Hot topics at ABA meeting

The American Bar Association is holding its new-style, slimmed-down annual meeting in Boston this week.

One of the main EU-US lawyers’ topics is the long-term negotiation between the US and Europe on the Transatlantic Trade and Investment Partnership (TTIP), which is the free-trade deal being proposed between the two blocs, and which includes legal services. What can our respective lawyers do within the borders of the other bloc?

The Council of Bars and Law Societies (CCBE) has been in continuing dialogue with its two opposite numbers in the US – two because of the way that US attorneys are regulated (the Conference of Chief Justices is the regulator, and the ABA is the trade union). There will be a session dealing with the TTIP, at which both the CCBE and the Law Society will be speakers.

Despite the close relationship and continuing conversations between legal services’ regulators and representatives, there is likely to be special progress made soon on two other professions, both of which have easier regulatory frameworks: accountancy and architects. Yet the government negotiators on both sides know that there is interest in making progress on liberalising legal services, too.

The CCBE has already sent its request to its US partners, and is waiting to hear back from the Americans with their request. Both sides believe that it is worth continuing the process, even if it is governments which will finally come to the deal, because we prefer that governments adopt what we have freely agreed rather than that we have an arrangement we do not like imposed on us. 

The TTIP is running into headwinds from civil society in Europe, concerned that some of the European ways of doing things will be damaged or lost. For instance, Jon Healey MP, who chairs the House of Commons’ All-Party Parliamentary Group on TTIP, has expressed concern about the possible impact on the NHS, and in particular its mix of private and public delivery.

The European Commission has now published a letter to him, making clear that the way member states handle public services like health will be protected in the negotiations. That will not stop the organisation of campaigns by those opposed to the TTIP, including an Anti-TTIP European Day on 11 October.

Yet another item of interest will be the extra-territorial impact of borderless technology on the practice of law. The CCBE has followed the lead of the ABA, and has recently written to the director of the National Security Agency (NSA) seeking assurances that the same protections the director assured the president of the ABA that the NSA would extend to lawyer-client communications of US nationals would also be extended to lawyer-client relationships not including US nationals.

The CCBE has encouraged its own member delegations – including the UK – to write to their own national intelligence agencies to seek equivalent assurances relating to lawyer-client confidentiality at home. Interestingly, although this topic did not merit any showcase sessions at last year’s ABA annual meeting, this year - following revelations that American lawyers have been spied on by their own government agencies - there is a showcase session sponsored by the Litigation Section on ‘Wire-tapping of Attorney-Client Conversations’. Again, the CCBE and the Law Society will be providing speakers.

Secondly, on the same topic of extra-territoriality, we will be speaking to our American colleagues about the impact of a recent case where a federal judge in New York ruled that Microsoft cannot refuse to turn over customers’ emails or other digital content to American investigators with a search warrant, even if the data are stored outside the US (in this case, they were stored in Dublin). Microsoft has appealed. The European Commission responded at the time to say that data must not be directly accessible or transferred to American authorities outside formal cooperation channels.

The question of how to fit the new wine of borderless technology into the old skin suited to a world with borders continues to challenge lawyers and the courts (see the fuss over the Google right-to-be-forgotten decision by the European Court of Justice). This year, we are sure our American colleagues will be as concerned as we are by the subject, and doubtless they will raise the Google case with us.

We see disputes over borders flare up around the world at the moment (even in milder form in our important debates over Scottish independence and Euroscepticism). Now we see that we lawyers are also troubled by problems thrown up by borders.

Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs