Liberalizing Trade in Legal Services: The Gats, the Accountancy Disciplines, and the Language of Core Values


LIBERALIZING TRADE IN LEGAL SERVICES: THE
GATS, THE ACCOUNTANCY DISCIPLINES, AND THE

LANGUAGE OF CORE VALUES

Ryan W. Hopkins*

I. INTRODUCTION

The practice of law has become big business.1 The growth in law firm
size and revenue has resulted, at least in part, from the increasingly global
demands of clients.2 As a result, more and more lawyers are traveling abroad to
provide legal services.3. Although few of these lawyers would probably
consider themselves engaged in international trade, even when traveling abroad
to counsel clients, the "international trade in legal services" has become an
important and growing sector of many national economies.4 For example, in
1986 cross-border legal services exports from the United States amounted to
$97 million, while imports totaled $40 million. By 2001, cross-border exports

* L.L.M., Newcastle Law School, University ofNewcastle-upon-Tyne; J.D., University

of Pittsburgh School of Law. The author would like to thank Professor Ronald A. Brand of the
University of Pittsburgh School of Law for his continued encouragement and for his valuable
comments on a prior draft. Some portions of this Article also appear in Ryan W. Hopkins,
Comment, Will the General Agreement on Trade in Services Necessitate Federal lnvolvement in
Lawyer Regulation? Some Constitutional Implications of Regulating the GlobalLawyer, 66 U.
Pi'r. L. REv. (forthcoming Spring 2005). The author gratefully acknowledges the permission
granted by the University of Pittsburgh Law Review for use of this material.

1. Randall S. Thomas et al., Megafirms, 80 N.C. L. REv. 115, 116 (2001). "Big, bigger,
biggest. Corporate law firms have exploded in size in the last two decades. So have accounting
firms and investment banks. Many are now mammoth entities with thousands of employees,
billions in revenues, and offices throughout the world." Id. See also U.S. INT'L TRADE
COMM'N, RECENT TRENDS IN U.S. SERVICES TRADE: 2003 ANNUAL REPORT 10-6 (2003)
[hereinafter RECENT TRENDS] (noting that the largest law firm in the United States, Skadden,
Arps, Slate, Meagher & Flom, employed 1,800 lawyers and earned $1.2 billion in revenue in
2001).

2. Thomas et al., supra note 1, at 127. "Over the past thirty years, clients have shifted
toward asking firms to provide them with more and more services on a broader and broader
geographic basis. For example, globalization has led many clients to ask firms to handle
increasingly complex transactions across international borders." Id.

3. See World Trade Organization [hereinafter WTO] Council for Trade in Services,
Legal Services: Background Note by the Secretariat, S/C/W/43 at 25 (July 6, 1998)
[hereinafter Legal Services Background Note] (quoting an OECD study that found that by 1995,
over 300,000 of the world's lawyers traveled abroad to provide legal services at least
occasionally).

4. Id. 20 (noting that by "the early 1990s the output of legal services represented 14%
of all professional services and 1.1% of the economy in a 'representative' industrialised
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IND. INT'L & COMP. L. REV.

of legal services in the United States reached $3.1 billion and imports hit $755
million, yielding a $2.4 billion trade surplus.5

Despite these developments, many countries, including the United States,
have failed to account for this "cross-border" practice in the regulation of their
legal professions. 6 As a result, significant barriers to cross-border practice
remain.7 In order to ensure that these barriers advance legitimate regulatory
interests and do not unduly burden the cross-border provision of legal services,
forty-eight countries have made the cross-border elements of their legal services
sectors subject to the provisions of an international trade agreement called the
General Agreement on Trade in Services (GATS).8

The GATS is the first multilateral trade agreement devoted to the
progressive liberalization of the laws and regulations that govern the cross-
border provision of services. 9 The GATS, which is administered by the World
Trade Organization (WTO),10 governs a wide array of services, from banking to
tourism, and even accounting and legal services." Anytime a service or
services provider crosses a national border, the provisions of the GATS might
be implicated. The GATS only might be implicated in such cross-border
circumstances because when it was signed in 1995, much of how the GATS
will govern trade in services, including legal services, was left for future
negotiation.

These GATS negotiations are currently ongoing. The importance of
these negotiations for American lawyers should not be underestimated. The
GATS is important even for those practitioners engaged exclusively in domestic
practice because the GATS may eventually influence how lawyers are governed
in the United States. In the give-and-take of the legal services negotiations,

5. RECENT TRENDS, supra note 1, at 10-1.
6. See Laurel S. Terry, A Case Study of the Hybrid Modelfor Facilitating Cross-Border

Legal Practice: The Agreement Between the American Bar Association and the Brussels Bars,
21 FORDHAM INT'L L.J. 1382, 1384 (1998) ("[T]he development of cross-border practice
throughout the world has vastly outpaced the theory of whether and how such practice should be
regulated.") (italics in original); see also Ronald A. Brand, Uni-State Lawyers and
Multinational Practice: Dealing with International, Transnational, and Foreign Law, 34 VAND.
J. TRANSNAT'L L. 1135, 1137 (2001) (noting that "[w]hile the practice of law has moved from
being local to national to international in scope, the regulation of the profession in the United
States remains largely localized").

7. See Legal Services Background Note, supra note 3, 30-56 (noting barriers to cross-
border practice including, inter alia, nationality, experience, and residency requirements).

8. General Agreement on Trade in Services [hereinafter GATS], Apr. 15, 1994,
Marrakesh Agreement Establishing the World Trade Organization [hereinafter WTO
Agreement], Annex 1B, LEGAL INSTRUMENTS - RESULTS OF THE URUGUAY ROUND vol. 31, 33
I.L.M. 1125, 1168 (1994), available at http://www.wto.org/english/docs-e/legale/26-gats.pdf
(last visited Apr. 6, 2005).

9. WTO SECRETARIAT, GUIDE TO THE URUGUAY ROUND AGREEMENTS 161 (1999)
[hereinafter GUIDE TO THE URUGUAY ROUND AGREEMENTS].

10. See WTO Agreement, supra note 8.
11. See GATT Secretariat, Services Sectoral Classification List, MTN.GNS/W/120 (July

10, 1991) (listing the services sectors covered by the GATS).

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U.S. trade negotiators may be willing to grant foreign lawyers greater rights of
practice than those enjoyed by domestic practitioners. This, in turn, could lead
to calls from the American Bar to grant domestic lawyers interstate practice
rights within the United States or even the right to participate in
multidisciplinary partnerships (MDPs).12 Put another way, there is a chance
that U.S. trade negotiators might set in motion a chain of events that could
affect the way that law is practiced in this country; and they may do so without
the considered input of the profession itself.' 3 Despite the profound impact that
the GATS may have on U.S. lawyer regulations, the American Bar Association
(ABA) has neither taken a public position on the current GATS negotiations,
nor attempted to educate its members about the potential implications of the
negotiations, as have other national bar associations. 14 This is unfortunate not

12. The term "multidisciplinary partnerships" (MDPs) refers to partnerships between

lawyers and nonlawyers, often accountants. For information regarding ethical rules that

currently prohibit such partnerships in the United States, see MODEL RULES OF PROF'L CONDUCT

R. 5.4 (2003) (providing that "[a] lawyer or law firm shall not share legal fees with a

nonlawyer," and detailing a few narrow exceptions). However, this prohibition does not exist in

all countries, nor even are regulations consistent in different jurisdictions within the same

country. See, e.g., Steven Mark, Harmonization or Homogenization? The Globalization of
Law and Legal Ethics - An Australian Viewpoint, 34 VAND. J. TRANSNAT'L L. 1173, 1195

(2001) (noting that New South Wales is the only Australian jurisdiction to permit MDPs). For a

more comprehensive treatment of the issues surrounding MDPs, see Laurel S. Terry, A Primer

on MDPs: Should the "No" Rule Become a New Rule?, 72 TEMPLE L. REv. 869 (1999).

13. See Laurel S. Terry, GATS' Applicability to Transnational Lawyering and its

Potential Impact on U.S. State Regulation of Lawyers, 34 VAND. J. TRANSNAT'L L. 989, 1085

(2001). Professor Terry's article is required reading for those interested in exploring the

potential impact of the GATS on legal services. For those who are new to the GATS, see INT'L
BAR ASS'N, GATS: A HANDBOOK FOR INTERNATIONAL BAR ASSOCIATION MEMBER BARS (2002),

available at http://www.ibanet.org/images/downloads/gats.pdf [hereinafter IBA GATS

HANDBOOK] (providing an excellent introduction to the basic workings of the GATS and

comprehensive explanations of the sometimes unfamiliar terms often employed in trade
agreements).

14. See generally Laurel S. Terry, A Challenge to the ABA and the US. Legal Profession

to Monitor the GA TS 2000 Negotiations: Why You Should Care, Symposium Issue of PROF.

LAW. (2001) [Terry, Why You Should Care]. Although the ABA Center for Professional
Responsibility now has a website devoted to the GATS, in the view of this author, the site,

which links to various GATS documents, fails to explain the issues surrounding the GATS
negotiations in a cogent manner. Only through reading the primary GATS documents located
on the website can one gain an appreciation of the issues at stake in the negotiations.

Unfortunately, this would require an expenditure of time that few practitioners can spare. See

Am. Bar Ass'n Ctr. for Prof'l Responsibility, Materials About the GATS and Other
International Agreements, at http://www.abanet.org/cpr/gats/gats home.html (n.d.) (last visited

Apr. 14, 2005). The website also reports that "in 2003, ABA President A.P. Carlton appointed

an ABA GATS Task Force. This Task Force is responsible for coordinating ABA efforts
regarding the GATS," although little information is provided on the work of the Task Force to

date. While these ABA developments may prove to be positive, this author remains skeptical

that they will contribute to the enlightenment of the American bar. See generally Am. Bar

Ass'n, American. Bar Association, at http://www.abanet.org (n.d.) (last visited Apr. 14, 2005).

An exception to the general lack of enthusiasm for explaining the impact the GATS may have on
American lawyers is the writing of Professor Laurel Terry. Professor Terry is "a liaison from

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only for American lawyers, but, as will be highlighted below, the solutions to
multijurisdictional practice issues that the ABA has proposed in the domestic
context might provide a point of compromise in the GATS negotiations. 5

Of the bar associations that are participating in the discussion of how the
GATS rules will come to regulate the legal profession, many have been less
than enthusiastic about some of the proposals put forward in the negotiations.
This is understandable given that comprehensive GATS rules may impinge on
the ability of national authorities to regulate all aspects of the legal profession
within their respective jurisdictions. One of the principal criticisms of the
GATS proposals from national bar groups and other legal professionals is that
the proposals violate one or more of the "core values" of the legal profession.

It is typically the case that when new regulatory structures are proposed in
response to the ever-changing realities of legal practice, the charge is advanced
that the new rules violate one or more of these core values of the legal
profession.' 6 Reliance on core values can be seen as a strategy of sorts to
preclude debate on certain topics; to place certain principles beyond the realm
of negotiation. It is strategy, in other words, for protecting what the profession
holds most dear. It must also be recognized, however, that core values
arguments are subject to abuse. They may be deployed to squelch debate even
where legitimate controversy exists and are a convenient method of protecting
the regulatory prerogatives of entrenched interests. 17

This Article proposes to evaluate the impact that core values arguments
are likely to exert upon the prospects for a successful conclusion of the GATS
legal services negotiations. In particular, this work seeks to highlight the
potential for obstruction that reliance on core values presents. Part II of this
Article begins by explaining the ways in which the GATS affects trade in legal
services, providing the necessary background for an understanding of the
negotiations currently underway to liberalize trade in legal services. These

the ABA Center for Professional Responsibility to the ABA GATS Task Force," Laurel S.
Terry, Current Developments Regarding the GA TS andLegal Services: The Cancun Ministerial
GA TS Negotiations, B. EXAMINER 38 (Feb. 2004) [hereinafter Terry, Cancun Ministerial], and
has written an excellent series of articles on the GATS legal services negotiations. These
articles are available at http://www.abanet.org/cpr/gats/articles.html (last visited Apr. 14, 2005).

15. See infra Part VI.
16. In the United States, such charges were most forcefully promoted in the debate within

the ABA over whether to amend the Model Rules of Professional Conduct to permit lawyers to
participate in multidisciplinary partnerships (MDPs). Dale R. Harris, Remarks at the American
Bar Association House of Delegates Debate on Multidisciplinary Partnerships (July 11, 2000),
available at http://www.abanet.org/cpr/mdphodtransc.html (noting support for
multidisciplinary partnerships "provided that they be done in a way to protect the public interest
and preserve our core values") (last visited Apr. 6, 2005). In reaction to the MDP debate, the
ABA adopted a resolution affirming the core values of the legal profession. AM. BAR ASS'N
HOUSE OF DELEGATES RECOMMENDATION (July 2000), available at http://www.abanet.org/cpr/
mdprecoml0f.html (last visited Apr. 6, 2005) [hereinafter ABA CORE VALUES
RECOMMENDATION].

17. As Sydney Cone has put it, "[n]ot infrequently, the local legal profession, in the name
of protecting 'the public,' has done a mighty fine job of protecting itself." SYDNEY M. CONE III,
INTERNATIONAL TRADE IN LEGAL SERVICES § 3:1 (1996).

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negotiations are the focus of Part III. Part IV enumerates the key provisions of
the prime negotiating document, the Disciplines on Domestic Regulation in the
Accountancy Sector,'8 and explains the more forceful criticisms of those
provisions offered by some national bar associations. Part V is devoted to
evaluating the bar associations' critiques and to gauging the consequences of
the core values arguments they advance. Finally, although the ABA has not
expressed its view of the core values debate, Part VI considers how some "core
values" arguments might be resolved under the ABA Model Rules of
Professional Conduct and how recent developments within the ABA could
provide a basis for compromise in the current GATS negotiations.

In the end, this Article concludes that the core values arguments
promoted by some bar associations are most accurately seen as efforts by
national authorities to maintain their traditional regulatory monopolies over
legal professionals, and thus have the potential to foreclose the resolution of
issues that are crucial to a successful conclusion of the legal services
negotiations.

II. THE GENERAL AGREEMENT ON TRADE IN SERVICES: How THE GATS

AFFECTS TRADE IN LEGAL SERVICES

The negotiation and signing of the GATS during the Uruguay Round
trade negotiations signaled the large and growing importance of "trade in
services" to the global economy. 19 Moreover, the centrality of the GATS in the
international regulation of services regimes have led some to call the
Agreement the most important development in the multilateral trading system
since the General Agreement on Tariffs and Trade (GATT) became effective in
1948.20 Nevertheless, these are still early days for the GATS and much of how

21
its rules will govern trade in services has been left for future negotiations. In

18. WTO Council for Trade in Services, Disciplines on Domestic Regulation in the
Accountancy Sector, S/IL/64 (Dec. 17, 1998) [hereinafter Accountancy Disciplines].

19. See WTO, INTERNATIONAL TRADE STATISTICS 2003 (2003), http://www.wto.org/
english/res e/statis_e/its2003_e/its2003_e.pdf(last visited Apr. 6, 2005). In 2002, the value of
global services exports totaled $1,570 billion U.S.D., or nearly a quarter of all exports
worldwide. Id. at 2. In order to get an idea of the magnitude of the growth of the services trade
in recent years consider that exports of services rose six percent over the year 2001-2002, an
increase that represents the same amount of growth over the ten year period 1990-2000. Id.

20. GUIDE TO THE URUGUAY ROUND AGREEMENTS, supra note 9, at 161.
21. Id. "The GATS rules are not quite complete, and are largely untested. This process of

filling the gaps will require several more years of negotiations, and experience will no doubt
show a need to improve some of the existing rules." Id. Professor Laurel Terry has described
the GATS as an example of a "legislative-delegation model" of regulating the cross-border
provision of services because it leaves the task of developing more detailed obligations to
various WTO institutions. Terry, supra note 6, at 1392 (discussing the operation of such a model
in the development of rules to govern the cross-border provision of legal services).

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IND. INT'L & COMP. L. REv.

the meantime, we are left with the Agreement itself and the ways in which it
currently constrains WTO members from erecting protectionist barriers to
services markets.

The GATS obligations and derogations of WTO Member States are
found in the following documents: (1) the "framework agreement" 22 made up
of the twenty-nine articles and eight annexes23 found in Annex IB of the WTO
Agreement;24 (2) the Schedules of Specific Commitments 25 reflecting
obligations assumed by WTO Member States in specific services sectors at the
conclusion of the Uruguay Round negotiations; 26 and (3) lists of authorized
exemptions from most-favored-nation (MFN) treatment filed by WTO
Members with respect to certain services sectors.27 Each of these sources will
be considered in turn.

A. The Framework Agreement

Part I ("Scope and Definition") delineates the reach 28 of the Agreement
and provides a rather broad definition of trade in services. 29 This definitionincludes the supply of services in any one of four different "modes." These

22. See CONE, supra note 17, § 2:15 (using the term "framework agreement" to describe
the GATS itself).

23. GATS, supra note 8. Only one of these annexes, Annex on Article II Exemptions, is
relevant to legal services. See infra notes 54-57 and accompanying text. The other annexes
include: Annex on Movement of Natural Persons Supplying Services under the Agreement;
Annex on Air Transport Services; Annex on Financial Services; Second Annex on Financial
Services; Annex on Maritime Transport Services; Annex on Telecommunications; and Annex on
Basic Telecommunications. See GATS, supra note 8. The Annex on Movement of Natural
Persons Supplying Services under the Agreement would seem to apply to legal services.
However, on March 1, 1995, the Council for Trade in Services effectively nullified the import of
this Annex by adopting a conclusion of the Sub-Committee on Services that"what appears in the
schedules of participants is sufficiently clear and.., that there was no need for further multilateral
work on this issue." WTO Council for Trade in Services, Issues Relating to the Scope of the
GATS: Report by the Chairman of the Sub-Committee on Services, S/C/i (Feb. 15, 1995); WTO
Council for Trade in Services, Report of the Meeting Held I March 1995: Note by the Secretariat,
S/C/M/Il (Mar. 22, 1995).

24. GATS, supra note 8.
25. WTO, Guide to Reading GATS Schedules of Specific Commitments and the Lists of

Article 1I (MFN) Exemptions, at http://www.wto.org/english/tratop-e/serv-e/guidel- e.htm (last
visited Feb. 21, 2005) [hereinafter Guide to Reading GATS Schedules]. "A specific
commitment in a services schedule is an undertaking to provide market access and national
treatment for the service activity in question on the terms and conditions specified in the
schedule." Id. For an excellent explanation of how GATS schedules developed and their
foundation in the WTO request-offer system, see Terry, supra note 13, at 1004.

26. See infra notes 47-53 and accompanying text.
27. See infra notes 54-57 and accompanying text.
28. GATS, supra note 8, at art. I(1) ("This Agreement applies to measures by Members

affecting trade in services.").
29. Id. at art. I(3)(b) ("'services' includes any service in any sector except services

supplied in the exercise of governmental authority") (emphasis added).

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include: (1) the "cross-border" supply of services; 30 (2) the "consumption
abroad" of services; 3' (3) the "commercial presence" of foreign services
suppliers; 32 and (4) the temporary "presence of natural persons. 3 3  This
multifaceted definition of "services" may, at first blush, seem rather
complicated, but the four modes of supply form the categories in which WTO
Member States schedule concessions. 34 The categorization of services in this
way also permits meaningful comparisons of the varying restrictions that
Member States may impose in particular services sectors.35

GATS obligations imposed on Member States come in two basic
varieties, unconditional and conditional. Part II (entitled "General Obligations
and Disciplines") contains the unconditional obligations; those undertakings
that apply to all WTO Members regardless of whether they have scheduled
commitments in specific services sectors.3 6 The most important of these
obligations is the duty to provide most-favored nation (MFN) treatment to
services and service suppliers of other Members,37 an undertaking already well

30. Id. at art. I(2)(a) ("from the territory of one Member into the territory of any other
Member"). This mode of supply is implicated whenever the service itself crosses a border. See
Terry, supra note 13, at 1008 ("Mode 1 is involved whenever foreign lawyers create a legal
product or advice, which is then sent from outside the U.S. border to clients inside the United
States.").

31. Id. at art. I(2)(b) ("in the territory of one Member to the service consumer of any other
Member"). This provision speaks to the ability of a consumer from one Member State country
to go to another Member State country and to buy services while there. See Terry, supra note
13, at 1008 ("Mode 2, or Consumption abroad, involves the ability of U.S. citizens to purchase
abroad the services of foreign lawyers.").

32. Id. at art. I(2)(c) ("by a service supplier of one Member, through commercial presence
in the territory of any other Member"). This is also commonly referred to as the "right of
establishment." Terry, supra note 13, at 1008 ("Mode 3, or Commercial presence, involves the
ability of foreign lawyers to set up a permanent presence in the United States, such as a branch
office.").

33. Id. at art. I(2)(d) ("by a service supplier of one Member, through the presence of
natural persons of a Member in the territory of any other Member"). See Terry, supra note 13,
at 1008 ("Mode 4, or the presence of Natural Persons, addresses the situation in which the
foreign lawyers themselves enter the United States in order to offer legal services.").

34. See infra notes 47-53 and accompanying text.
35. Guide to Reading GATS Schedules, supra note 25 ("The national schedules all

conform to a standard format which is intended to facilitate comparative analysis.").
36. GUIDE TO THE URUGUAY ROUND AGREEMENTS, supra note 9, at 165 ("Part II sets out

'general obligations and disciplines.' These are basic rules that apply to all members and, for
the most part, to all services.").

37. GATS, supra note 8, at art. 11(l). "With respect to any measure covered by this
Agreement, each Member shall accord immediately and unconditionally to services and service
suppliers of any other Member treatment no less favorable than that it accords to like services
and service suppliers of any other country." Id.

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IND. INT'L & COMP. L. REv.

familiar to students of the GATT. There are, however, other unconditional
GATS commitments unknown to the GATT, including measures related to
transparency, 38 recognition of academic and professional qualifications, 39 and
provisions regulating internal licensing procedures, or domestic regulations.4 °

The conditional obligations of the GATS, which only apply to services
sectors in which a member has undertaken specific commitments, 41 are two-
fold and are found in Part III ("Specific Commitments"). The first of these
obligations is the prohibition on market access restrictions found in Article
XVI. 4

1 Specifically, this provision prohibits a Member from, for instance,
placing quotas on the number of foreign services suppliers,43 limiting the total
value of foreign services transactions, 44 or restricting the number of foreign
persons that may be employed in a particular services sector. 5

38. See Id. at art. 111(1).
Each Member shall publish promptly and, except in emergency situations, at the
latest by the time of their entry into force, all relevant measures of general
application which pertain to or affect the operation of this Agreement.
International agreements pertaining to or affecting trade in services to which a
Member is a signatory shall also be published.

Id.
39. See Id. at art. VII(I).

For the purposes of the fulfillment, in whole or in part, of its standards or criteria
for the authorization, licensing or certification of services suppliers... a Member
may recognize the education or experience obtained, requirements met, or
licenses or certifications granted in a particular country. Such recognition, which
may be achieved through harmonization or otherwise, may be based upon an
agreement with the country concerned or may be accorded autonomously.

Id.
40. The GATS domestic regulation provisions are comprehensively addressed infra at Part

III.B. 1.
41. GUIDE TO THE URUGUAY ROUND AGREEMENTS, supra note 9, at 171.
42. GATS, supra note 8, at art. XVI(1). "With respect to market access through the

modes of supply identified in Article I, each Member shall accord services and service suppliers
of any other Member treatment no less favorable than that provided for under the terms,
limitations and conditions agreed and specified in its Schedule." Id.

43. Id. at art. XVI(2)(a).
2. In sectors where market-access commitments are undertaken, the measures

which a Member shall not maintain or adopt either on the basis of a
regional subdivision or on the basis of its entire territory, unless otherwise
specified in its Schedule, are defined as:
(a) limitations on the number of service suppliers whether in the form of

numerical quotas, monopolies, exclusive service suppliers or the
requirements of an economic needs test;

Id.
44. Id. at art. XVI(2)(b) ("limitations on the total value of service transactions or assets in

the form of numerical quotas or the requirement of an economic needs test").
45. Id. at art. XVI(2)(d) ("limitations on the total number of natural persons that may be

employed in a particular service sector or that a service supplier may employ and who are
necessary for, and directly related to, the supply of a specific service in the form of numerical
quotas or the requirement of an economic needs test").

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The second undertaking placed upon scheduled services sectors is found
in the national treatment, or non-discrimination, obligation of Article XVII.4 6

Like the undertaking to provide MFN treatment, the GATS national treatment
provision enforces obligations similar to analogous GATT provisions. So while
it seems that the GATS is well on its way to injecting a measure of discipline
into services regulations with tried and true liberalizing concepts, these
undertakings are conditioned by the two other sources of GATS law: the
Members' Schedules of Specific Commitments and the lists of Article II
exemptions, both of which are addressed in the next section.

B. Derogating from the GATS: Schedules of Specific Commitments and
Article H Exemptions

Although "scheduled" services sectors are subject to the more rigorous
market access and national treatment obligations of the GATS, Member States
were free to choose which sectors would be submitted to this enhanced
discipline.47  During the initial Uruguay Round negotiations, forty-eight
Member States took the decision to submit their legal services sectors to the
obligations inherent in Part III of the GATS.48 Much of the sting of the market
access and national treatment obligations was nonetheless removed by the
content of Member States' schedules. Most of the Member States that included
legal services on their Schedules of Specific Commitments did so by listing

46. Id. at art. XVII.
1. In the sectors inscribed in its Schedule, and subject to any conditions and

qualifications set out therein, each Member shall accord to services and
service suppliers of any other Member, in respect of all measures affecting
the supply of services, treatment no less favorable than that it accords to its
own like services and service suppliers.

2. A Member may meet the requirement of paragraph 1 by according to
services and service suppliers of any other Member, either formally
identical treatment or formally different treatment to that it accords to its
own like services and service suppliers.

3. Formally identical or formally different treatment shall be considered to be
less favorable if it modifies the conditions of competition in favor of
services or service suppliers of the Member compared to like services or
service suppliers of any other Member.

Id.
47. However, because inclusion or exclusion of particular services sectors was the subject

of intense negotiations, some Member States scheduled services sectors that they might
otherwise have sought to protect in order to gain concessions in other sectors and under
different agreements. See, e.g., CONE, supra note 17, at § 2:6-7 (explaining how Japan was
persuaded to rejoin the GATS legal services negotiations in response to intense pressure by the
United States and the European Community).

48. GUIDE TO THE URUGUAY ROUND AGREEMENTS, supra note 9, at 199 (including twenty-
five developed countries, nineteen developing countries, and four transition economies). For
individual Member States' GATS Schedules, see WTO Services Database, at
http://tsdb.wto.org/wto/WTOHomepublic.htm (n.d.) (last visited Feb. 1, 2005).

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IND. INT'L & COMP. L. REv.

their current regulations. 49 The legal effect of listing current laws in a GATS
schedule is to effectively exempt those laws from the market access and
national treatment obligations. 50 A Member State may not, however, impose
regulations in a scheduled sector that are more onerous than the current
regulations listed in that Member's GATS schedule. 51  This means that
although few restrictions on trade in legal services were rolled back during the
Uruguay Round, future regulations adopted by scheduling Member States can
be no more restrictive than current regulations. 52 That is why the GATS is
sometimes said to impose "standstill" or "grandfathered" obligations on
Member States.

53

Another means by which Member States were given the opportunity
during the Uruguay Round to mitigate their obligations arising under the GATS
was to submit lists of sectoral exemptions from MFN treatment. 54 If a Member
State placed a particular sector on its list, it was no longer obligated to provide
MFN treatment in that sector. 55 Although the Article II exemptions lists must
be examined in determining the extent of Member States' obligations, very few

49. See Michael J. Chapman & Paul J. Tauber, Liberalizing International Trade in Legal
Services: A Proposal for an Annex on Legal Services under the General Agreement on Trade in
Services, 16 MICH. J. INT'L L. 941,967 (1995) (analyzing the submitted legal services schedules
of WTO Members and concluding that "in most cases, the commitments merely preserved
existing regulatory measures").

50. See GUIDE TO THE URUGUAY ROUND AGREEMENTS, supra note 9, at 171 ("Service
commitments resemble those in a GATT schedule at least in one very important respect: they are
bindings which set out the minimum, or worst permissible, treatment oftheforeign service or its
supplier.") (emphasis added).

51. CONE, supra note 17, at § 2:32 ("Article XVII will prevent the adoption of any
additional discriminatory measures that were not in effect on December 15, 1993, and not
expressly covered by a Schedule of Specific Commitments or MFN list in a GATS offer in
respect of legal services.").

52. Nevertheless, a Member State may have preserved its right to impose more restrictive
regulations in the future by noting in its schedule that a particular sector or mode of supply is
"unbound." For a detailed explanation of the terms used in scheduling commitments and the
legal effect of those terms, see Guide to Reading GATS Schedules, supra note 25 ("All
commitments in a schedule are bound unless otherwise specified. In such a case, where a
Member wishes to remain free in a given sector or mode of supply to introduce or maintain
measures inconsistent with market access or national treatment, the Member has entered in the
appropriate space the term UNBOUND.").

53. See, e.g., CONE, supra note 17, at § 2:31-32 (using the term "standstill" to describe
scheduled obligations); Terry, supra note 13, at 1005 (noting that the GATS "grandfathers in"
existing sets of regulations).

54. GATS, supra note 8, at Annex on Article II Exemptions.
55. Id. 1 ("This Annex specifies the conditions under which a Member, at the entry into

force of this Agreement, is exempted from its obligations under paragraph 1 of Article II.").

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LEGAL SERVICES TRADE LIBERALIZATION

states included legal services on their respective Article II exemptions list.56

Therefore, a fuller treatment of the issues surrounding these exemptions is
beyond the scope of this Article. 57

In summary, in order to determine a Member State's GATS undertakings
in respect of legal services, or any other services sector, one must look to three
sources of GATS obligations: (1) the unconditional commitments to which all
WTO Members are subject, mostly found in Part II of the GATS framework
agreement; (2) the commitments found in Member States' Schedules of
Specific Commitments to which the market access and national treatment
obligations of Part III apply; and (3) the MFN exemptions lists submitted
during the Uruguay Round negotiations, which excuse Members from granting
MFN treatment in specified services sectors.

As cumbersome as determining a Member State's GATS obligations is
under this three-step procedure, it is only the starting point for investigating the
true extent of how GATS may come to regulate legal services in the future.
Given the incomplete nature of the GATS regime,58 one must look to some of
the negotiations that occurred soon after the GATS came into effect and to
those that are currently ongoing in order to more fully comprehend how GATS
obligations may constrain legal services regulators. 59 These negotiations are the
focus of Part III.

III. DOMESTIC REGULATION AND THE WORKING PARTY ON PROFESSIONAL
SERVICES: A BRIEF HISTORY OF THE POST-GATS NEGOTIATIONS

A. Progressive Liberalization and the Two-Track Negotiations

Article XIX of the GATS, entitled "Negotiation of Specific
Commitments," provides for future liberalizing negotiations to begin no later
than five years after the coming into force of the GATS. 60 In accord with this

56. See CONE, supra note 17, at § 2:22 (listing GATS members that submitted MFN-
exemption lists in legal services, including: Brunei Darussalam, China (which was still
negotiating WTO membership at the time), Costa Rica, Cyprus, Dominican Republic, El
Salvador, Guatemala, Honduras, Jamaica, Malta, Singapore, Turkey, and Venezuela).

