In a prestigious journal devoted to transnational law, the intramural concerns of American lawyers cannot claim pride of place. Nonetheless, it is difficult to see how we can clear the way for lawyers to move from nation to nation if we cannot move from state to state. Charity, as they say, begins at home. Either we are insular and protectionist or we are not. We cannot have it both ways.
As Prince Bismark noted, however, "Politics is the art of the possible." Like it or not, American lawyers are stuck with a system of state-based regulation for the foreseeable future. Even if Congress had the power to override state supreme court regulation of lawyers, there is no political will to make such a change. And for many purposes, state-based lawyer regulation has worked, and will continue to work, well. Trust account violators, for example, are readily and appropriately prosecuted from coast to coast.
Nonetheless, as Professor Brand has noted, there are obvious cracks in the system that will likely produce increasingly inappropriate results unless the state-based unauthorized-practice rules are modified. This modification will require three things: (1) a relaxation of the state unauthorized-practice rules as applied to lawyers from other states; (2) a broadening or clarification of authority so that bar counsel in a jurisdiction in which a lawyer is practicing but is not licensed can discipline that lawyer; and (3) greater resources for, and greater cooperation between, bar disciplinarians in different jurisdictions.
Peter R. Jarvis,
Small World After All or Ball of Confusion? Some Thoughts on National Multijurisdictional Practice,
34 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol34/iss4/9