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Lawyers of California: The ABA wants you

By Alfred P. Carlton Jr.
President, American Bar Association

Alfred P. Carlton Jr.

Lawyers in America are facing unprecedented challenges — to their professional independence, to their ability to protect their clients and to their entrepreneurial spirit. It is only through the talents and wisdom of all lawyers in the nation that we can address these pressures and respond adequately in the interest of the public we serve, the courts we are sworn to protect and the profession we revere.

It is important that you work through your state, local and specialty bar associations to address these issues. But it also is vital that you add your voice to the dialogue and debate in the American Bar Association, both to ensure that our judgments are informed and reflect the best thinking the collective profession has to offer, and to lend your weight to our responses for maximum effect.

In the past few years there has been an astounding convergence of initiatives that threaten to undermine the structure of professional oversight by state courts as an independent and co-equal branch of government, a structure that until now has protected our ability to champion the rights of those who cannot protect themselves.

We have seen the Congress enact Sarbanes-Oxley, directing the executive branch, through an administrative agency, to adopt rules of practice with far-reaching consequences for lawyers who practice before the Securities and Exchange Commission, including rules with the potential to conflict with ethics regulations adopted by the courts of the states.

We have seen lawyers ordered by the Federal Trade Commission to notify their clients of privacy protections as if we were financial institutions governed by Gramm-Leach-Bliley, a directive that risks creating confusion and breeding mistrust.

While U.S. lawyers have wrestled with issues of multijurisdictional practice, the World Trade Organization has moved forward under the General Agreement on Trade in Services (GATS) to include legal services under international trade agreements, which means the U.S. trade representative is involved in negotiations regarding the conditions under which foreign lawyers may provide legal services in the United States, and vice versa.

While there is general understanding by the U.S. trade representative about the primary role of the state judicial branch of government in regulating the legal profession, federal incursions into this arena are ongoing and likely to continue throughout the GATS negotiations.

The ABA has been steadfast and vigilant in monitoring these international efforts, to ensure the independence of the legal profession is preserved through the paramount authority of the state judiciaries.

Another development on the international scale is the Gatekeeper Initiative, put forth by the Financial Action Task Force on Money Launder-ing, an intergovernmental body consisting of 29 countries, including the U.S., and two international organizations, which was established to develop and promote anti-money laundering policies at the national and international levels.

The Gatekeeper Initiative is directed at lawyers, accountants, auditors and other professionals who assist their clients in financial transactions and business dealings, and whom law enforcement officials believe are in a position to act as gatekeepers to prevent money laundering.

The U.S. Department of Justice is leading an inter-agency U.S. task force to develop the Administration's position on the Gatekeeper Initiative and its application to lawyers. Under consideration are new regulations requiring lawyers to investigate prospective clients, to monitor proposed and consummated transactions, and to submit to law enforcement authorities "suspicious transaction reports" about their clients' activities.

The ABA is responding to many of these issues, leading the challenge on your behalf.

On Sarbanes-Oxley, we have filed comment letters and have met with SEC officials to help them shape regulations that will achieve the goals of Congress while protecting the ability of lawyers to counsel their clients in compliance with the law.

On Gramm-Leach-Bliley, we attempted to work with the FTC to obtain an exemption for lawyers, who were never intended to fall within the law. When that did not succeed, we filed suit in your behalf.

With respect to GATS, we are working to mobilize bar officials and licensing authorities to respond to the trade agreement procedures that allow you a voice in how it will be applied, ensuring that any modifications to "trade" barriers to legal service providers maintain client protection and assure fair "trade" competition.

Our ABA Task Force on the Gatekeeper Initiative is working to make sure that lawyers who serve as financial intermediaries are subject only to reasonable requirements that do not intrude on client confidentiality, and to educate lawyers on how to recognize money laundering or other misuse of the legal system to achieve criminal ends.

These matters were the subject of recent policies adopted by the ABA in February.

While activism at the federal level poses daunting challenges to the legal profession, the ABA, working in concert with the lawyers of America, can meet these challenges. Find out how you can help and make your voice heard by contacting the ABA at 1-800-285-2221 or visit our website at and go to our membership information homepage.

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