57. For a discussion of the unsettled issues surrounding MFN exemptions, see Terry,
supra note 13, at 1003-04.

58. See supra note 21 and accompanying text.
59. See Terry, supra note 13, at 1019 ("[O]ne must recognize that because GATS used a

legislative-delegation model, one cannot fully understand the obligations imposed by the GATS
until one examines the post-GATS developments.").

60. GATS, supra note 8, at art. XIX(I).
In pursuance of the objectives of this Agreement, Members shall enter into
successive rounds of negotiations, beginning not later than five years from the
date of entry into force of the WTO Agreement and periodically thereafter, with a
view to achieving a progressively higher level of liberalization. Such
negotiations shall be directed to the reduction or elimination of the adverse
effects on trade in services of measures as a means of providing effective market
access. This process shall take place with a view to promoting the interests of all

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IND. INT'L & COMP. L. REV.

mandate, on February 25, 2000, new services negotiations began. 6' These
negotiations were often referred to as the "GATS 2000 negotiations" 62 or the
"built-in agenda" negotiations.63 On November 14,2001, the WTO Ministerial
Conference meeting in Doha, Qatar, adopted the Fourth Ministerial
Declaration, which launched the current round of trade negotiations known as
the Doha Development Agenda (DDA).64 This "Doha Declaration" also
endorsed the work that had been done in the GATS 2000 negotiations and
subsumed its future work into the DDA negotiating framework.65 These
negotiations were scheduled to conclude no later than January 1, 2005,66 and

participants on a mutually advantageous basis and to securing an overall balance
of rights and obligations.

Id.
61. Press Release, WTO, Services Negotiations Formally Launched (Feb. 25, 2000), at

http://www.wto.org/english/newse/news00_e/servfe-e.htm (last visited Apr. 6, 2005).
62. See, e.g., Director General Renato Ruggiero, Towards GATS 2000 - A European

Strategy, Address to the Conference on Trade in Services, organized by the European
Commission (June 2, 1998), available at http://www.wto.org/english/newse/sprre/brussl
_e.htm (last visited Apr. 6, 2005).

63. See, e.g., Terry, supra note 13, at 1050 4.193 (employing the term and explaining its
meaning).

64. WTO Ministerial Conference, Ministerial Declaration, WT/MIN(01)/DEC/1 (Nov.
20, 2001), http://www.wto.org/english/thewtoe/minist-e/min0 le/mindecle.pdf (last visited
Apr. 6, 2005).

65. Id. T 15.
The negotiations on trade in services shall be conducted with a view to
promoting the economic growth of all trading partners and the development of
developing and least-developed countries. We recognize the work already
undertaken in the negotiations, initiated in January 2000 under Article XIX of the
General Agreement on Trade in Services, and the large number of proposals
submitted by Members on a wide range of sectors and several horizontal issues,
as well as on movement of natural persons. We reaffirm the Guidelines and
Procedures for the Negotiations adopted by the Council for Trade in Services on
28 March 2001 as the basis for continuing the negotiations, with a view to
achieving the objectives of the General Agreement on Trade in Services, as
stipulated in the Preamble, Article IV and Article XIX of that Agreement.

Id.
66. Id. 45 ("The negotiations to be pursued under the terms of this declaration shall be

concluded not later than 1 January 2005."). The Doha negotiations, including the so-called
"Track 1" GATS legal services negotiations, were temporarily abandoned in September 2003 at
the Fifth WTO Ministerial Conference in Cancin, Mexico. For more information on the
breakdown of the Cancim negotiations see Terry, Cancun Ministerial, supra note 14, at 38. The
WTO Member States resumed the Track 1 negotiations and the rest of the Doha Work
Programme pursuant to an August 1,2004 decision of the WTO General Council. The decision
did not set a revised deadline for conclusion of the services negotiations but did set a May 2005
deadline for the tabling of revised services offers. See WTO, Doha Work Programme Decision
Adopted by the General Council on 1 August 2004, WT/L/579, at 3 & Annex C (Aug. 2,2004).
However, the "Track 2" or "disciplines" negotiations continued despite the collapse of the
Track 1 negotiations at Cancfin. Laurel S. Terry, Lawyers, GA TS, and the WTO Accountancy
Disciplines: The History of the WTO's Consultation, the IBA GA TS Forum and the September
2003 IBA Resolutions, 22 PENN ST. INT'L L. REv. 695, 706 (2004) ("the WPDR continued its
work on the Disciplines issues even when other Doha negotiations had collapsed following the
September 2003 Ministerial Conference in Cancun, Mexico.").

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LEGAL SERVICES TRADE LIBERALIZATION

are the kind of "request-offer" negotiations that have become familiar over the
past fifty years within the GATT framework.67 There is, however, another
"track" of negotiations currently ongoing in Geneva that could more profoundly
affect the way that GATS regulates trade in legal services. 68 These are the
negotiations occurring in the Working Party on Domestic Regulation (WPDR),
which is considering the feasibility of developing horizontal disciplines on
domestic regulation. 69  Because of the importance of these "disciplines"
negotiations to the future regulation of trade in legal services they will be the
focus of the remainder of this section.

B. Article VI and the Accountancy Disciplines

In order to properly evaluate the proposals currently being advanced in
the WPDR with respect to horizontal and sector-specific disciplines, it is
necessary to become familiar with the GATS domestic regulation provisions
and with post-GATS developments in the accountancy sector.

1. Article VI Domestic Regulation

As used in the GATS, the term "domestic regulation" refers to any
generally applicable measure that may have the potential to adversely affect the
provision of trade in services for which a Member State has undertaken specific
obligations. 70 Article VI of the GATS provides that these measures shall be
administered in a "reasonable, objective and impartial manner." 7' More
specifically, Article VI requires Member States to maintain judicial or
administrative tribunals for review of decisions that affect trade in services. 72

67. See id. 15 ("Participants shall submit initial requests for specific commitments by 30
June 2002 and initial offers by 31 March 2003.").

68. Cf. Paul D. Paton, Legal Services and the GA TS: Norms as Barriers to Trade, 9 NEW
ENG. J. INT'L & COMp. L. 361,405-06 (2003) (analyzing Member State DDA proposals on legal
services and noting a "very limited ambition for meaningful liberalization of legal services").

69. IBA GATS HANDBOOK, supra note 13, at 3.
Currently there are two different sets of events ongoing in Geneva of which
member bars should be aware (and may want to participate). The first ongoing
activity is the development of horizontal disciplines on domestic regulation. The
second development is the new Doha Round of negotiations for further
liberalization of trade in services. Although there is some overlap between these
two 'tracks' or developments, they are different and Member Bars should be
aware of both.

Id.
70. GATS, supra note 8, at art. VI(I) ("In sectors where specific commitments are

undertaken, each Member shall ensure that all measures of general application affecting trade in
services are administered in a reasonable, objective and impartial manner."). Note, however,
that some provisions of Article VI, notably Article VI(2), see infra note 72, apply to all WTO
Members whether or not they have scheduled services in a particular sector.

71. Id. at art. VI(l).
72. Id. at art VI(2).

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IND. INT'L & COMP. L. REv.

The appropriate authorities are also obligated to promptly review any required
applications for the supply of services within a Member State's jurisdiction.73

These measures are likely to be very important for the regulation of trade in
legal services because they address the kinds of requirements that are often used
to restrict the practice of foreign legal practitioners, namely, licensing and
qualification rules.74

In order to ensure that these domestic regulation measures are given their
appropriate effect, Article VI also directs the Council for Trade in Services, or
one of its subsidiaries, to develop more specific "disciplines" to govern the
regulation of trade in services. 75 This provision has formed the basis of the

(a) Each Member shall maintain or institute as soon as practicable judicial,
arbitral or administrative tribunals or procedures which provide, at the
request of an affected service supplier, for the prompt review of, and where
justified, appropriate remedies for, administrative decisions affecting trade
in services. Where such procedures are not independent of the agency
entrusted with the administrative decision concerned, the Member shall
ensure that the procedures in fact provide for an objective and impartial
review.

(b) The provisions of subparagraph (a) shall not be construed to require a
Member to institute such tribunals or procedures where this would be
inconsistent with its constitutional structure or the nature of its legal
system.

Id.
73. Id. at art. VI(3).

Where authorization is required for the supply of a service on which a specific
commitment has been made, the competent authorities of a Member shall, within
a reasonable period of time after the submission of an application considered
complete under domestic laws and regulations, inform the applicant of the
decision concerning the application. At the request of the applicant, the
competent authorities of the Member shall provide, without undue delay,
information concerning the status of the application.

Id.
74. Terry, supra note 13, at 1002 ("Domestic regulation is also potentially significant to

legal services regulators because of its requirement that, for those including legal services on
their Schedules, regulatory measures, such as admission, licensing, and discipline measures, be
administered in a reasonable, objective, and impartial manner and that qualification
requirements be not more burdensome than necessary to ensure the quality of the service."); see
also Legal Services Background Note, supra note 3, IM 41, 47 (noting that "[q]ualification
requirements often represent an insurmountable barrier to trade in legal services" and that
"foreign legal consultants still face important regulatory barriers in particular with respect to
licensing requirements").

75. GATS, supra note 8, at art. VI(4).
With a view to ensuring that measures relating to qualification requirements and
procedures, technical standards and licensing requirements do not constitute
unnecessary barriers to trade in services, the Council for Trade in Services shall,
through appropriate bodies it may establish, develop any necessary disciplines.
Such disciplines shall aim to ensure that such requirements are, inter alia:
(a) based on objective and transparent criteria, such as competence and the

ability to supply the service;
(b) not more burdensome than necessary to ensure the quality of the service;

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LEGAL SERVICES TRADE LIBERALIZATION

"disciplines" track of the current negotiations as well as the backdrop for much
of the post-GATS progress towards liberalized markets in services.

2. The Working Party on Professional Services and the Accountancy
Disciplines

In addition to the direction found in Article VI, the impetus to develop
multilateral disciplines was provided by the Decision on Professional Services,
adopted by the Ministerial Conference as part of the Final Act Agreements.76

The Decision first directed the Council for Trade in Services to create a
Working Party on Professional Services (WPPS) to oversee the development of
the disciplines mandated by Article VI(4). 7 The Decision also directed the
newly constituted WPPS to begin its work by elaborating disciplines for the
accountancy sector.78 As part of this mandate, the WPPS was given the further
task of establishing guidelines for the recognition of qualifications. 79 The

(c) in the case of licensing procedures, not in themselves a restriction on the
supply of the service.

Id.
76. GATS, supra note 8.
77. Id. l.

The work programme foreseen in paragraph 4 of Article VI on Domestic
Regulation should be put into effect immediately. To this end, a Working Party
on Professional Services shall be established to examine and report, with
recommendations, on the disciplines necessary to ensure that measures relating to
the qualification requirements and procedures, technical standards and licensing
requirements in the field of professional services do not constitute unnecessary
barriers to trade.

Id.
78. Id. 2.

As a matter of priority, the Working Party shall make recommendations for the
elaboration of multilateral disciplines in the accountancy sector, so as to give
operational effect to specific commitments. In making these recommendations,
the Working Party shall concentrate on:
(a) developing multilateral disciplines relating to market access so as to ensure

that domestic regulatory requirements are (i) based on objective criteria,
such as competence and the ability to supply the service; (ii) not more
burdensome than necessary to ensure the quality of the service, thereby
facilitating the effective liberalization of accountancy services;

(b) the use of international standards and, in doing so, it shall encourage the
cooperation with the relevant international organizations as defined under
paragraph 5(b) of Article VI [referring to "international bodies whose
membership is open to the relevant bodies of at least all Members of the
WTO"], so as to give full effect to paragraph 5 of Article VII [relating to
adoption of common international standards].

Id.
79. Id. 2 ("facilitating the effective application of paragraph 6 of Article VI of the

Agreement [relating to the verification of professional competence] by establishing guidelines
for the recognition of qualifications"). The Council for Trade in Services adopted the
recognition guidelines developed by the WPPS on May 29, 1997. See Press Release, WTO,
WTO Adopts Guidelines for Recognition of Qualifications in the Accountancy Sector (May 29,
1997), available at http://www.wto.org/english/newse/pres97_e/pr73_e.htm (last visited Apr.

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IND. INT'L & COMP. L. REv.

Council for Trade in Services implemented the Decision on Professional
Services by adopting it verbatim at its first meeting on March 1, 1995.80

On December 4, 1998, almost four years after its creation and about one
and one half years after issuing its Guidelines for Mutual Recognition
Agreements or Arrangements in the Accountancy Sector,81 the WPPS
completed its work on multilateral disciplines for the accountancy sector.8 2 The
Council for Trade in Services wasted little time in approving the work of the
WPPS and ten days later, on December 14, 1998, adopted the disciplines as
submitted by the working party.83 Development oftheAccountancyDisciplines
was, however, to be the final achievement of the WPPS because on April 26,
1999, it was replaced by the WPDR.84 The WPDR has continued the work of
the WPPS, but its remit is wider, not being limited, as was the WPPS, to
developing disciplines only for the professional services sectors.85

Several reasons have been advanced for the decision to disband the
WPPS in favor of the WPDR. For instance, it has been suggested that the
move was prompted by the desire to allow for greater participation of smaller
countries that typically do not have the resources to engage in negotiations in
more than one forum.86 The view has also been expressed that the development
of disciplines should proceed on a horizontal rather than a sectoral basis, and
that the Accountancy Disciplines could provide a useful template for such an
endeavor.87 Whatever the motivation, given the wide definition of services

6, 2005); see also WTO Council for Trade in Services, Guidelines for Mutual Recognition
Agreements or Arrangements in the Accountancy Sector, S/L/38 (May 28, 1997). Although the
development of these Guidelines was an important step in the post-GATS negotiations, a
discussion of them is well beyond the scope of this Article. For an excellent treatment with
reference to the relevant WTO documents, see Terry, supra note 13, at 1027-29.

80. WTO Council for Trade in Services, Decision on Professional Services, S/L/3 (Apr. 4,
1995).

81. Seesupra note 79.
82. Working Party on Professional Services, Report to the Councilfor Trade in Services

on the Development of Disciplines on Domestic Regulation in the Accountancy Sector,
S/WPPS/4 (Dec. 10, 1998).

83. WTO Council for Trade in Services, Decision on Disciplines Relating to the
Accountancy Sector, S/L/63 (Dec. 15, 1998) [hereinafter Decision on Accountancy Disciplines];
see also Accountancy Disciplines, supra note 18.

84. See WTO Council for Trade in Services, Decision on Domestic Regulation, S/IL/70
(Apr. 28, 1999).

85. See id. 2.
In accordance with paragraph 4 of Article VI of the GATS, the Working Party
shall develop any necessary disciplines to ensure that measures relating to
licensing requirements and procedures, technical standards and qualification
requirements and procedures do not constitute unnecessary barriers to trade in
services. This shall also encompass the tasks assigned to the Working Party on
Professional Services, including the development of general disciplines for
professional services as required by paragraph 2 of the Decision on Disciplines
Relating to the Accountancy Sector (S/L/63).

Id.
86. See Terry, supra note 13, at 1038 n. 141 (reporting the views Bernard Ascher, Director

of Service Industry Affairs for the Office of the United States Trade Representative).
87. See Working Party on Professional Services, Note on the Meeting Held on 9 February

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LEGAL SERVICES TRADE LIBERALIZATION

adopted by the GATS,88 and the nearly four years that it took the WPPS to
develop the Guidelines for Mutual Recognition Agreements and the
Accountancy Disciplines,89 it simply might not be feasible to expect the WPDR
to develop multilateral disciplines on a sectoral basis.

