Amicus Curiae Brief — Wallace v. Calogero (No. 05-1645)

MOTION FILED =

4

AUG 0 1 2006

Nos. 05-1645 & 06-11

In the

Supreme Court of the United States

CAROLINE WALLACE AND EMILY MAW,

Petitioners,

V.

PASCAL F. CALOGERO, JR., IN HIS OFFICIAL

CAPACITY AS CHIEF JUSTICE OF THE LOUISIANA

SUPREME COURT, ET AL.,

Respondents

KAREN LECLERC, ET AL.,

Petitioners,

v.

DANIEL E. WEBB, ET AL.,

Respondents

On Petitions for a Writ of Certiorari to The United

States Court of Appeals for the Fifth Circuit

MOTION FOR LEAVE TO FILE A BRIEF AMICUS

CURIAE AND BRIEF AMICUS CURIAE FOR THE

COALITION OF SERVICE INDUSTRIES, INC., IN

SUPPORT OF PETIFIONERS

Donald L. Morgan

Counsel of Record

642 Mapleton Avenue

Boulder, CO 80304

(303) 443-6661

August 2006

Motion for Leave To File a Brief Amicus Curiae

The Coalition of Service Industries, Inc. (“the Coalition”),

hereby moves for leave to file the attached brief amicus

curiae (“the Brief’) in support of Petitioners.

Counsel for Petitioners have consented in writing to the

filing of the Brief. Counsel] for Respondents have refused

consent, stating that an amicus brief is in their view not

proper unless and until the Court issues a writ of certiorari.

The Brief addresses only the importance of the Questions

Presented, not the merits. Therefore it is only in the present

procedural posture of the case that it could be helpful.

As shown in the Brief's discussion of The Interest of the

Amicus Curiae, the Coalition is uniquely and well qualified

to address the adverse impact of the decision below on

pending and planned U.S. treaty negotiations to obtain

more liberal rules for American lawyers and law firms to

provide U.S. legal services abroad. The Louisiana rule at

issue discriminates against foreigners on the. basis of

nationality. Experience in prior treaty negotiations

demonstrates that other nations will contend that such

denial of “National Treatment” to them is good reason to

reject U.S. requests for more liberal rules for Americans, in

the legal services and quite possibly additional sectors.

Liberalization of those rules 1s of material value to the U.S.

Respectfully submitted,

Donald L. Morgan

Counsel of Record

642 Mapleton Avenue

Boulder, CO 80304

(303) 443-6661

TABLE OF CONTENTS

Page

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Brief Amicus Curiae of the Coalition of

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1. THE INTEREST OF THE AMICUS CURIAE............. |

i eer Y OF ARGUMENT. ...............cscccccess ee

elev ctereasivvcrsedeveseverceceres 4

A. Delivery of American Legal Services Abroad Is of

Substantial Value to the Nation’s Legal Community

i ve lcieas cvs csaxvsdchrssasscseyissveevnicessesenes 4

B. Delivery of American Legal Services Abroad Is an

Important Issue in Pending Treaty Negotiations ........... 6

C. If Allowed To Stand, the Decision Below Is Likely To

Adversely Affect U.S. Efforts To Obtain Further

Liberalization in Trade in Legal and other Services.....8

eee ice cusesssccsesveccusevevcenes ss 14

TABLE OF AUTHORITIES

Page(es)

Cases:

In re Bourke, 819 So.2d 1020, 1022 (2002) .... 1]

Graham v. Richardson, 423 U.S. 365, 378 (1971) wo... 9)

in ve Grigttehs, 403 GS. TUT (IGT SB ircsccccecsmscbisstceseroneniogs Y)

In re Marty, et al., 219 So.2d 819 (La. 2002)... 11

Mathews v. Diaz, 426 U.S. 67, 81 (1976) 0.0.0... eeeeeeeneeees 9

In re Rogot, 819 So.2d 279 (La. 2002) .............. eR ey OR 1}

Toll v. Morena, 458 U.S. 1, 10-(1982Z)......:c.cccsscreseoessveceseoses 9

Treaties, Regulations and Rules:

Australia, Revised WTO Service Offer (May 26,

2005), http://WWW.USCSL.OFg/WIO/ ..............cseseeseerereeeeeeeeeeeees 8

Collective Request-Legal Services, March 2006, 1.

