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The ABA has adopted four model policies that address, in one way or another, the issue of foreign lawyer mobility. These policies are the ABA Model Foreign Legal Consultant Rule, which is commonly known as the FLC rule, the ABA Model Rule for Temporary Practice by Foreign Lawyers, which is commonly known as the FIFO rule, ABA Model Rule of Professional Conduct 5.5, which permits foreign lawyers to serve as in-house counsel, and the ABA Model Rule on Pro Hac Vice Admission. All four of the ABA’s foreign lawyer mobility recommendations include a requirement that the mobile foreign lawyer is “subject to effective regulation and discipline by a duly constituted professional body or a public authority.” In other words, these rules set forth requirements regarding the nature of the regulatory system in the foreign lawyer’s home jurisdiction. A number of U.S. states have included this requirement in their foreign lawyer mobility provisions, but a number have not. (Some countries have a somewhat comparable provision in their foreign lawyer mobility rules, but other countries do not.) Although the ABA model rules and a number of state rules include this requirement, neither the ABA Model Rules nor any of the state rules have defined what it means for a foreign lawyer to come from a system with “effective regulation and discipline.” Nor is there any evidence that this requirement has been enforced in those states that have included this requirement. This article suggests that the “effective regulation and discipline” requirement has been an elephant in the room that no one has been willing to talk about. The article argues that the time has come to confront this issue head-on. It asserts that either efforts should be undertaken to define and enforce this requirement or that the requirement should be abandoned. The article reviews two “threshold” issues that jurisdictions might want to consider when deciding whether to adopt or retain an “effective regulation and discipline” requirement. It also identifies resources that might be consulted for “benchmarking” purposes if and when U.S. regulators decide to add “meat to the bones” by defining and enforcing the “effective regulation and discipline” requirement found in foreign lawyer mobility provisions.
Laurel S. Terry, Reflections on US Policies regarding Effective Regulation and Discipline and Foreign Lawyer Mobility: Has the Time Come to Talk about the Elephant in the Room, 16 Legal Ethics 284 (2013).