Not surprisingly then, most of the discussion in the WPDR since its
creation has focused upon the feasibility of developing horizontal disciplines
that could apply to multiple, or perhaps all, services sectors.90  This
development has drawn the ire of many lawyers and bar leaders from around
the world.91  They seem particularly hostile to the suggestion that the
Accountancy Disciplines might formn the basis for multilateral disciplines to
govern trade in legal services.92 These criticisms and the key provisions of the
Accountancy Disciplines to which they refer are the focus of Part IV.

IV. THE DISCIPLINES ON DOMESTIC REGULATION IN THE ACCOUNTANCY
SECTOR: KEY PROVISIONS AND CRITICISMS

A. The Legal Effect and Scope of the Accountancy Disciplines

Before considering their substantive provisions,93 it is important to note
two preliminary issues regarding the Accountancy Disciplines, namely their
legal status within the GATS regime and the undertakings to which they apply.
The legal effect of the Accountancy Disciplines was first taken up in the

WPPS, which recommended that the Disciplines be implemented through a
decision of the Council for Trade in Services.94 Adopting the WPPS's
proposed Decision verbatim, 95 the Council for Trade in Services accepted the
Accountancy Disciplines as drafted by the WPPS, and made them applicable to
all Members that placed accountancy services on their Schedules of Specific
Commitments. 96 The full implementation of the Disciplines into the GATS

1999, S/WPPSiM/25 (Mar. 5, 1999) ("It was also the view of most speakers that work should
proceed on a horizontal rather than a sectoral basis, and that the accountancy disciplines would
provide a useful starting point for such work.").

88. See supra note 29 and accompanying text.
89. The WPPS was created on March 1, 1995, and the Accountancy Disciplines were

adopted by the Council for Trade in Services on December 14, 1998. See supra notes 80-83 and
accompanying text.

90. See Terry, supra note 13, at 1041 (citing minutes of WPDR meetings).
91. See infra Part IV.B.
92. See infra note 102 and accompanying text.
93. See infra notes 107-127 and accompanying text.
94. See Working Party on Professional Services, supra note 82, 6. "Members

extensively discussed the question of potential legal forms for adoption of the accountancy
disciplines. The outcome of the discussions is the attached draft Council Decision (Job No.
6481/Rev.1), which the WPPS now recommends for adoption." Id.

95. Compare id. 2 with Decision on Accountancy Disciplines, supra note 83.
96. Decision on Accountancy Disciplines, supra note 83, 1. "The Council for Trade in

Services ... Decides as follows, to adopt the text of the Disciplines on Domestic Regulation in

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IND. INT'L & COMP. L. REV.

was, nevertheless, delayed until completion of the current round of services
negotiations.97 Instead, the Council's Decision created an immediate standstill
effect, which continues to prohibit Member States from adopting domestic
regulations that are inconsistent with the Disciplines.98

Despite the broad language of this standstill paragraph, the Accountancy
Disciplines were not intended to govern all Member State obligations under the
GATS. The first paragraph of the Disciplines expressly states that theses
measures only apply to "domestic regulations" and not to the market access and
national treatment limitations enshrined in Members States' schedules.99 While
the distinction between domestic regulations and market access and national
treatment obligations might be easy enough to state in the abstract, categorizing
a regulation in a particular case may be exceedingly difficult.'0 0

the Accountancy Sector contained in document S/WPPS/W/21. These disciplines are to be
applicable to Members who have entered specific commitments on accountancy in their
schedules." Id.

97. Id. 2 ("No later than the conclusion of the forthcoming round of services
negotiations, the disciplines developed by the WPPS are intended to be integrated into the
General Agreement on Trade in Services (GATS).").

98. Id. 3 ("Commencing immediately and continuing until the formal integration of
these disciplines into the GATS, Members shall, to the fullest extent consistent with their
existing legislation, not take measures which would be inconsistent with these disciplines.").

99. Accountancy Disciplines, supra note 18, 1.
The purpose of these disciplines is to facilitate trade in accountancy services by
ensuring that domestic regulations affecting trade in accountancy services meet
the requirements of Article VI:4 of the GATS. The disciplines therefore do not
address measures subject to scheduling under Articles XVI and XVII of the
GATS, which restrict access to the domestic market or limit the application of
national treatment to foreign suppliers. Such measures are addressed in the
GATS through the negotiation and scheduling of specific commitments.

Id. Accord Working Party on Professional Services, Discussion of Matters Relating to Articles
XVI and XVII of the GA TS in Connection with the Disciplines on Domestic Regulation in the
Accountancy Sector: Informal Note by the Chairman (Job No. 6496), attached to S/WPPS/4
(Nov. 25, 1998) 2 [hereinafter Chairman's Note].

In the course of work to develop multilateral disciplines on domestic regulation
in the accountancy sector, pursuant to paragraph 4 of Article VI of the GATS, the
WPPS addressed a wide range of regulatory measures which have an impact on
trade in accountancy services. In discussing the structure and content of the new
disciplines, it became clear that some of these measures were subject to other
legal provisions in the GATS, most notably Articles XVI and XVII. It was
observed that the new disciplines developed under Article VI.'4 must not overlap
with other provisions already existing in the GA TS, including Articles XVI and
XVII, as this would create legal uncertainty. For this reason, a number of the
suggestions for disciplines were excluded from the text.

Id. (emphasis added).
100. This much was recognized, and a justification for the distinction given, in Chairman's

Note, supra note 99, 3:
Although it was not in the mandate of the WPPS to provide an interpretation of
GATS provisions, the important relationship between the new disciplines and
Articles XVI and XVII was noted. While these two Articles relate to the
scheduling of specific commitments on measures falling within their scope, the
disciplines developed under Article VI:4 aim at ensuring that other types of
regulatory measures do not create unnecessary barriers to trade. It has been

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LEGAL SERVICES TRADE LIBERALIZATION

In fact, this overlap could serve to narrow the scope of the Accountancy
Disciplines even further by allowing a Member State to make a colorable
argument that what appears to be a domestic regulation provision is really a

market access or national treatment limitation that it can maintain pursuant to
the terms of its schedule. Much of this confusion perhaps arises from the
uncertain parameters of the term "domestic regulation." Through GATT
practice, Member States have a pretty good idea of the meaning of "market
access" and "national treatment." Adding flesh to the bones of the "domestic
regulation" concept may similarly have to await further GATS practice and

interpretation of the term in the adjudicative bodies of the WTO.

B. The Accountancy Disciplines and Their Critics

As previously noted, since its inception, much of the work of the WPDR
has focused on the feasibility of using the Accountancy Disciplines as a model
for developing horizontal disciplines that could apply to all services sectors. 10'

Many bar leaders have criticized this development, and some have expressed
their dismay in position papers that catalogue misgivings about the
appropriateness of applying the Disciplines to trade in legal services.' 0 2 Three

noted that Article XVI (Market Access) covers the categories of measures

referred to in paragraph 2 (a) to (f), whether or not any discrimination is made in

their application between domestic and foreign suppliers. Article XVII (National
Treatment) captures within its scope any measure that discriminates-whether de

jure or defacto-against foreign services or service suppliers in favour of like
services or service suppliers of national origin. A Member scheduling
commitments under Articles XVI and XVII has the right to maintain limitations
on market access and national treatment and inscribe them in its schedule. On

the other hand, the disciplines to be developed under Article VI:4 cover domestic
regulatory measures which are not regarded as market access limitations as such,

and which do not in principle discriminate against foreign suppliers. They are

therefore not subject to scheduling under Articles XVI and XVII. However, it is

also recognized that for some categories of measures the determination as to

whether an individual measure falls under Article VI:4 disciplines or is subject

to scheduling under Article XVII will require careful consideration.
Id. (emphasis added). But see Terry, supra note 13, at 1073 (questioning whether a Member

State could continue to rely on market access and national treatment standstill provisions in its

Schedule of Specific Commitments if sectoral disciplines are adopted).
101. See supra note 90 and accompanying text.
102. See, e.g., CAN. BAR ASs'N, SUBMISSION ON: THE GENERAL AGREEMENT ON TRADE IN

SERVICES AND THE LEGAL PROFESSION: THE ACCOUNTANCY DISCIPLINES AS A MODEL FOR THE

LEGAL PROFESSION (Aug. 2000), http://www.cba.org/cba/submissions/pdf/00-30-eng.pdf (last

visited Apr. 6, 2005) [hereinafter CBA GATS Submission]; COUNCIL OF THE BARS & LAW

SOCIETIES OF THE EUROPEAN UNION, CCBE RESPONSE TO THE WTO CONCERNING THE

APPLICABILITY OF THE ACCOUNTANCY DISCIPLINES TO THE LEGAL PROFESSION (May 2003),

http://www.ccbe.org/doc/En/ccbejresponse_080503_en.pdf (last visited Apr. 6, 2005)

[hereinafter CCBE Response]; FED'N OF LAW SOCIETIES OF CAN., MEETING CANADA'S CURRENT

OBLIGATIONS FOR THE LEGAL PROFESSION UNDER THE GENERAL AGREEMENT ON TRADE IN

SERVICES (GATS) OF THE WORLD TRADE ORGANIZATION (WTO) (Feb. 24, 2001),

http://www.flsc.ca/en/documents/2001wtoreport.doc (last visited Apr. 6, 2005) [hereinafter
Meeting Canada's Current Obligations].

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IND. INT'L & COMP. L. REv.

organizations in particular have been very active in expressing their concerns
and encouraging their members to become involved in the GATS
negotiations. 10 3 They include the Canadian Bar Association (CBA), °

04 the
Federation of Law Societies of Canada (FLSC), 10 5 and the Council of the Bars
and Law Societies of the European Union (CCBE). 0 6 Their criticisms provide
a measure of where compromise might be possible, and they also suggest the
difficulty that lies ahead in reaching a consensus on appropriate disciplines for
the legal services sector.

The provisions of the Disciplines that deal with the procedural aspects of
licensing have been relatively uncontroversial. 107 These provisions have raised
few concerns among bar associations largely because the prescribed practices
are already followed by many licensing authorities. 0 8 Other provisions that fall
into this category include Article V (Licensing Procedures) 1°9 and Article VII

103. For a discussion of the failure of the U.S. legal community to take such an interest, see
Terry, Why You Should Care, supra note 14, at 67.

104. "The Canadian Bar Association is a professional, voluntary organization which was
formed in 1896, and incorporated by a Special Act of Parliament on April 15, 1921. Today, the
Association represents some 38,000 lawyers, judges, notaries, law teachers, and law students
from across Canada. Approximately two-thirds of all practising lawyers in Canada belong to the
CBA." Can. Bar Ass'n, About the CBA, at http://www.cba.org/CBA/about/main/ (last visited
Feb. 12, 2005).

105. "The Federation of Law Societies of Canada is the umbrella organization of the
fourteen Law Societies in Canada. Each law society governs the legal profession within their
respective province or territory." Fed'n of Law Societies of Can., A WordFrom the President,
at http://www.flsc.ca/en/about/president.asp (last visited Feb. 12, 2005).

106. "The CCBE liaises between the Bars and Law Societies from the Member States of the
European Union and the European Economic Area. It represents all such Bars and Law
Societies before the European institutions, and through them some 500,000 European lawyers."
Comm'n Consultative des Barreaux Europ6ens, What is the CCBE?, at http://www.ccbe.org/en/
ccbe/ccbe en.htm (last visited Apr. 6, 2005). CCBE is the acronym for the Commission
Consultative des Barreaux Europ6ens, which, although later named the Council of the Bars and
Law Societies of the European Community, was still known colloquially as the CCBE. CONE,
supra note 17, at § 2:6.

107. See, e.g., Accountancy Disciplines, supra note 18, 3 (on transparency). "Members
shall make publicly available, including through the enquiry and contact points established
under Articles III and IV of the GATS, the names and addresses of competent authorities (i.e.,
governmental or non-governmental entities responsible for the licensing of professionals or
firms, or accounting regulations)." Id.

108. See, e.g., Meeting Canada's Current Obligations, supra note 102, at 13. "Canadian
Law Societies already comply with Discipline 3 as they do make publicly available the names
and addresses of competent authorities who license and regulate lawyers within Canada. Such
information can be obtained directly from the respective Law Society or from the Federation of
Law Societies of Canada." Id.

109. See, e.g., Accountancy Disciplines, supra note 18, 15.
Application procedures and the related documentation shall not be more
burdensome than necessary to ensure that applicants fulfill qualification and
licensing requirements. For example, competent authorities shall not require
more documents than are strictly necessary for the purpose of licensing, and shall
not impose unreasonable requirements regarding the format of documentation.
Where minor errors are made in the completion of applications, applicants shall

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LEGAL SERVICES TRADE LIBERALIZATION

(Qualification Procedures)." l0 Nevertheless, several other provisions have
raised alarm among bar leaders.

The first discipline that has been singled out as raising some concern is
found in Article H (General Provisions), which provides:

Members shall ensure that measures not subject to scheduling
under Articles XVI or XVII of the GATS, relating to licensing
requirements and procedures, technical standards and
qualification requirements and procedures are not prepared,
adopted or applied with a view to or with the effect of creating
unnecessary barriers to trade in accountancy services. For this
purpose, MEMBERS SHALL ENSURE THAT MEASURES ARE NOT

MORE TRADE-RESTRICTIVE THAN NECESSARY TO FULFIL A

LEGITIMATE OBJECTIVE. Legitimate objectives are, INTER ALIA,

the protection of consumers (which includes all users of
accounting services and the public generally), the quality of
the service, professional competence, and the integrity of the
profession. 1 "

The principal criticisms of this discipline focus on use of the terms
"necessary" and "legitimate objective." The CBA, in particular, is concerned
that the WTO adjudicative bodies would rely on the WTO's interpretation of
the word "necessary" under Article XX of the GATT in construing the
obligation imposed on Member States in this discipline. i 1

2 The CBA reads this
Article XX jurisprudence as requiring a Member State to establish that there
"were no alternative measure[s] consistent with the General Agreement, or less
inconsistent with it" in order to maintain a challenged regulation.! 3 Moreover,
it worried because, "[i]n the dozen or so cases which have been decided under
Article XX, a member state's measure has never been upheld on grounds of
'necessity'. '' 

14 Interpretive discretion also motivates the CBA's concern over
the notion of "legitimate objective." It opined: "Although the Article lists

be given the opportunity to correct them. The establishment of the authenticity
of documents shall be sought through the least burdensome procedure and,
wherever possible, authenticated copies should be accepted in place of original
documents.

Id.
110. See, e.g., id. 22 ("Verification of an applicant's qualifications acquired in the

territory of another Member shall take place within a reasonable time-frame, in principle within
six months and, where applicants' qualifications fall short of requirements, shall result in a
decision which identifies additional qualifications, if any, to be acquired by the applicant."); see
also CBA GATS Submission, supra note 102, at 7-8 (describing Article V (Licensing
Procedures) and Article VII (Qualification Procedures) as "provisions which do not raise
concerns").

111. Accountancy Disciplines, supra note 18, 2 (emphasis added).
112. CBA GATS Submission, supra note 102, at 9-10.
113. Id. at 9. (quoting Thailand - Restrictions on Importation of and Internal Taxes on

Cigarettes, Nov. 7, 1990, GATT B.I.S.D. (37th Supp.) at 223, 75 (1990)).
114. Id.

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IND. INT'L & COMP. L. REv.

examples of legitimate objectives ... we remain concerned -that 'legitimate
objective' can be interpreted broadly or narrowly by a dispute panel. More
clarification is required to ensure the profession's self-regulating bodies retain a
sufficient level of discretion."'' 5

From the perspective of legal regulators perhaps the most nettlesome
provision of the Accountancy Disciplines is found in Article VI (Qualification
Requirements), which states in relevant part: 19. A Member shall ensure that
its competent authorities take account of qualifications acquired in the territory
of another Member, on the basis of equivalency of education, experience and/or
examination requirements.

