border Legal Practice. Attached as Exhibit E is the Table of Contents for the seminar Transnational Legal Practice taught by the presenter.
- View Appendices A-E [PDF file]
- View Professor Daly's article on The Ethical Implications of the Globalization of the Legal Profession [PDF file]
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- For an extended discussion, see Mary C. Daly, The Ethical Implications of the Globalization of the Legal Profession: A Challenge to the Teaching of Professional Responsibility in the Twenty-First Century, 21 Fordham Int'l L.J. 1239 (1998). The article identifies ten areas as particularly suitable for incorporating a globalization or cross-border practice perspective and provides citations to useful primary and secondary materials in the accompanying footnotes. Those areas are: codes of conduct and cultural understandings of a lawyer's role; admission, education, and the structure of the bar; the role of the U.S. Supreme Court and the European Court of Justice in eliminating barriers to practice by non-residents; discipline, the attorney-client privilege and the status of in-house counsel; assisting in illegal conduct: bribery of foreign officials and corporate employees, compliance with the U.S. antiboycott law; malpractice liability and the ethical duty of competence; conflicts of interest, fees; and advertising.
- Appendix A is a list of the materials that the presenter uses in the international practice portion of the course Professional Responsibility: Corporate and International Practice. The selected materials can be used as a stand-alone chapter or integrated into the curriculum pervasively. Appendix B offers some hints on how to research globalization and cross-border issues.
- Attached as Appendix C is an illustrative set of hypotheticals.
- In addition to the presenter, they include Professor Milton C. Regan, Jr., Georgetown University Law Center and Professors Lisa Lerman and Leah Wortham, Catholic University School of Law.