Lawyers Without Borders

52 Pages Posted: 9 Sep 2008 Last revised: 24 Sep 2009

See all articles by Catherine A. Rogers

Catherine A. Rogers

The Pennsylvania State University (University Park) – Penn State Law; CCLS, Queen Mary University of London

Date Written: September 9, 2008

Abstract

Professional regulation of attorneys is still attempting to catch up with the burgeoning international legal profession, which until recently has been wholly unregulated. The primary effort has been through revisions to Model Rule 8.5 to extend the reach of the Rule to international cases and professional activities in foreign countries. Because Rule 8.5 was drafted for domestic multi-jurisdiction practice, however, it is based on assumptions about territoriality and the historical relationship between the jurisdiction of tribunals and the licensing of attorneys that are simply inapposite in international settings. As a result, applying Rule 8.5 to international tribunals and international advocacy produces anomalous and often problematic results.

A more careful examination of how the Rule would operate in various practical settlings reveals not only shortcomings in the Rule, but the need for a new conception of what it means to be an "international lawyer" or a "global advocate," and the need for a new approach to regulating these individuals. For the short and medium term, I propose a series of proposals for rewriting the Rule to provide for interim management of these issues.

While Rule 8.5 is a meaningful attempt to respond to an obvious need to regulate international law practice, I argue that it causes more problems than it resolves and must be completely rewritten as applied to international legal practice. Ultimately, however, resolving the problems with Rule 8.5 is only a first step in the ominous but important task of developing a coherent regulatory regime for international legal practice. In a related forthcoming article entitled The Global Advocate, I will take up these challenges.

Keywords: professional responsibility, ethics, international adjudication, dispute resolution, international arbitration, comparative law, conflict of laws; professionalism, model rules, regulation, international law practice, International Court of Justice, Iran-U.S. Claims Tribunal, ICTY

Suggested Citation

Rogers, Catherine A., Lawyers Without Borders (September 9, 2008). Bocconi Legal Studies Research Paper No. 1265410, Available at SSRN: https://ssrn.com/abstract=1265410 or http://dx.doi.org/10.2139/ssrn.1265410

Catherine A. Rogers (Contact Author)

The Pennsylvania State University (University Park) – Penn State Law ( email )

Lewis Katz Building
University Park, PA 16802
United States

CCLS, Queen Mary University of London ( email )

Charterhouse Square
London, EC1M 6AX
United Kingdom

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