Introduction, http://www.uscsi.org/wto/crequests.htm....5, 7

EU’s Conditional Revised Offer (2005),

NLS CTA IIE sii siiseniccnveisntenntesvemsbaiansanthiuccitatuns 8

GATS 2000, Request from the EC and Its Member

States, Professional Services, EC Request to the

United States of America, A. LEGAL SERVICES,

(March 2003), http://www. gatswatch.org/requests-

CETEEE IIE ssi csathcdiecnsteinsieaic ols 9

General Agreement on Trade in Services, Article

XVII, http:// www.wto.int/english/docs_e/legal/26-

Te SN ick: iecntevvetsaucncatselamdidessuidevsatindicesaepeesanisasntoek 3

La. Sup. Ct. Rule XIX, Rules for Lawyer Disciplinary

Enforcement,

http://www. lasc.org/rules/supreme/RuleXIX.asp .............. 1]

La. Sup. Ct Rule XIX Appendix E, Guidelines

Depicting Conduct which Might Warrant Permanent

Disbarment,

http://www.lasc.org/rules/supreme/RuleX|XApp.E.asp....1 1

Trade Policy Staff Committee; Public Comments for

Mandated Multilateral Trade Negutiations on

Agriculture and Services in the World Trade

Organization (WTO) and Priorities for Future Market

Access Negotiations on Norn Agricultural Goods,

Notice and Request for Comments, 65 F.R. 16450

Raise Aeliiniscdslahodeskessutondacsken tacaiubiharaniniatesniap calerincaieh 6

Summary of U.S. Request Respecting Legal

Services (March 2003),

http://www.abanet.org/cpr/gats/us request.doc .................. 7

Miscellaneous:

Coalition of Service Industries, Services Drive Growth,

Recent CSI Events, http://www.uscsi.org/meetings/........... |

Sydney M. Cone, II], INTERNATIONAL TRADE IN

LEGAL SERVICES (Little, Brown 1996), section 3.2.1 ..11

i

Council of Bars and Law Societies of Europe,

Conditions for the admission of lawyers from non EU

Member States,

http://www.ccbe.org/doc/En/gats questionairre_en.pdf....10

Japan Federation of Bar Associations, Japanese Attorney

System, 2. Qualifications to Become Attorneys,

http://www.nichibenren.or.jp/en/about/system.html.......... 10

Martindale- Hubbell Law Directory 2006 ............cceeeeee 5

J. Quinn, The Right to Practice Law in the European

Union: An American Perspective, 2004 Macquarie

Business Law Journal, “IV US LAWYERS RIGHTS

TO PRACTICE IN THE EU”, ;

http://www. austlil.edu.au.au/journals/MqBLJ/2004/6.

BO sa stecih cxscieacoal ised neu budesassante danas laeienauiieeeraereintaas eh nasal 10

“Services Liberalization in the Doha Round: US

Industry Priorities”, http://www.uscsi.org/meetings/........... 2

State Implementation of Recommendations 8 and 9,

Quick Guide, L. Terry, Summary of State Action on

ABA MJP Recommendations 8 & 9,

http://www.abanet.org/cpr/jclr_ home.html............0.0.0.00..... 9

United States Department of Commerce, Bureau of

Economic Analysis, October 2005 Survey of Current

Business, U.S. International Services; Cross-Border

Trade in 2004 and Sales Through Affiliates in 2003,

http://bea.gov/bea/pub/100Scont. htm) .........0.. eee eee eeees 5

USTR Official Discusses U.S. Trade Policy in the

Americas (May 31, 2006), http://usinfo.state.gov/

usinfo/Archive/2006/Jun/01-605834html ..00..0.. cece eee 7

USTR Portman Prepares Congress for OMAN Deal

(March 31, 2006).

http://www. texasfairtrade.org/article.php?story=2006

033 10934068 1 6&mode=print ...................0ceseseesssessessssseeeenes

Brief Amicus Curiae of the Coalition of Service

Industries, Inc.

I. THE INTEREST OF THE AMICUS CURIAE

The Coalition is an incorporated nomprofit membership

association organized under and existing pursuant to the

laws of the District of Columbia.’ It is an advocacy

organization dedicated to the reduction of barriers to U.S.

services exports including legal services, and to the

development of constructive domestic U.S. policies to

enhance the global competitiveness of its members. Since

its formation in 1982 the Coalition has worked with and

offered advice on trade issues to U.S. government agencies

such as the Office of the United States Trade

Representative (“USTR”) and the Departments’ of

Commerce and Treasury.”