19. The scope of examinations and of any other qualification
requirements shall be limited to subjects relevant to the
activities for which authorization is sought. Qualification
requirements may include education, examinations, practical
training, experience and language skills. "16

The reason that these two provisions have raised concern lies in the
jurisdiction-specific nature of legal rules. For example, with respect to
paragraph 19, the CBA believes that "[i]t is unlikely that foreign qualifications
will be of great relevance to the practice of law in Canada. This is particularly
true of those who intend to practice host-country law or represent clients before
courts and tribunals." ' 1 7 This conviction has led the CBA to conclude that
"[t]his provision.., is out of place in the context of disciplines for the legal
profession."' 18 The CCBE, in contrast, has taken a more nuanced position with
respect to paragraph 19, owing to its "experience... in relation to qualification
requirements."" 9  While it concluded that paragraph 19 is generally
acceptable, 20 it nonetheless cautioned that an EC-style approach to recognition

115. Id. at 10. But see Terry, supra note 13, at 1031, noting:
In my view, one of the concrete accomplishments of the Disciplines is that it
provides a definition of what constitutes a "legitimate objective." While some
may disagree with this definition, the fact that a definition exists makes it more
likely that countries will be using the same standards to explain their
disagreements, even if they apply those standards differently.

Id.
116. Accountancy Disciplines, supra note 18, 19-20.
117. CBA GATS Submission, supra note 102, at 14.
118. Id.
119. CCBE Response, supra note 102, at 7 (referring to language in paragraphs 19 and 20

that reflects provisions in the European Community's own "Diplomas Directive"). See
generally Council Directive 89/48/EEC, 1989 O.J. (L 19) 16 (Council Directive of December
21, 1988 on General System for the Recognition of Higher Education Diplomas).

120. CCBE Response, supra note 102, at 8 ("Paragraph 19, with its general duty to take
account of foreign qualifications, should be deemed acceptable, and in any case it is unlikely
that the WTO would ever consider it fair to have it excluded for lawyers.").

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LEGAL SERVICES TRADE LIBERALIZATION

of qualifications is inappropriate given the diversity of educational and
professional qualifications required of the world's legal professionals. ' 2'

The principal objection to paragraph 20, which deals with the scope of
qualification requirements, is that many legal professions are not divisible into
specific areas of practice. The CBA noted:

Law societies in Canada and the governing bodies in many
foreign jurisdictions qualify lawyers "at large" to practise in
any field .... The "activity for which authorization is sought"
is therefore to be a full member of the bar, not to be a business
lawyer or a criminal lawyer or a labour relations lawyer.
Indeed, this makes a good deal of sense, as there is a good deal
of cross-pollination between areas of the law. 122

Thus, once again, the CBA concluded that, "[i]n the context of the legal
profession, this provision is not appropriate."' ' 23

121. Id.
The second comment is that the EU is accustomed to the notion of taking into
account prior qualifications obtained in another EU Member State. The exercise
is based on the assumption that lawyers qualify in similar ways, to a similar
standard and with the same range of activities in all Member States. It may be
safe to make that assumption in the EU, but it is a much more difficult
assumption to make when the whole world is involved. In the EU, as a result,
there is no trawling through the specific qualifications, subjects, university
attended and results obtained from elsewhere in the EU, because of the
underlying common assumption. If that were to be extended around the world, it
would involve the bars and law societies in one of two options. Either, they
would have to make the same common assumption that is made in the EU about
the qualifications brought to them across borders. That is doubtless an unsafe
assumption to make about the whole world. Or, they would have to establish a
system whereby they could recognize each degree, each title, each university
from each country. That is a very time-consuming and resource-rich exercise.

Id.
122. CBA GATS Submission, supra note 102, at 14; accord CCBE Response, supra note

102, at 7.
The first comment is to stress that the phrase "limited to subjects relevant to the
activities for which authorization is sought" is capable of meaning only one thing
in the legal profession. It is not believed that anywhere in the world are foreign
lawyers able to acquire a host qualification or title (as opposed to an ability to
practise under home title) which is limited to a particular area. In other words, if
a lawyer is going to requalify and acquire the host title, it is the whole of the host
title of lawyer which is acquired on requalification, enabling the foreign lawyer
to carry out all the activities of the host lawyer. There is no alternative, lesser
activity which can be obtained.

Id.
123. CBA GATS Submission, supra note 102, at 14; accord CCBE Response, supra note

102, at 8 ("paragraph 20 sets an impractical standard for bars and law societies, and should be
deleted").

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IND. INT'L & COMP. L. REv.

Lastly, some bar associations have expressed their desire to modify the
provisions in Article VIII (Technical Standards). This Article provides:

25. Members shall ensure that measures relating to technical
standards are prepared, adopted and applied only to fulfil
legitimate objectives.

26. In determining whether a measure is in conformity with
the obligations under paragraph 2, account shall be taken of
internationally recognized standards of relevant international
organizations applied by that Member. 24

The bar associations' difficulty with these provisions is part definitional.
As the CCBE has noted, "the phrase 'technical standards' is the wrong one to
apply to the legal profession. What lawyers have are ethical rules, competency
requirements, and qualification requirements.' ' 125 The CBA, however, further
remonstrated against this provision by contending that standards of ethics and
professional conduct "should not be subject to third-party review to determine
whether they fulfil 'legitimate objectives,"' and that "given the jurisdiction-
specific nature of laws and legal systems, there are no internationally
recognized standards of relevant international organizations with respect to the
practise of law."' 26

The three objections to the Accountancy Disciplines highlighted above,
namely, those relating to the general scheme of the Disciplines, those relating to
the provisions on qualifications requirements, and to those that might
potentially regulate ethical standards and professional competence, are by no
means the only criticisms that have been lodged.127 They have been chosen for
discussion, however, because they are the most prominent, and also because
they represent areas of disagreement where the potential for compromise might
be greatest. In fact, more significant than any particular objection to the
Accountancy Disciplines is the manner in which those objections have been
expressed. Specifically, bar associations have used the language of "core
values" to express their concerns about the Disciplines. The consequences of
this particular form of expression are addressed in Part V.

124. Accountancy Disciplines, supra note 18, at In 25-26.
125. CCBE Response, supra note 102, at 9.
126. CBA GATS Submission, supra note 102, at 15.
127. See, e.g., CBA GATS Submission, supra note 102, at 11-14 (detailing the CBA's

objections to the Accountancy Disciplines' limits on Member States' use of residency
requirements, membership in professional organizations, and restrictions on use of firm names
to circumscribe foreign lawyers' rights of practice).

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V. THE ACCOUNTANCY DISCIPLINES AND THE LANGUAGE OF CORE

VALUES: EVALUATING THE CRITICISMS OF NATIONAL BAR ASSOCIATIONS

There are at least two means by which the criticisms of national bar
associations may be evaluated. First, they may be evaluated on their own
terms; that is, one might inquire whether the bar associations' concerns are
reasonable in light of WTO practice, national regulatory interests, and other
factors that influence the regulation of trade in legal services. Second, one
might ask whether the language employed by some national bar associations
and their general approach to the domestic regulation negotiations serves to
foster compromise, or whether their positions instead stifle meaningful debate.
Both of these methods are employed below to assess the bar associations'
critiques.

A. Do the Bar Association Critiques of the Accountancy Disciplines Reflect
Legitimate Concerns?

The intent of this subsection is not to question the good-faith concerns
that national bar associations possess with regard to the Accountancy
Disciplines or to suggest that there is a "right" solution to any of these very
difficult issues. Rather, it is intended to show that there is more room for
compromise on most of the bar associations' specific concerns than is evident at
first blush. For example, the CBA and the CCBE have raised concerns about
the interpretation of the word "necessary" in the context of GATT Article
XX.128 They worry that interpretation of the term "necessary" in the
Accountancy Disciplines129 will require a regulatory measure to be the "least
trade restrictive" available to national authorities. This concern may ultimately
be borne out, but it ignores the Appellate Body's recent Article XX
jurisprudence and the more nuanced approach that it has employed in
interpreting the term "necessary.' 30 In KOREA -BEEF,' the Appellate Body
stated:

We believe that, as used in the context of Article XX(d), the
reach of the word "necessary" is not limited to that which is

128. See supra notes 112-115 and accompanying text.
129. See Accountancy Disciplines, supra note 18, at 2 ("Members shall ensure that

measures... are not prepared, adopted or applied with a view to or with the effect of creating
unnecessary barriers to trade in accountancy services.").

130. See CCBE Response, supra note 102, at 4-5. The CCBE position, which is essentially
the same as that of the CBA, is assailable on these grounds because it was not released until
May 2003, well after the cases considered below. See infra notes 131-32 and accompanying
text. However, this omission can be excused in the case of the CBA GATS Submission given
that it was released in August 2000, before the most recent Appellate Body cases on Article XX
were decided.

131. WTO Appellate Body Report, Korea- Measures Affecting Imports of Fresh, Chilled
and Frozen Beef, WT/DS161/AB/R & WT/DS169/AB/R (Dec. 11, 2000).

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IND. INT'L & COMP. L. REv.

"indispensable" or "of absolute necessity" or "inevitable."
Measures which are indispensable or of absolute necessity or
inevitable to secure compliance certainly fulfil the
requirements of Article XX(d). But other measures, too, may
fall within the ambit of this exception. As used in Article
XX(d), the term "necessary" refers, in our view, to a range of
degrees of necessity. At one end of this continuum lies
"necessary" understood as "indispensable"; at the other end, is
"necessary" taken to mean "making a contribution to.' 132

The point here is not that the bar associations' critiques are wide of the mark,
but simply that there is another perspective from which to view these issues,
and which may provide the "wiggle room" necessary to successfully complete
the disciplines track negotiations.

The bar associations' position with respect to the disciplines on
qualification requirements also admits of some room for negotiation. For
example, the CBA has declared the discipline requiring governing bodies to
"take into account ... qualifications acquired in the territory of another"'133

inappropriate in the context of legal services. 134 This position, however, fails to
account for the fact that Canada's law societies already take foreign
qualifications into account in licensing foreign legal consultants. 135 As if to
recognize that there is room for compromise on this issue, the CBA eventually
concedes that "so long as it [is] clear [that] member states are merely required
to 'take into account' foreign qualifications, this provision may not be overly
problematic.' ' 136 Likewise, the CBA's and CCBE's insistence on the full
qualification of foreign lawyers 37 ignores the experience with foreign legal
consultant rules over the past thirty years, virtually all of which permit practice
in certain areas of the law while restricting it in others. 38

Lastly, the bar associations' critique of the "technical standards"
discipline bears some attention. The Federation of Law Societies of Canada
has stated as apparent fact:

132. Id. 161; see also European Communities - Measures Affecting Asbestos and
Asbestos-Containing Products, WT/DS 135/AB/R (Mar. 12, 2001) (applying its Korea - Beef
analysis to the interpretation of Article XX(b), the Appellate Body upheld a French import ban
on chrysotile asbestos products as "necessary to protect.., human life or health").

133. Accountancy Disciplines, supra note 18, 19.
134. See supra note 118 and accompanying text.
135. See Meeting Canada's Current Obligations, supra note 102, at 18 ("Foreign Legal

Consultants are licensed on the basis of their foreign credentials and their membership in good
standing of a law society or bar association of another country.").

136. CBA GATS Submission, supra note 102, at 14.
137. See supra note 122 and accompanying text.
138. See infra Part VI.B (discussing the ABA Model Rule for the Licensing of Legal

Consultants).

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LEGAL SERVICES TRADE LIBERALIZATION

There are no recognized relevant international organizations
which set out internationally recognized standards for the legal
profession, or recognized rules of professional conduct and
standards of professional competence.... [T]his is in part a
result of the differing underlying legal systems. . . . This
Discipline is therefore of no application to the legal services
sector. 139

As the CCBE has recognized, such a position ignores "the CCBE's Code
of Conduct for cross-border transactions in Europe, the IBA's Code of
Conduct, plus doubtless [sic] other standards of international bodies dealing
with single issues of arbitration or insolvency."' 140 By raising the profile of
these international efforts and by demonstrating to national regulators how
these multilateral codes could help ensure the competence and professionalism
of international legal practitioners, it might be possible to reach some common
ground on this discipline as well.

As stated above, the point here is not to suggest that the bar associations
are "wrong" in their criticisms of the Accountancy Disciplines from a normative
standpoint. From a policy perspective, it is clear that the bar associations have
expressed legitimate concerns and that reasonable people could disagree about
the kinds of regulations that might best govern the international trade in legal
services. In fact, given that the Accountancy Disciplines are once again the
subject of negotiations in the WPDR it is entirely proper that there exists
competing visions of how best to implement them in the various services
sectors. Such a development will allow for the necessary "give and take" that
may ultimately result in an appropriate accommodation.

B. Do the Accountancy Disciplines Undermine the Core Values of the Legal
Profession?

The differences of opinion on specific provisions of the Accountancy
Disciplines are not, however, the whole story. The bar associations have also
suggested more broadly that the Disciplines fail to respect the "core values" of
the legal profession. Whereas the differences of opinion noted in the previous

139. Meeting Canada's Current Obligations, supra note 102, at 20; see also CBA GATS
Submission, supra note 102, at 15 ("[G]iven the jurisdiction-specific nature of laws and legal
systems, there are no internationally recognized standards of relevant international organizations
with respect to the practise of law.").

140. CCBE Response, supra note 102, at 9. For a comprehensive discussion of the CCBE
Code of Conduct, see Laurel S. Terry, An Introduction to the European Community's Legal
Ethics Code Part I: An Analysis of the CCBE Code of Conduct, 7 GEO. J. LEGAL ETHIcs 1
(1993); Laurel S. Terry, An Introduction to the European Community's Legal Ethics Code Part
II: Applying the CCBE Code of Conduct, 7 GEO. J. LEGAL ETHICS 345 (1993). For an argument
that the CCBE Code of Conduct could provide a model for a worldwide ethics code, see John
Toulmin Q.C., A Worldwide Common Code of Professional Ethics?, 15 FORDHAM INT'L L.J.
673 (1991-92).

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IND. INT'L & COMP. L. REv.

section might serve to propel the negotiations forward, the differences of
opinion that are seen to stem from "core values" are destructive of consensus
and could undermine the disciplines track negotiations.

1. The Criticisms of National Bar Associations and the Language of
"Core Values"

In cataloging the unique features of the legal profession that render the
Accountancy Disciplines inappropriate for application to the legal services
sector, the CCBE began by noting:

The general feeling of lawyers is that the core values and
specific characteristics of the profession are not taken into
account in the present DISCIPLINES. Although there may be

debate over what exactly the core values are, most lawyers
around the world agree that they include the following:
independence, confidentiality, and the avoidance of conflict of
interest. 141

To the "core values" recognized by the European Bar, the Canadian Bar
has added competence, 142 self-regulation, 143 the duty of undivided loyalty,' 44

and the solicitor-client privilege. 45 Further, the CBA has asserted that these

141. CCBE Response, supra note 102, at 3; accord Meeting Canada's Current Obligations,
supra note 102, at 6, -11 (suggesting that, "as currently drafted, the Disciplines are an inadequate
expression of the culture and values inherent in the legal profession," and identifying the
"unique values" of the legal profession as including independence, self-governance, client
confidentiality, and conflict of interest).

142. CBA GATS Submission, supra note 102, at 3 ("[T]he public interest requires lawyers
to be subject to standards of competence and professional conduct and demands an objective
regulatory structure to ensure lawyers observe these standards.").

