The United States exported $3.38 billion in legal advice in 2003, almost four times the $879 million it imported, according to the most recently available statistics from the U.S. Department of Commerce. These numbers suggest the United States should be an aggressive proponent of free trade at the upcoming World Trade Organization (WTO) meeting in which members will commence a new round of talks on the General Agreement on Trade Services (GATS). The goal of the GATS treaty is to liberalize the exchange of services in the public sector, including legal services.
"More and more companies are running into cross-border situations that may be ordinary in terms of their operations, but are complicated by the legalities of implementing these operations in a foreign legal system," says Steven Nelson, the Hong Kong-based co-chair of Dorsey & Whitney's Asia practice group. Nelson also is a member of the International Bar Association's (IBA) WTO working group, which favors the liberalization of trade in legal services. "I suspect that this round of GATS will give U.S. attorneys more of the mobility they need to properly advise clients in these situations."
But the talks have been arduous and proposals for liberalization slow in coming."The services negotiations have become static because there has been so little progress in areas that have more priority, such as agriculture," says Markus Jelitto, legal counselor in the trade and services division of the WTO in Geneva.
Proponents of a more open legal framework hope to make some progress in the May meeting, and will argue that in today's increasingly global market, lawyers need to follow their clients to the countries where they operate and give them advice on the laws of their home country and international law.
Still, getting the protectionist states to change their minds has been a slow process. It has taken 31 years--since New York began the practice of registering and regulating foreign legal consultants in 1974--to bring less than half the states into the fold. And only a handful of the states that allow foreign lawyers have adopted the ABA Model Rules for the Licensing of Foreign Legal Consultants, which are based on the expansive New York rules. The remainder of states have their own detailed rules as to what foreign lawyers can do.
As recently as January, South Carolina Chief Justice Jean Hoefer Toal told a plenary session of the Conference of Chief Justices in New York that her court