Can the IBA succeed where European lawyers have failed on one of the legal profession's most sensitive issues – rights of establishment?
Encouraged by an IBA meeting in Budapest at which lawyers from Central and Eastern Europe expressed concern about the number of foreign lawyers arriving in their midst, the IBA decided in June 1993 to put together guidelines on the establishment of foreign lawyers outside their home jurisdiction.
Three years later, draft guidelines on “foreign legal consultants” have been produced, but finalisation hangs in the balance because of opposition from a number of quarters – most importantly the CCBE, which groups the national Bar associations of the European Union.
The thrust of the guidelines is in line with the CCBE draft directive on the rights of establishment of lawyers within the EU.
According to Ben Greer, a partner at Atlanta-based Alston & Bird, who is heading the project, they will “provide a framework within which a foreign lawyer can go to another jurisdiction and, provided he complies with certain procedures in the host jurisdiction, can give advice on the laws of the home jurisdiction”.
But getting agreement has not been easy. Greer points to a number of problem areas: the use of the term “foreign legal consultants”; the scope of a foreign legal practice; regulation and discipline of foreign lawyers; and indemnity insurance.
However, incoming president Desmond Fernando accepts that the project was always going to be difficult – “but it has to be done”.
Francis Neate, head of the Section on Business Law, agrees: “It is a very sensitive issue. But one of the main purposes of the organisation is to enable lawyers of different legal systems and cultures to meet and educate each other. The efforts to agree the guidelines is a good thing”.
A session at the Berlin conference will discuss the draft guidelines and, according to Greer, they will then be examined by the European Bar presidents' meeting in Vienna in February. The aim, he says, is to get them approved by the IBA Council in June next year.
But some see this timetable as too optimistic. One insider believes that, given the differences, agreement is unlikely ever to be forthcoming, suggesting that some within the IBA do not believe that it is a matter that should be dealt with by organisation.
“The undercurrent is not really addressed to the rationale of the guidelines but rather to the question of whether it is a good idea to have guidelines at all.”
This is also the position of the CCBE. Officially, it has said it would not respond to the draft guidelines sent to it for comment, arguing that the issue would be dealt with by the World Trade Organisation. The WTO has not yet made a close examination of legal services, but has indicated that they are next in line, once accountancy services have been dealt with.
But the CCBE is also deeply divided on the issue. On one hand, the UK delegation is happy for see rights of establishment addressed on a global scale by the IBA or the WTO. But others, led by the French delegation, are suspicious. One insider says: “It is an absolute re-run of the draft directive.”
So far, the IBA is pushing ahead in spite of the growing uncertainties. Fernando comments: “There will be more discussions to flesh out the problems”. Neate adds: “The effort is worth it and we have to go on trying.”
“A purpose of the organisation is to enable lawyers from different legal cultures to meet and educate each other”