Robert Vastine, President of the Coalition since 1996,

previously served in various Congressional staff posts and

as Deputy Assistant Secretary of the Treasury for

International Trade and Raw Materials Policy. He has

authored many publications on U.S. trade policy. He chairs

the official Industry Trade Advisory Committee for

International Trade in Services and chaired its pre-2004

predecessor, Industry Sector Advisory Committee 13.

Representatives of Coalition members, including members

' No counsel for a Party authored any part of this Brief. No

person other than the Coalition, its members or counsel

made a monetary contribution to its preparation or

submission.

A chronology of CSI interaction with government agencies

from April 2003 into 2006 appears at Services Drive

Growth, Recent CSI Events, http://www.uscsi.org/meetings/.

of its Legal Services Committee, also have experience on

these advisory committees. At almost monthly meetings

the committees receive briefings from USTR and other

agencies respecting progress and foreign objections in their

negotiations and provide recommendations to them on how

to meet the objections and on affirmative industry goals.

With the Department of Commerce, the Coalition has co-

sponsored annual symposia on the progress and goals of the

negotiations.* It cooperates with like- minded private sector

organizations such as the European Services Forum and the

Australian, Brazilian, Canadian, Chilean, Hong Kong and

Japanese services organizations.

The Coalition and its members thus have a unique basis

within the private sector to address the mportance of the

Questions Presented. The Coalition is concerned that other

nations will view the Louisiana rule denying access to its

bar examination and practice of law to a sub-classification

of legally admitted aliens as a significant obstacle to U.S.

efforts to negotiate more liberal rules for trade in legal and

possibly other services in ongoing U.S. negotiations in the

World Trade Organization and in other multilateral and

bilateral negotiations.

Il. SUMMARY OF ARGUMENT

The Louisiana rule at issue here discriminates on the basis

of nationality against foreigners legally resident in this

For example, the January 12, 2005, symposium, held in the

Main Auditorium at Commerce, was entitled “Services

Liberalization in the Doha Round: US Industry Priorities”,

http://www.uscs1.org/meetings/.

ta

country.’ Americans can practice law in the state, the

foreign Petitioners cannot. The rule runs counter to the

growing trend in international relations not to discriminate

on the basis of nationality. The Congress, the

Administration, and United States trade representatives

support that trend, convinced that our country will benefit

from it.

The U.S. has for example asked many other nations not to

discriminate against American lawyers who provide or

wish to provide legal services in foreign countries. Because

reciprocity plays a large role in trade negotiations, a foreign

backlash against the already well-known Louisiana rule, if

it be allowed to stand, could adversely affect our legal

community in the several important trade negotiations that

are currently underway or planned.

While the backlash would focus on legal services, it could

prejudice our negotiations in other sectors as well. In any

event, the direct monetary value of American legal services

provided abroad is itself substantial. Moreover, of even

greater value are the investments and commercial

transactions that American businesses are likely to make

abroad if they can obtain assistance from American lawyers

and law firms whom they know and trust.

Expansion of our foreign trade is of large national

importance. As the Associated Press reported on July 11,

“National Treatment” means that each WTO Member “shall

accord to services and service suppliers of any other

Member, in respect of all measures affecting the supply of

services, treatment no less favorable than that it accords to

its own like services and service suppliers.” General

Agreement on Trade in Services, Article XVII,

http://www.wto.inVenglish/docs_e/legal_ e/26-ats_O1 e.htm.

2006, newly appointed Secretary of the Treasury Henry

Paulson pledged “to make sure the country does not retreat

from the global economy”, remarking that “the strength of

the U.S. economy is linked to the strength of the global

economy.” He cautioned that “If we retreat from the global

stage, the void is likely to be filled by those who do not

share our commitment to economic reform.” He added that

he planned to expand trade and investment.

Few aspects of present day American legal services to

foreign nations are protected by treaty, and they are

vulnerable to domestic protectionist elements that would

surely try to exploit the discrimination inherent in the

Louisiana rule. Some nations already affirmatively prohibit

or substantially constrain the provision of American legal

services. The ongoing treaty negotiations could, if

successful, gain treaty protection for existing practices and

open up markets that are closed.

