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I. Introduction1
It is widely accepted today that the legal profession in the United States is in a state of flux as it perceives and responds to changes in the demand for and provision of legal services.2 These changes, as they develop, will inevitably affect the way in which the profession is regulated and the ethics rules that guide and govern the practice of lawyers. As one commentator has observed, the law governing lawyers is fragmenting.3 There is pressure on the profession to move away from self-regulation, as historically embodied in state supreme court disciplinary authorities, the adoption by the states of the American Bar Association's Model Rules of Professional Conduct, and moral suasion as the primary sources of authority,4 toward regulation through 'hard law' and distinctive, legally enforceable rules governing particular subject areas of practice.
Jamie Gorelick, former US deputy attorney general and co-chair of the ABA Commission on Ethics 20/ 20, remarked in a 2009 interview on the effect of globalization on the practice of law that the "placebased" ethics system is under siege in "a world in which borders are disappearing."5 The pressure to eliminate jurisdictional borders as demarcators of autonomous legal ethics regimes arises in part from the distinct lack of consistency in the various state approaches to lawyer conduct rules. In characterizing the fragmentation of lawyer regulation, Professor John Leubsdorf wrote:
More and more regulators have sought to regulate the bar. If once the American Bar Association's codes dominated the field, now courts have become increasingly unwilling to defer to them, and legislators and administrators have become increasingly unwilling to defer to either bar associations or courts. We are witnessing the decline of the ideal of professional self-regulation at the same time that the ideal has been almost entirely demolished in England. (Citations omitted.) 6
This is a compelling thesis, but one that has yet to be fully realized in the United States, where powerful institutional forces at work within the legal system, including state supreme courts and state and national bar associations, have kept the "place-based" system of state-by-state self-regulation of the profession by the courts and the bar pretty much in place, at least for now.
In the United Kingdom7, however, the legal profession has undergone a...