The differences in perception between U.S. and foreign lawyer codes of conduct is more than simply a matter of academic interest or curiosity. It is only a matter of time until the WTO turns its attention to the codes, examining whether and to what extent they create illegitimate regulatory barriers to trade in legal services. As the participants in the Forum on Transnational Legal Practice have come to realize, if the legal profession is to play a meaningful role in cross-border regulation, it must seize the initiative, much as the CCBE did in 1988 with the adoption of the CCBE Code. Waiting for a proposal from the WTO is a reactive strategy with little chance of success. To avoid being marginalized in the formative stages of WTO review, the ABA, CCBE, JFBA, and other organized bars must come to grips with the substantive and cultural differences in their respective codes of lawyer conduct. They must direct their efforts first to achieving a consensus on shared core values and second to understanding the dichotomy between standards and rules that divides their perceptions of lawyer codes. The first task is not an impossible one. Here, again, the CCBE Code points the way, demonstrating that the ethical divide between the civil and common law countries can most often be bridged and that where it cannot, an agreement can be reached on a conflicts of law resolution. The second task is more complex, demanding the disentanglement of deeply rooted understandings of the function of lawyer codes of conduct, the mechanisms of their enforcement, their place in legal education, and their promotion by the organized bar. In the end, the real dichotomy is not between standards and rules but between the perceptions of U.S. and foreign lawyers about the role of codes of conduct.
Mary C. Daly,
The Dichotomy Between Standards and Rules,
32 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol32/iss4/6