143. Id. at 4 ("To ensure independence from state interference, the legal profession must be
self-regulating.").

144. Id. at 5 ("Canadian lawyers owe a duty of undivided loyalty to their clients and do not
serve, as do some professions, as instruments of the state's control or supervision of its
citizens....").

145. Id. ("[E]xcept in the rarest of circumstances, the legal doctrine of solicitor-client
privilege prevents third parties, including government authorities, from forcing the lawyer to
reveal these confidential communications."); see also ABA Core Values Resolution, supra note
16.

RESOLVED, that each jurisdiction is urged to revise its law governing lawyers
to implement the following principles and preserve the core values of the legal
profession:

1. It is in the public interest to preserve the core values of the legal
profession, among which are:

a. the lawyer's duty of undivided loyalty to the client;
b. the lawyer's duty competently to exercise independent legal

judgment for the benefit of the client;
c. the lawyer's duty to hold client confidences inviolate;

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LEGAL SERVICES TRADE LIBERALIZATION

values "do not simply derive from a set of rules laid down by a professional
body. Rather, they are centuries-old principles which have developed to ensure
the proper functioning of the legal system.'1 46

The lawyer's role in society is also cited as a distinguishing characteristic
of the legal profession. The CBA notes that "[t]he legal profession has unique
characteristics arising from its role as intermediary between the citizen and the
law and between the citizen and the state.' 47 In fact, the CBA believes that
"the unique role of lawyers makes the obligations of the legal professional more
of a social imperative."'' 48 This position has led it to conclude, in rather
grandiose language, that legal services "should not be covered by a common
generic set of professional disciplines, as this would threaten a centralpillar in
the kind of society Canadians have been striving to create and improve."' 49

Moreover, the value choices inherent in the jurisdiction-specific nature of
legal rules are often advanced as another reason why horizontal disciplines may
not be suitable for the legal profession:

The education, practical training and other qualifications of a
lawyer relate, to a substantial extent, to a particular national
legal system. Thus, unlike medicine or engineering, where the
applicable principles are exactly the same from one country to
another, or accounting, where the rules tend to vary somewhat
in their details but are readily subject to reconciliation in
accordance with common principles, law is highly variable
from one jurisdiction to the next and, AS AN EXPRESSION OF

THE MORES AND MUTUAL EXPECTATIONS OF THE CITIZENS, IS
SIGNIFICANTLY CULTURAL IN ITS CONTENT. 1

50

It might be tempting to dismiss these statements as merely hortatory
language that is unlikely to have much effect on the current negotiations in the
WPDR. But another way to look at them is as an assertion of regulatory
independence; a shot across the bow in answer to the central question of these

d. the lawyer's duty to avoid conflicts of interest with the
client; and

e. the lawyer's duty to help maintain a single profession of law
with responsibilities as a representative of clients, an officer
of the legal system, and a public citizen having special
responsibility for the quality ofjustice.

f. the lawyer's duty to promote access to justice.
Id.

146. CBA GATS Submission, supra note 102, at 5 (emphasis added).
147. Id. at 1.
148. Id. at 5 (emphasis added).
149. Id. at 3 (emphasis added).
150. INT'L BAR ASS'N, STANDARDS AND CRITERIA FOR RECOGNITION OF THE PROFESSIONAL

QUALIFICATIONS OF LAwYERS 3 (June 2001), http://www.ibanet.org/images/downloads/Standards
%20and%20Criteria%20for%2Recgnitin%2Oo'/o20Qualifications%20of/o20Lawyers%202
001.pdf (last visited Apr. 6, 2005).

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IND. INT'L & COMP. L. REv.

negotiations: is law a business or a profession?' 5 ' The terms that bar
associations have used to express their positions could thus have a real impact
on the disciplines negotiations.

2. The Consequences of Reliance on "Core Values"

The principal danger in the bar associations' reliance on the core values
of the legal profession to oppose some aspects of the WPDR negotiations is that
such language will be used to foreclose discussion on issues where there
appears to be some room for compromise. As one commentator observed:

How does one evaluate the claim that a proposed rule violates
a core value of the profession? This issue is important
because the term core value indicates a value that is central to
what it means to be a lawyer, and not simply a policy choice
between differing views of professional obligations. If a
proposed rule violates a core value, it follows that the proposal
must be rejected because it threatens a fundamental tenet of
the profession.1

52

Thus, the bar associations' labeling of the Accountancy Disciplines as
violative of the core values of the profession might have resulted from two
alternative conclusions. On the one hand, bar leaders could legitimately have
determined that the Disciplines are anathema to their profession and thus

151. See Paton, supra note 68, at 395 (noting "the internal contradictions facing the legal
profession on the broader question of liberalizing trade in services: is law a business or a
profession?").

152. Nathan M. Crystal, Core Values: False and True, 70 FORDHAM L. REv. 747, 749
(2001). Professor Crystal has suggested a two-step approach to determining whether a bar norm
qualifies as a "core value" of the legal profession:

First, define precisely the value at issue to eliminate ambiguities and uncertainties
about the meaning and scope of the value. Second, analyze whether the value
qualifies for treatment as a core value. In making this determination, one should
consider both the history and the importance of the value to the professional role.
History of the value is significant because it is to be expected that core values
find expression early in the history of professional ethics. The importance of the
value to the professional role is significant because a value that has only marginal
or uncertain importance hardly qualifies as a core value.

Id. Professor Crystal then applied this analytical approach to four putative "core values" of the
American legal profession: undivided loyalty, strict confidentiality, promotion of access to
justice, and exclusive judicial authority to regulate the practice of law. Id. at 750-773. He
concluded that none of these four values are "core values" of the American legal profession. Id.
at 773. Professor Crystal's analysis could provide some much needed understanding in this area
of professional ethics. Nevertheless, coming to a conclusion on whether a claimed value is in
fact a core value of the profession seems counterproductive in the context of sensitive GATS
negotiations. Therefore, the present analysis is more concerned with understanding the
consequences of reliance upon core values on the prospects for successfully completing the
disciplines track negotiations.

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LEGAL SERVICES TRADE LIBERALIZATION

should be rejected. On the other hand, the assertion of core values might be
seen as a strategy to allow bar associations to declare their regulatory
independence and to walk away from the negotiating table should the talks fail
to go their way. There are several statements in the bar associations' own
position papers that make the latter view more persuasive than the former.

For instance, at the same time that the CBA was questioning whether
international legal services disciplines might violate the core values of the legal
profession,'53 it was also touting the Canadian legal profession's prospects for
exporting legal services:

International trade disciplines will likely increase
opportunities for Canadian lawyers to practice international
law and Canadian law abroad. Canadian law firms are
uniquely placed in the international legal market. Canadian
lawyers are directly exposed to the two major legal systems of
the Western world (civil law in Quebec and common law in
the remaining jurisdictions) and they practise in two globally
important languages. Canada's legal culture is influenced by
that of the United Kingdom and the United States, which are
the principal players in the international legal market.
Canadian lawyers are also competitive in the international
market in terms of cost, skills and experience.154

One need not be too cynical to think that such advocacy substantially
undermines the argument that the Disciplines violate the core values of the
legal profession. 55 Instead, the arguments from core values are more
accurately seen as bids by national authorities to maintain their traditional grip
on regulatory power.156  Several defiant statements of the Canadian Bar
Association seem to confirm this reading of some bar associations' "core
values" strategy. For example, in addressing the "necessary" requirement in
Article II of the Accountancy Disciplines, the CBA stated, "[o]ur view is that

153. See generally CBA GATS Submission, supra note 102.
154. CBA GATS Submission, supra note 102, at 3.
155. See Paton, supra note 68, at 411 (noting the "tension within the legal profession in

Canada between 'protecting the guild' and desiring more open trade opportunities for exporting
legal services...").

156. See Crystal, supra note 152, at 774 ("[T]he appeal to core values has been used in an
effort to maintain professional independence from other regulatory forces and to help sustain a
professional monopoly over the delivery of legal services."); see also Paton, supra note 68, at
363-64.

Resistance to openness in various Canadian proposals and submissions is
fundamentally anchored in the notion that the legal profession is unique, or
different; that its 'core values' mean that it should lie beyond the scrutiny or
attention of trade negotiators in all but a few inconsequential areas relating to the
provision of foreign legal services within domestically regulated jurisdictions.

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IND. INT'L & COMP. L. REV.

the legal profession should not have to prove the 'necessity' of rules which it is
convinced are required to preserve its integrity and protect the public. 157

Further, it noted that its:

overall concern is that law society rules concerning matters
which relate to the public interest not be subject to review by a
third-party dispute settlement body.... Such issues of public
protection should not be left to a panel of"experts" from other
countries with little or no familiarity of Canada's legal history
and culture. 1

58

So it appears that some bar associations are less concerned that the
Accountancy Disciplines violate the core values of the legal profession, and are
more concerned that they might lose their traditional monopolies over
prescribing the precise means by which the core values may be given effect in
their respective legal systems.1 59

The point here, once again, is not to make a normative judgment about
the correctness of the bar associations' conclusions as to whether the
Accountancy Disciplines in fact violate the core values of the legal profession,
but instead to note that core values arguments present the potential for
obfuscation of the underlying issues on the rnegotiating table.' 60 Moreover,
placing stock in core values arguments risks advancing the interests of national
regulatory monopolies to the detriment of legal consumers. 161

157. CBA GATS Submission, supra note 102, at 10.
158. Id. at 17. See also CCBE Response, supra note 102, at 4. The CCBE, recommends

the insertion of the following language to Article 11(2) of the Disciplines:
For the purpose of defining what is 'necessary' in the context of legal services, it
is recognised that those entities involved in the regulation of lawyers have an area
of reasonable discretion in making decisions which involve the protection of
those core values of the profession which fall within legitimate objectives.

Id.
159. See Paton, supra note 68, at 399.

[T]he CBA worried that the burden of establishing necessity falls upon the party
imposing the restriction, which means that legal regulators would have tojustify
themselves to external dispute resolution panels, rather than merely having their
usual carte blanche to regulate in whatever fashion they decided best served the
public interest.

Id.
160. See Crystal, supra note 152, at 748 (opining that "reliance on core values of the legal

profession in debates about legal ethics has rhetorical appeal but is fundamentally misleading").
161. Id. (noting that "at a deeper level, reliance on the core values of the profession often

reflects an antimarket, anticompetitive attitude of the bar that impedes change in rules of
professional conduct...").

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VI. THE GATS, CORE VALUES, AND THE AMERICAN LAWYER:

INTEGRATING MULTI-JURISDICTIONAL LEGAL PRACTICE AND NATIONAL
ETHICAL STANDARDS

Although the American Bar Association (ABA) has been slow to stake
out a public position on the current WPDR "disciplines" negotiations, 6 2 one is
not without some evidence of how the ABA might weigh the core values of the
American legal profession, on the one hand, against the relative benefits of
liberalized legal services markets, on the other. The ABA Model Rules of
Professional Conduct,163 in many ways, forms the normative ethical basis for
American lawyers, and suggests the U.S. legal community's views of its own
core values. 64 Moreover, recent developments within the ABA, like the
promotion of the ABA Model Rule for the Licensing of Legal Consultants,165

could offer a point of compromise in the disciplines track negotiations by
advancing the notion that greater liberalization of the legal services sector might
be achieved through the bifurcation of lawyer regulatory regimes into domestic
and cross-border elements. Some of the core values expressed in the Model
Rules 166 and recent developments within the ABA are each considered below.

162. See supra note 14 and accompanying text.
163. The Model Rules were adopted by the ABA House of Delegates on August 2, 1983.

They have been amended several times since, most recently in August 2003. Most significantly
for the purposes of this Article, the House of Delegates approved comprehensive changes to
Model Rule 5.5 (Unauthorized Practice of Law; Multijurisdictional Practice of Law) on August
12, 2002, as a result of the work of the ABA's Multijurisdictional Practice Commission.
Preface to the 2004 Edition of MODEL RULES OF PROF'L CONDUCT, available at
http://www.abanet.org/cpr/mrpc/preface.html (last visited Apr. 6, 2005) [hereinafter PREFACE].
The amendments to Model Rule 5.5 and the work of the Multijurisdictional Practice
Commission are discussed infra Part VI.B.

164. See PROFESSIONAL RESPONSIBILITY STANDARDS, RULES & STATUTES 4 (John S.
Dzienkowski abridged ed., 2003-04).

Although the ABA's codes of conduct have been influential in shaping the law of
professional responsibility, they only have force as a body of rules with its
voluntary members. However, the various states and the federal courts have
looked to the ABA versions as a basis for regulating lawyers within the
jurisdiction. Thus, the ABA's codes have been used as the basis for state and
federal codes.

Id.
165. MODEL RULE FOR THE LICENSING OF LEGAL CONSULTANTS (1993), available at

http://www.abanet.org/cpr/mjp/201h.doc (last visited Feb. 21, 2005).
166. A comprehensive evaluation of the consistency of the Model Rules and the approach

to cross-border practice expressed in the Accountancy Disciplines is well beyond the scope of
this Article. Instead, the intent of this section is to suggest how the core values of the American
legal profession, as embodied in the Model Rules of Professional
Conduct, compare to the core values expressed above by the CBA, the FLSC, and the CCBE,
see supra note 102 and accompanying text, and to suggest how the American legal profession's
conceptions of its ethical responsibilities and regulatory horizons may be challenged by the
GATS. Thus, although the goal of this section is comparatively modest, it does suggest that a
wider inquiry into the consistency of the GATS and the Model Rules of Professional Conduct
might yield enlightening results. See generally Terry, supra note 13, at 1075.

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IND. INT'L & COMP. L. REv.

A. Core Values and the Model Rules of Professional Conduct

Perhaps the principal core value of the American legal profession is
expressed in the first of the Model Rules, which addresses the duty of
competent representation: 167

Model Rule 1.1. Competence

"A lawyer shall provide competent representation to a client.
Competent representation requires the legal knowledge, skill,
thoroughness and preparation reasonably necessary for the
representation."16 8

The assumption inherent in Model Rule 1.1 is that once a lawyer is
admitted to practice in a particular jurisdiction she is competent to handle any
type of legal problem.169 Geoffrey Hazard and William Hodes have reported
that this assumption of competence can be traced to the traditional view that a
lawyer who has passed a state bar examination is presumed competent to
practice law. 170  In fact, competence was not recognized as a matter of

One of the questions that I have not had time to examine is the effect of this
[standstill] principle on the work of the ABA Ethics 2000 Commission [which
proposed amendments to the Model Rules]. If the work of the Ethics 2000
Commission were adopted verbatim by a state regulator, I wonder whether any of
the changes proposed by the ABA Ethics 2000 Commission might be considered
"more restrictive" than the prior rule and might violate any of the agreements
contained in the U.S. Schedule of Specific Commitments.

Id.
167. See Brand, supra note 6, at 1138-39. The author makes a strong argument that Model

Rule 1. 1 is the chief core value of the American legal profession:
The placement of this Rule at the beginning of the Model Rules emphasizes the
importance of the duty owed to the client. The focus of this duty indicates the
fundamental importance of the interests of the client in the application of all the
Model Rules. The further fact that this duty can rarely be waived by the client
underscores its significance to the attorney-client relationship. Thus, by its very
nature, this Rule provides the fundamental test in the interpretation of every
other Model Rule. No other Rule should be interpreted in a manner that would
result in devaluation of the duty of competence or of its goal of proper
representation of the client, nor should any rule be interpreted in a manner that
accepts any other goal (e.g., protection of the profession) over this one.

Id. (emphasis added).
168. MODEL RULES OF PROF'L CONDUCT R. 1.1 (2003).
169. Id. at cmt. 2

A lawyer need not necessarily have special training or prior experience to handle
legal problems of a type with which the lawyer is unfamiliar. A newly admitted
lawyer can be as competent as a practitioner with long experience. Some
important legal skills, such as the analysis of precedent, the evaluation of
evidence and legal drafting, are required in all legal problems.

