Laurel S. Terry

MDPs: Reflections from the US perspective

As Elspeth Deards has indicated in her article, MDPs have been on the agenda of numerous bar associations around the world. While her article examines this phenomenon from the English perspective, this article focuses on the responses to MDPs from the United States. The purpose of this article is to provide information that will be useful for comparative re ̄ ections about MDPs. This article begins with a section that focuses on the American Bar Association response to the MDP phenomenon. It continues by noting developments that have occurred in the United States during the past year. Thirdly, it highlights those issues that have been of particular concern in the US. Finally, the article concludes by pointing out some areas in which the US approach to MDPs may diþ er from the English approach described by Elspeth Deards.

Lawyers, Regulation of

This article is a revision of the previous edition article by E. Chambliss, volume 12, pp. 8559–8564,

Reflections on U.S. Policies Regarding 'Effective Regulation and Discipline' and Foreign Lawyer Mobility: Has the Time Come to Talk About the Elephant in the Room?

The ABA has adopted four model policies that address, in one way or another, the issue of foreign lawyer mobility. These policies are the ABA Model Foreign Legal Consultant Rule, which is commonly known as the FLC rule, the ABA Model Rule for Temporary Practice by Foreign Lawyers, which is commonly known as the FIFO rule, ABA Model Rule of Professional Conduct 5.5, which permits foreign lawyers to serve as in-house counsel, and the ABA Model Rule on Pro Hac Vice Admission. All four of the ABA’s foreign lawyer mobility recommendations include a requirement that the mobile foreign lawyer is “subject to effective regulation and discipline by a duly constituted professional body or a public authority.” In other words, these rules set forth requirements regarding the nature of the regulatory system in the foreign lawyer’s home jurisdiction. A number of U.S. states have included this requirement in their foreign lawyer mobility provisions, but a number have not. (Some countries have a somewhat comparable provision in their foreign lawyer mobility rules, but other countries do not.) Although the ABA model rules and a number of state rules include this requirement, neither the ABA Model Rules nor any of the state rules have defined what it means for a foreign lawyer to come from a system with “effective regulation and discipline.” Nor is there any evidence that this requirement has been enforced in those states that have included this requirement. This article suggests that the “effective regulation and discipline” requirement has been an elephant in the room that no one has been willing to talk about. The article argues that the time has come to confront this issue head-on. It asserts that either efforts should be undertaken to define and enforce this requirement or that the requirement should be abandoned. The article reviews two “threshold” issues that jurisdictions might want to consider when deciding whether to adopt or retain an “effective regulation and discipline” requirement. It also identifies resources that might be consulted for “benchmarking” purposes if and when U.S. regulators decide to add “meat to the bones” by defining and enforcing the “effective regulation and discipline” requirement found in foreign lawyer mobility provisions.