There thus is an important national interest at stake in

whether the Louisiana rule will be allowed to stand. That

interest argues strongly for review by this Court.

iii. ARGUMENT

A. Delivery of American Legal Services Abroad Is of

Substantial Value to the Nation’s Legal Community

and Economy

The value of cross-border exports of U.S. legal services has

increased for many years and stood at $3.9 billion for 2004,

while cross-border imports declined to $754 million. For

2003, the latest year for which relevant data are available,

al

J.

the value of legal services provided to foreigners by U.S

law firm offices abroad was $1.1 billion.” Today at least

107 U.S.-based law firms have an aggregate of at least

460 foreign offices. The United States, and U.S. law

firms, thus have a substantial monetary interest in exports

of legal services.

The experience of the Coalition and its members indicates

that many of the consumers of such services are U.S.

entities doing business abroad. They generally prefer to

receive legal assistance from firms with which they are

familiar, firms that are knowledgeable about U.S.-law

aspects of what they are doing and what they are

constrained from doing.’ Thus U.S. based law firms

substantially facilitate the making of foreign investments

and the conduct of business abroad, as well as compliance

with applicable constraints imposed by U.S. law. In view of

the magnitude of foreign investments and transactions for

which U.S. lawyers and firms provide legal services, the

United States Department of Commerce, Bureau of Economic

Analysis, October 2005 Survey of Current Business, U.S.

International Services; Cross-Border Trade in 2004 and

Sales Through Affiliates in 2003, at 25, 28, 30, 40, 45-46,75,

http://bea.gov/bea/pub/1005cont.htm

6

These figures are based on a review of Martindale -Hubbell

Law Directory 2006 listings for San Diego, San Francisco,

and Los Angeles, California, New York, New York, and

Washington, D.C. Though incomplete, the figures probably

suggest the magnitude of U.S. law firms’ current and

potentia&future foreign operations.

See, e.g., Collective Request-Legal Services, March 2006, |.

Introduction. http://www.uscsi.org/wito/crequests.htm (“In

addition .o contributing to a business-friendly environment

for investment, greater foreign investment is encouraged if

host-country regulatory systems permit investors to have

access to their own legal advisers.”’).

importance of exports of legal services to the U.S. economy

is far greater than the dollar value of those services

themselves, although harder to quantify.

B. Delivery of American Legal Services Abroad Is an

Important Issue in Pending Treaty Negotiations

USTR has recognized the importance of exporting legal

services in its trade negotiations for many years. The

starting point for such negotiations is the fact that

American lawyers and law firms enjoy few treaty rights to

establish offices and to practice U.S. or local domestic law

abroad. It was not until the Uruguay Round Agreements of

1994 that services were addressed in _ negotiations

conducted under the auspices of the General Agreement on

Tariffs and Trade, established in 1947. The Uruguay Round

Agreements include the General Agreement on Trade in

Services (“GATS”) and established the World Trade

Organization (“WTO”) as the institutional successor to

GATT.

In recognition that it had achieved very limited

liberalization in services, GATS called for the reopening of

services negotiations beginning in 2000. The Office of the

United States Trade Representative (“USTR”) began public

preparations for renewed negotiations with a_ Federal

Register notice and request for comments on objectives on

March 28 of that year.” Those negotiations are ongoing

See, Trade Policy Staff Committee, Public Comments for

Mandated Multilateral Trade Negotiations on Agriculture

and Services in the World Trade Organization (WTO) and

Priorities for Future Market Access Negotiations on Non-

Agricultural Goods, Notice and Request for Comments, 65

.R. 16450 (2000).

6

today, as part of what is known as the Doha Round. In this

context the Coalition has continued to work closely with

U.S. negotiators’ and foreign private-sector interests to

bring about significant liberalizations of legal services

among others.

WTO negotiations involve both requests for and offers of

liberalization. In March 2003 the U.S. requested the

developed-nation Members of the WTO to afford broad

rights to U.S. lawyers and law firms to practice U.S. law

including international law and the right to take bar

examinations m and practice domestic law on the same

terms and conditions that apply to a Member's own

citizens.'” The U.S. has also joined with Australia, Canada,

the EC, Japan, New Zealand and Norway in a Collective

Request for similar liberalization. This request seeks among

other things removal of nationality requirements and

consideration of “permitting foreign lawyers, subject to

satisfying domestic licensing requirements, the right to

provide legal services in domestic law.” See, Collective

Request, supra Note 7, at 3. These requests do not

anticipate WTO agreement to require all its Members to

comply with them. Rather, the requests seck voluntary

binding agreements by individual Members that they will

afford the requested access and treatment.

