Lawyers of California: The ABA wants you
By Alfred P. Carlton Jr.
President, American Bar Association
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Carlton |
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 www.abanet.org and go to our
membership information homepage.
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