Id.
170. GEOFFREY C. HAZARD & W. WILLIAM HODES, THE LAW OF LAWYERING § 3.2 (3d ed.

Supp. 2003) [hereinafter HAzARD & HODES].

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professional responsibility until the adoption of Canon 6 of the 1970 ABA

Model Code of Professional Responsibility.171  Before 1970, lawyer

competence was almost exclusively policed through civil legal malpractice

actions. 172 Unfortunately, the assumption of lawyer competence has not always

proven sound. 1
73

The assumption of lawyer competence enshrined in Model Rule 1.1,

however, traditionally contained an important geographical limitation. That is

to say that while a lawyer has historically been deemed competent in the

jurisdiction in which he is admitted to practice, in most other jurisdictions, he is

treated as a non-lawyer. 174 This "assumption of incompetence" is not directly

embodied in the Model Rules, but is instead sanctioned in Model Rule 5.5,

which prohibits the unauthorized practice of law:

Model Rule 5.5. Unauthorized Practice of Law

"A lawyer shall not:

(a) practice law in a jurisdiction where doing so violates

the regulation of the legal profession in that jurisdiction;

or
(b) assist a person who is not a member of the bar in the

performance of activity that constitutes the unauthorized

practice of law.
'171

In an era in which rules of discipline were rarely considered binding in any event

the absence of a professional rule on competence could be traced to the unstated

view than any lawyer who had successfully completed a bar examination and met

other entrance criteria was, by definition, competent to practice law. Serious

errors might be evidence of neglect or lack of diligence, but basic competence

was assumed to be unassailable.
Id.

171. Id. The Model Code of Professional Responsibility was adopted by the ABA in 1969,

and was superseded by the Model Rules of Professional Conduct in 1983. PREFACE, supra note

163.
172. HAzARD & HODES, supra note 170, at § 3.2.

173. See, e.g., William H. Gates, Lawyers' Malpractice: Some Recent Data About a

Growing Problem, 37 MERCER L. REv. 559, 562 (1986) (reporting that 43.8% of legal

malpractice claims involve "substantive errors," such as failure to know or properly apply the

law, inadequate investigation, planning error, and failure to know about a deadline).

174. HAzARD & HODES, supra note 170, at § 46.5 ("Legal restrictions in most jurisdictions

treat lawyers who are licensed elsewhere almost as if they were lay persons for purposes of the
'unauthorized practice' rules.").

175. MODEL RULES OF PROF'L CONDUCT R. 5.5 (2001) [hereinafter MODEL RULES 2001].

Note that this is not the current version of Model Rule 5.5. The current version of Model Rule

5.5 incorporates the concept of temporary practice by out-of-state lawyers. See infta Part VI.B.

However, because only sixteen states have adopted multi-jurisdictional practice rules at least

similar to the current version of Model Rule 5.5, the version of Model Rule 5.5 cited here is the

one in effect in most states. See ABA Commission on Multi Jurisdictional Practice, State

Implementation of ABA Model Rule 5.5 (Multi-jurisdictional Practice of Law), available at

20051



IND. INT'L & COMP. L. REv.

It is accurate to say that Model Rule 5.5 merely sanctions disparate
treatment of in-state lawyers and out-of-state lawyers because states are free to
define the unauthorized practice of law within their respective jurisdictions. 176

Whatever gloss states may give to their unauthorized practice of law
prohibitions, the purpose is ostensibly consumer protection.' 77 Thus, the goal
of Model Rule 5.5 is consonant with the duty of competence in Model Rule
1.1.178 Given this identity of purpose between the duty of competence and the
unauthorized practice of law, it is not immediately clear why this duty is
expressed as a geographical limitation in Model Rule 5.5.179 One answer may
lay in the beneficial trade restrictive effects that a broad definition of the
unauthorized practice of law may have for the local bar. 18 Nevertheless, taking
stock of a lawyer's competence in rendering legal advice, regardless of
geographical location, may better reflect the reality of interstate practice and
may better serve clients by respecting their choice of counsel, even in matters

http://www.abanet.org/cpr/jclr/5_5_quickguide.pdf(last modified March 17,2005) (last visited
April 14, 2005) (including Arizona, Arkansas, California, Colorado, Delaware, Georgia, Idaho,
Indiana, Maryland, Nevada, New Jersey, North Carolina, North Dakota, Oregon, Pennsylvania,
and South Dakota in the list of states that have adopted a multijurisdictional practice rule similar
to Model Rule 5.5).

176. See MODEL RULES 2001, supra note 175, at R. 5.5 emt. ("The definition of the practice
of law is established by law and varies from one jurisdiction to another."). The varying state
approaches to defining the unauthorized practice of law is beyond the scope of this Article. For
a comprehensive treatment, see Carol A. Needham, Multiurisdictional Practice Regulations
Governing Attorneys Conducting a Transactional Practice, 2003 U. ILL. L. REv. 1331 (2003).

177. See MODEL RULEs 2001,supra note, atR. 5.5 cmt. (2001) ("Whatever the definition,
limiting the practice of law to members of the bar protects the public against rendition of legal
services by unqualified persons."); see also Benjamin Hoorn Barton, Why Do We Regulate
Lawyers? An Economic Analysis of the Justifications for Entry and Conduct Regulation, 33
ARIz. ST. L.J. 429, 435 (2001) (noting the classic justification for entry regulations as "the
protection of unsuspecting consumers from incompetent practitioners"). Professor Barton also
notes that, "[t]his justification actually involves two connected claims: the legal market is
subject to serious information asymmetries, and incompetent practitioners can inflict irreversible
or irremediable harms upon clients." Barton, supra.

178. Brand, supra note 6, at 1143. "Whatever the definition may be, the purpose behind
preventing unauthorized practice is the protection of the client Thus, the goal of Model Rule
5.5 is consonant with the duty of competence in Model Rule 1.1 ." Id.

179. Seeid. at 1150.
If, as noted above, the focus of Model Rule 5.5 on the unauthorized practice of
law is the same as that of Model Rule 1.1-the duty of competence owed to the
client-then the concern should be whether the representation is competently
rendered, regardless of where it is rendered. Particularly in an age of
instantaneous real and virtual delivery of services from any point on the globe,
any focus on where the lawyer delivers services is only likely to lead to irrelevant
legal fictions applied for the purpose of determining where the electronic
transmission of those services occurs.

Id.
180. See HAZARD & HODES, supra note 170, at § 46.3 ("But the prohibition against

unauthorized practice also functions, at least in part, as a trade restriction that precludes
nonlawyers from legal tasks, however routine.").

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with multijurisdictional elements.18
1 In fact, Model Rule 1.1 would seem to call

for just such an individualized appraisal of lawyer competence.18 2

In the end, one is left with two assumptions about the competence of legal
practitioners in the United States. On the one hand, lawyers admitted to
practice in a particular jurisdiction are presumptively competent to practice any
kind of law in that jurisdiction, but on the other hand, states are free to regard
out-of-state lawyers as presumptively incompetent to practice within that state's
jurisdiction without any inquiry into individual lawyers' particular skills. This
regime thus permits states to erect per se barriers to foreign lawyers practicing
in the United States no matter how tangential that practice might be to a state's
legitimate interest in protecting its consumers. Moreover, a restrictive view of
the unauthorized practice of law would seem to undercut the very efficacy of
GATS disciplines to govern the legal services sector because state unauthorized
practice restrictions are not "based on objective and transparent criteria, such as
competence and the ability to supply the service,"'8 3 and would have to yield if
effective cross-border practice is to become a reality.

Although the Model Rules' permissive view of state lawyer unauthorized
practice regulations might be inconsistent with the regulatory regime envisioned
in the Accountancy Disciplines, recent developments within the ABA suggest
an evolving awareness of the importance of multijurisdictional practice in both
national and international practice, which might suggest some grounds for
compromise. These developments are considered in the next section.

B. Foreign Legal Consultants and Temporary Practice: Bifurcating the
Imperatives of Lawyer Regulation

The most significant developments within the ABA in the area of
multijurisdictional practice over the last several years were products of the
Commission on Multijurisdictional Practice, or the "MJP" Commission. The

181. Seeln re Estate of Waring, 221 A.2d 193, 197 (N.J. 1966).
Multistate relationships are a common part of today's society and are to be dealt
with in commonsense fashion. While the members of the general public are
entitled to full protection against unlawful practitioners, their freedom of choice
in the selection of their own counsel is to be highly regarded and not burdened by
"technical restrictions which have no reasonable justification."

Id.
182. See MODEL RULES OF PROF'L CONDUCT R. 1.1 cmt. 1 (2003).

In determining whether a lawyer employs the requisite knowledge and skill in a
particular matter, relevant factors include the relative complexity and specialized
nature of the matter, the lawyer's general experience, the lawyer's training and
experience in the field in question, the preparation and study the lawyer is able to
give the matter and whether it is feasible to refer the matter to, or associate or
consult with, a lawyer of established competence in the field in question ....

Id.
183. GATS, supra note 8, at art. VI(4)(a) ,emphasis added).

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IND. INT'L & COMP. L. REv.

Commission was formed in July 2000,184 with the mandate to report on the state
of multijurisdictional practice in the United States and to make
recommendations that would facilitate that practice in the public interest.185

The MJP Commission ultimately made nine recommendations 186 to the ABA
House of Delegates, which adopted all nine on August 12, 2002.187 Three of
these recommendations are relevant for the present purposes, including those
relating to the Multijurisdictional Practice of Law (Recommendation 2), the
Licensing of Legal Consultants (Recommendation 8), and the Temporary
Practice of Foreign Lawyers (Recommendation 9).

Most significantly for the domestic practitioner, the MJP Commission's
Recommendation 2 on the Multijurisdictional Practice of Law effected a
significant change to Model Rule 5.5. 188 As discussed above, 189 Model Rule
5.5 prohibits a lawyer from practicing law in a jurisdiction where doing so

.would violate the regulation of the legal profession in that jurisdiction. 190 In
addition to clarifying and strengthening the unauthorized practice prohibition in

184. AM. BAR ASS'N, CTR. FOR PROF'LRESPONSIBILITY, CLIENT REPRESENTATION IN THE 21 s
CENTURY: REPORT OF THE COMMISSION ON MULTUURISDICTIONAL PRACTICE vii (2002)
[hereinafter MJP Report].

185. Comm'n on Multijurisdictional Practice of Law, Mission Statement, available at
http://www.abanet.org/cpr/mjp-missionstatement.html (last visited Feb. 25, 2005).

RESOLVED that the American Bar Association establish the Commission on the
Multijurisdictional Practice to research, study and report on the application of
current ethics and bar admission rules to the multijurisdictional practice of law.
The Commission shall analyze the impact of those rules on the practices of in-
house counsel, transactional lawyers, litigators and arbitrators and on lawyers and
law firms maintaining offices and practicing in multiple state and federal
jurisdictions. The Commission shall make policy recommendations to govern the
multijurisdictional practice of law that serve the public interest and take any other
action as may be necessary to carry out its jurisdictional mandate. The
Commission shall also review international issues related to multijurisdictional
practice in the United States.

Id. For a comprehensive overview of the work of the Multijurisdictional Practice Commission,
see Stephen Gillers, Lessons from the Multijurisdictional Practice Commission: The Art of
Making Change, 44 ARIZ. L. REv. 685 (2002). Professor Gillers was a member of the
Multijurisdictional Practice Commission.

186. See MJP Report, supra note 184, at 2-4. These recommendations addressed the
following topics: Regulation of the Practice of Law by the Judiciary (Recommendation 1);
Multijurisdictional Practice of Law (Recommendation 2); Disciplinary Authority
(Recommendation 3); Reciprocal Discipline (Recommendation 4); Interstate Disciplinary
Enforcement Mechanisms (Recommendation 5); Pro Hac Vice Admission (Recommendation 6);
Admission by Motion (Recommendation 7); Licensing of Legal Consultants (Recommendation
8); Temporary Practice by Foreign Lawyers (Recommendation 9). Id.

187. Summary of Recommendations, American Bar Association House of Delegates, 2002
Annual Meeting, Washington D.C., Recommendations 201A-J, available at
http://www.abanet.org/leadership/recommendations02/summary.html (last visited Apr. 6,2005)
[hereinafter MJP Recommendations].

188. See MJP Report, supra note 184, at 19-34.
189. See supra note 175 and accompanying text.
190. Id.

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Rule 5.5,191 the amended rule would also provide certain "safe harbors" from
charges of unauthorized practice of law for those practitioners engaged in legal
work in more than one jurisdiction. 192  Amended Model Rule 5.5 has
accordingly been re-titled to reflect its enhanced scope.' 93

Under amended Model Rule 5.5, an out-of-state lawyer may now practice
with a local lawyer who is admitted to practice in that jurisdiction and who
actively assists the out-of-state lawyer in pursuing the matter.' 94 An out-of-state
lawyer may also practice in a state where he has been admitted pro hac vice.' 95

191. See MJP Report, supra note 184, at 24 ("Rule 5.5 would be clarified and strengthened
by adoption of amended sections 5.5(a) and (b)."). Amended Rule 5.5(a) and (b) provides:

(a) A lawyer shall not practice law in a jurisdiction in violation of the
regulation of the legal profession in that jurisdiction, or assist another
in doing so.

(b) A lawyer who is not admitted to practice in this jurisdiction shall not:
(1) except as authorized by these Rules or other law, establish an

office or other systematic and continuous presence in this
jurisdiction for the practice of law; or

(2) hold out to the public or otherwise represent that the lawyer is
admitted to practice law in this jurisdiction.

MODEL RULES OF PROF'L CONDUCT R. 5.5 (2003).
192. See MJP Report, supra note 184, at 24 n.33 (reporting the Commission's decision not

to use the term "safe harbor" in the amended version of Rule 5.5, but noting that "the term...
has been a useful metaphor for conceptualizing the categories of legal work that a lawyer
admitted in one jurisdiction may do in anotherjurisdiction"). The approach of amended Model
Rule 5.5 is consistent with the approach endorsed by RESTATEMENT (THIRD) LAW GOVERNING
LAWYERS § 3 (2000), which states in relevant part:

§ 3. Jurisdictional Scope of the Practice of Law by a Lawyer
A lawyer currently admitted to practice in a jurisdiction may provide legal
services to a client: ...

(1) at a place within a jurisdiction in which the lawyer is not
admitted to the extent that the lawyer's activities arise out of or
are otherwise reasonably related to the lawyer's practice [in a
jurisdiction in which he is admitted].

Id.
193. See MJP Report, supra note 184, at 23 ("The MJP Commission proposes to re-title the

Rule "Unauthorized Practice of Law; Multijurisdictional Practice of Law."). The pre-2002 title
of Model Rule 5.5 was simply "Unauthorized Practice of Law." See supra note 175 and
accompanying text.

194. MODEL RULES OF PROF'L CONDUCT R. 5.5(c)(1) (2003).
A lawyer admitted in another United States jurisdiction, and not disbarred or
suspended from practice in any jurisdiction, may provide legal services on a
temporary basis in this jurisdiction that: (1) are undertaken in association with a
lawyer who is admitted to practice in this jurisdiction and who actively
participates in the matter....

Id.
195. Id. at R. 5.5(c)(2) ("... are in or reasonably related to a pending or potential

proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer
is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to
be so authorized..."). "Admissionpro hac vice" is the temporary admission of an out-of-state
lawyer admitted to practice before a particular court in a specific case. See BLACK'S LAW
DICTIONARY 49 (7th ed. 1999).

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IND. INT'L & COMP. L. REV.

Moreover, in proceedings that do not require admission pro hac vice, an out-of-
state lawyer may practice in the host jurisdiction if the services rendered are
related to an arbitration or other alternative dispute resolution so long as those
proceedings arise out of the lawyer's practice in a state in which she is admitted
to practice. 196 Where the practice does not fall within the above exceptions, but
nonetheless arises out of or is reasonably related to a lawyer's home-state
practice, the out-of state lawyer may be admitted on a temporary basis. 97

Lastly, amended Model Rule 5.5 provides an exception for multijurisdictional
practice by corporate counsel.1 98

Pursuant to its mandate, 99 the MJP Commission also took account of the
barriers to multijurisdictional practice within the United States by foreign
practitioners. To this end, the Commission proposed and the House of
Delegates adopted Recommendation 8, urging states to enact the ABA Model
Rule for the Licensing of Legal Consultants.200 This Model Rule permits a
foreign lawyer who meets the licensing criteria 201 to practice on a regular basis

196. MODEL RULES OF PROF'L CONDUCT R. 5.5(c)(3).
... are in or reasonably related to a pending or potential arbitration, mediation,
or other alternative dispute resolution proceeding in this or another jurisdiction,
if the services arise out of or are reasonably related to the lawyer's practice in a
jurisdiction in which the lawyer is admitted to practice and are not services for
which the forum requires pro hac vice admission ....

Id.
197. Id. at R. 5.5(c)(4) ("... are not within paragraphs (c)(2) or (c)(3) and arise out of or

are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to
practice"). On the content of the requirement that the matter in the host-state jurisdiction be
"reasonably related" to the out-of-state lawyer's local practice, found in both subsection (c)(3)
and (c)(4), see Id. at cmt. 14.

198. Id. at R. 5.5(d).
A lawyer admitted in another United States jurisdiction, and not disbarred or
suspended from practice in any jurisdiction, may provide legal services in this
jurisdiction that: (1) are provided to the lawyer's employer or its organizational
affiliates and are not services for which the forum requires pro hac vice
admission; or (2) are services that the lawyer is authorized to provide by federal
law or other law of this jurisdiction.

Id. For more on multijurisdictional practice issues facing corporate or."in-house" counsel, see
generally Needham, supra note 176.

199. See supra note 185 and accompanying text.
200. MJP Recommendations, supra note 187, at 201 H ("RESOLVED, that the American

Bar Association encourage jurisdictions to adopt the ABA Model Rule for the Licensing of
Legal Consultants, dated August 1993.").

201. MODEL RULE FOR THE LICENSING OF LEGAL CONSULTANTS § 1 (General Regulation as
to Licensing).

In its discretion, the [name of court] may license to practice in this State as a
legal consultant, without examination, an applicant who:

(b) is a member in good standing of a recognized legal profession in a
foreign country, the members of which are admitted to practice as
attorneys or counselors at law or the equivalent and are subject to
effective regulation by a duly constituted professional body or a
public authority;

(c) for at least five of the seven years immediately preceding his or her

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within the host state without becoming a member of the state bar, but subject to
certain limitations on her scope of practice. 2  The MJP Commission also

application has been a member in good standing of such legal
profession and has actually been engaged in the practice of law in
the said foreign country or elsewhere substantially involving or
relating to the rendering of advice or the provision of legal services
concerning the law of the said foreign country;

(d) possesses the good moral character and general fitness requisite for
a member of the bar of this State;

(e) is at least twenty-six years of age; and
(f) intends to practice as a legal consultant in this State and to maintain

an office in this State for that purpose.
Id.

202. Id. § 4 (Scope of Practice).
A person licensed to practice as a legal consultant under this Rule may render
legal services in this State subject, however, to the limitations that he or she shall
not:

(a) appear for a person other than himself or herself as attorney in any
court, or before any magistrate or other judicial officer, in this State
(other than upon admission pro hac vice pursuant to [citation of
applicable rule]);

(b) prepare any instrument effecting the transfer or registration of title
to real estate located in the United States of America;

(c) prepare:
i. any will or trust instrument effecting the disposition on death

of any property located in the United States of America and
owned by a resident thereof, or

ii. any instrument relating to the administration of a decedent's
estate in the United States of America;

(d) prepare any instrument in respect of the marital or parental
relations, rights or duties of a resident of the United States of
America, or the custody or care of the children of such a resident;

(e) render professional legal advice on the law of this State or of the
United States of America (whether rendered incident to the
preparation of legal instruments or otherwise) except on the basis of
advice from a person duly qualified and entitled (other than by
virtue of having been licensed under this Rule) to render
professional legal advice in this State;

(f) be, or in any way hold himself or herself out as a member of the bar
of this State; or

(g) carry on his or her practice under, or utilize in connection with such
practice, any name, title or designation other than one or more of
the following:

i. his or her own name;
ii. the name of the law firm with which he or she is affiliated;
iii his or her authorized title in the foreign country of his or her

admission to practice, which may be used in conjunction with
the name of such country; and

iv. the title "legal consultant," which may be used in conjunction
with the words "admitted to the practice of law in [name of
the foreign country of his or her admission to practice]."

Id. Twenty-four states presently have some scheme for the licensing of foreign legal
consultants. See MJP Report, supra note 184, at 61 n.54. For a comprehensive review of state

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IND. INT'L & COMP. L. REV.

recognized the need for rules to permit foreign lawyers who may not practice
regularly in the United States, and thus would not qualify for legal consultant
status,2°3 by recommending the enactment of the ABA Model Rule for
Temporary Practice by Foreign Lawyers.2

0
4 This Model Rule simply extends

the "safe harbor" concept of amended Model Rule 5.5 to foreign legal
practitioners.20 5 In fact, some of the provisions of the Temporary Foreign
Practice Rule are identical to language found in amended Model Rule 5.5.206

The upshot of this recent ABA activity is the significant erosion of the
basic presumptions that were identified in Part A above. There, it was noted
that the Model Rules originally seemed to begin with two basic notions of
competence. They seemed to suggest, first, that lawyers admitted to practice in
a particular jurisdiction were presumptively competent to practice in that
jurisdiction, and second, that lawyers licensed elsewhere were presumptively
incompetent to practice in that jurisdiction.20 7 With the inclusion of the "safe
harbor" or "temporary practice" concept in the 2002 amendments to Model
Rule 5.5, which permits U.S. lawyers to temporarily practice in states where
they are not admitted to the bar, the latter proposition no longer appears sound.
It is one matter to permit U.S. lawyers to practice temporarily in other U.S.

jurisdictions, but the ABA has gone even further by sanctioning the temporary
practice offoreign lawyers in the United States pursuant to the Model Rule for

approaches, see generally Carol A. Needham, The Licensing of Foreign Legal Consultants in

the United States, 21 FORDHAM INT'L L.J. 1126 (1998).
203. MODEL RULE FOR THE LICENSING OF LEGAL CONSULTANTS § 1 (e) ("intends to practice

as a legal consultant in this State and to maintain an office in this State for that purpose")
(emphasis added).

204. AM. BAR Ass'N COMM'N ON MULTIJURISDICTIONAL PRACTICE, REPORT TO THE HOUSE

OF DELEGATES, MODEL RULE FOR TEMPORARY PRACTICE BY FOREIGN LAWYERS (2002)

[hereinafter RULE FOR TEMPORARY PRACTICE BY FOREIGN LAWYERS], reprinted in MJP Report.
supra note 184, at 67 (Recommendation 9).

205. See MJP Report, supra note 184, at 68.
For example, a foreign lawyer who is negotiating a transaction on behalf of a
client in the lawyer's own country may come to the United States briefly to meet
other parties to the transaction and their lawyers or to review documents. Or a
foreign lawyer conducting litigation in the lawyer's home country may come to
the United States to meet witnesses. While it is not feasible for foreign lawyers
in such circumstances to seek admission as foreign legal consultants, it should
nevertheless be permissible for them to provide these temporary and limited
services in the United States.

Id.
206. Compare RULE FOR TEMPORARY PRACTICE BY FOREIGN LAWYERS, supra note 204, at §

(a)(1) with MODEL RULES OF PROF'L CONDUCT 5.5(c)(1) (2003).
Such a lawyer does not engage in the unauthorized practice of law in this
jurisdiction when on a temporary basis the lawyer performs services in this
jurisdiction that: (1) are undertaken in association with a lawyer who is admitted
to practice in this jurisdiction and who actively participates in the matter.

RULE FOR TEMPORARY PRACTICE BY FOREIGN LAWYERS, supra note 204, at § (a)(1) (emphasis
added); see also MJP Report, supra note 184, at 68 (noting that "[t]his language is identical to
language in [amended] Rule 5.5(c)(1) of the ABA Model Rules of Professional Conduct for
lawyers admitted in a United States jurisdiction").

207. See supra Part VI.A.

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Temporary Practice by Foreign Lawyers. Moreover, if a foreign lawyer meets
the criteria of the Model Rulefor Licensing ofLegal Consultants, she may even
be able to practice on a regular basis in a particular jurisdiction.

Another way to conceive of this evolving liberalization of domestic
multijurisdictional practice is to see it as a shift away from a regulatory default
to a more market-oriented approach. Whether this is a "good" thing or a "bad"
thing might depend- on our conception of the "baseline" of professional
regulation.2 °8 Professor Benjamin Barton has suggested that even in the
domestic context, a market-oriented approach to lawyer regulation is to be
preferred. Professor Barton opines that "[u]tilizing the market as the baseline is
preferable for two reasons. First, there has long been a general American
preference for the free market over government regulation. Second, even the
strongest modem defenders of regulation do not argue that regulation should
replace the free market on the whole., 20 9 If the argument for a market-oriented
policy with respect to domestic multijurisdictional practice is at least defensible,
then certainly the argument for a market-oriented approach to transnational
multijurisdictional practice questions is considerably stronger.

The demand for transnational practitioners comes mostly from
multinational corporations, large banks, and other large, institutional clients
who wish to retain lawyers with the relevant experience or expertise in specific
kinds of transactions, regardless of nationality or formal qualifications in
particular jurisdictions. 2'0 Furthermore, as a general matter, most clients who

208. See Barton, supra note 177, at 432 n. 11.
Admittedly, this approach implicitly assumes that regulation of an occupation or
an industry must be justified, which assumes non-regulation and the free market
to be the status quo. By contrast, one might argue that the discussion should
begin with justifications for not regulating lawyers, that is, assume that
government regulation of an occupation is the norm, and any deviation from
regulation must be defended.

Id.
209. Id. (citations omitted).
210. Legal Services Background Note, supra note 3, at 23.

Most of the demand for legal services in the fields of business law and
international law comes from businesses and organizations involved in
international transactions. These institutional actors will look for the legal
services provider who gives them guarantees as to its knowledge of the firm's
activities and of the place of business as well as of the quality of the service it can
deliver, regardless of its place of origin.

Id. See also Bernard L. Greer, Jr., The EEC and the Trend Toward the Internationalisation of
Legal Services: Some Observations, 15 INT'L Bus. LAW. 383, 383 (1987).

Increasingly, clients base the selection of their lawyers upon factors other than
their formal qualifications to practise law and the license they hold. The reason
these lawyers are engaged is simply that their clients have decided that they are
the best qualified to provide specific legal services in a timely and cost-effective
manner. They have been chosen not for their nationality, formal qualifications or

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IND. INT'L & COMP. L. REv.

regularly engage the services of transnational practitioners are sophisticated
enough to ensure the competence of their attorneys. 211 As one commentator has
put it, "it is disingenuous to argue that strict qualifications are needed to protect
the likes of Mitsubishi Bank and IBM, as the consumers of legal services, from
incompetent lawyers. 21 2 Even if principles of consumer protection should
trump market principles in the regulation of the legal profession in the domestic
context, it seems fairly clear that few such consumer protection concerns are
presented in transnational practice and thus fewer regulatory barriers should be
erected to the cross-border provision of legal services in this arena.

Many of the "core values" arguments that have been lodged at the
Accountancy Disciplines stem from the notion that the legal profession is an
indivisible entity with a single regulatory model.213 Nevertheless, the ABA has
shown through its adoption of the amended Model Rule 5.5, and especially of
its endorsement of the Model Rule for Licensing of Legal Consultants and the
Model Rule for Temporary Practice by Foreign Lawyers, that it is possible to
bifurcate the imperatives of lawyer regulation by creating two regulatory
regimes: one to govern cross-border practitioners, in which market
considerations are paramount, and one to govern local practitioners, in which
consumer protection concerns hold sway.

Undoubtedly it might be difficult at the margins to identify the regulatory
sphere in which a particular activity might fall, as certainly there are gray areas
inherent in the "temporary practice" concept, but such a scheme is preferable to
one in which all outsiders to a particular jurisdiction are presumptively
incompetent to practice in that jurisdiction merely because he is not a member
of the local bar. This bifurcation would help to resolve many of the intractable
issues surrounding bar association assertions of "core values" by giving the lie

the jurisdiction in which they are licensed, but rather for their experience and
expertise. There is no reason to believe that we will not see more of this in the
future.

Id.
211. Richard L. Abel, Transnational Law Practice, 44 CASE W. RES. L. REv. 737, 751

(1994). "The consumers are large, multinational corporations or financial institutions, which
dominate their lawyers rather than vice versa. Most have house counsel fully capable of
evaluating the quality of legal services and reviewing bills. Their relations with lawyers are
continuous rather than episodic, so that purchasers are experienced." Id.

212. John Haley, The New Regulatory Regime for Foreign Lawyers in Japan: An Escape
From Freedom, 5 UCLA PAC. BASIN L.J. 1, 14 (1986).

213. See, e.g., CCBE Response, supra note 102, at 7.
The first comment is to stress that the phrase "limited to subjects relevant to the
activities for which authorisation is sought" is capable of meaning only one thing
in the legal profession. It is not believed that anywhere in the world are foreign
lawyers able to acquire a host qualification or title (as opposed to an ability to
practise under home title) which is limited to a particular area. In other words, if
a lawyer is going to requalify and acquire the host title, it is the whole of the host
title of lawyer which is acquired on requalification, enabling the foreign lawyer
to carry out all the activities of the host lawyer. There is no alternative, lesser
activity which can be obtained.

Id. (emphasis added); see also supra note 122 and accompanying text.

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2005]

to the idea that both local and transnational practitioners are similarly situated.
Thus, by adopting a dual regulatory structure, bar associations could give effect
to the core values of the profession in the domestic sphere, while dismantling
the barriers that currently exist to the effective delivery of cross-border legal
services.

VII. CONCLUSION

This Article has explained the importance that the ongoing GATS
"disciplines" negotiations may have for the future regulation of trade in legal
services. Despite intense opposition from some national bar associations, there
appears to be ample room for compromise on the central issue of the
negotiations, namely, whether the Accountancy Disciplines could form the
basis of multilateral disciplines in the legal services sector. Nevertheless, this
Article has also suggested that reaching this common ground could be
imperiled by national bar associations' criticisms of the Accountancy
Disciplines as contrary to the "core values" of the legal profession. Labeling
various bar norms as "core values" effectively takes these policy choices out of
the realm of compromise and may be used to foreclose agreement on issues that
are crucial to reaching a successful resolution of the negotiations. These
arguments are most accurately seen as efforts by national bar regulators to
retain their traditional monopoly over prescribing the means as well as the ends
of legal practice in their respective jurisdictions. This Article has also
suggested that recent efforts within the American Bar Association to adopt
alternative regulatory structures that recognize temporary practice rights in
foreign practitioners, while maintaining traditional domestic lawyer regulations,
could provide a basis for compromise in the WPDR negotiations.

It is hoped that by seeing "core values" arguments for what they
frequently are, assertions of regulatory prerogatives by national authorities, the
negotiators in Geneva can move beyond rhetorical posturing and squarely
address the real and difficult issues involved in regulating the international
trade in legal services.

LEGAL SERVICES TRADE LIBERALIZATION