USTR has known for years that agreement in the Doha

Round might be delayed because of difficulties of reaching

The principal U.S. negotiators work at USTR. They

cooperate with the Departments of Commerce and Treasury,

in consultation with other authorities including — the

Department of Justice.

| . t ’ . -

"The U.S. has not made the request public, but a summary of

it appears at http://www.abanct.org/cpr/gats/us_request.doc.

agreements in the agricultural sector. While nonetheless

still actively seeking agreement in the Round, USTR has

also negotiated and is today negotiating bilateral and

regional free trade agreements.'' USTR has sought in these

negotiations the same liberalized access to foreign markets

for American lawyers as set forth in its Request to WTO

Members and in the Collective Request.

C. If Allowed To Stand, the Decision Below Is Likely

To Adversely Affect U.S. Efforts To Obtain Further

Liberalization in Trade in Services, Particularly

Legal Services.

Reciprocity naturally plays ‘a large role in_ trade

negotiations. For examples, Australia’s WTO May 26,

2005, Revised Service Offer for legal services is expressly

and “in particular . . . conditional upon the degree of

liberalization proposed in the same sectors in the offers of

other WTO Members”, and the EU's Conditional Revised

Offer “is conditional on other WTO Members making

substantive offers in sectors where the EU has made

requests.””'*

In the legal services sector, the U.S. is constrained in what

it can offer by the fact that regulation of the sector in this

country is historically the province of the individual states,

which USTR respects. Foreign negotiators, and their

"See. ¢ v.. U.S. Hopes Central American Trade Pact Takes Effect

“Very Seon”, http: /usinfo.state.gov/ why Archive/2006/Jun/05-

961219. himl: USTR Portman prepares Congress for OMAN Deal

(March 31, 2006),

http: www.texaslairtrade.ory/article.php? story

—2006033 10934068 16&mode-—print.

WTO Services Offers, http:www.uscsi.org/wto/. The public

offers of many additional Members are available at this site.

lawyer constituencies who are generally vigilant to keep

foreign lawyers away, are quick to object that something

that the U.S. has requested is not available in every U.S.

jurisdiction. This has been particularly true for

establishment of foreign offices of U.S. law firms and the

right in those establishments to practice the full range of

law that American lawyers are authorized to practice in

their home jurisdictions, i.¢., to act as “Foreign Legal

Consultants” (“FLCs’”’).

At the time of the Uruguay Round Agreements only

46 U.S. jurisdictions had rules that allowed FLCs to

practice under any conditions. The inability of foreign

lawyers to serve as FLCs in many U.S. jurisdictions was

frequently and strongly objected to as a reason for other

WTO Members not to liberalize. Ten more jurisdictions

have FLC rules today,'* but the objections continue to dog

the U.S. negotiators and arise in exchanges between the

Coalition and foreign legal representatives.

Recognizing the importance of USTR’s efforts to liberalize

trade in legal services, the American Bar Association and

other associations are trying to enhance USTR’s

negotiating position by encouraging U.S. jurisdictions to

adopt a liberal model rule for FLCs and a model rule to

allow foreign lawyers to temporarily practice the law of

their home jurisdictions. '*

See, State Implementation of Recommendations 8 and 9-

Quick Guide, L. Terry, Summary of State Action on ABA

MJP Recommendations 8 & 9,Table |,

hitp://www.abanet.org/cpr/jclr_home.html

14 ’ ‘

See, ¢.g., id at Table 2.

State- imposed nationality requirements have not yet played

a large role in USTR’s negotiations, quite possibly because

until the present controversies it appeared to be the law that

states could not blithely discriminate against legally

admitted aliens. E.g., Toll v. Moreno, 458 U.S. 1, 10

(1982); Mathews v. Diaz, 426 U.S. 67, 81 (1976); in re

Griffiths, 413 U.S. 717 (1973); Graham v. Richardson, 423

U.S. 365, 378 (1971); cf, GATS ‘2000, Request from the

EC and Its Member States, Professional Services, EC

Request to the United States of America, A. LEGAL

SERVICES (March 2003) (asking for removal of federally-

imposed citizenship requirements to practice before the

U.S. Patent and Trademark Office and changes in state

FLC rules, but not mentioning any nationality requirement

to practice law), — http://www.gatswatch.org/requests-

offers.html#outgoing. Persons active in foreign bar

associations are, however, now well aware of the Fifth

Circuit’s rulings in the present cases. If those rulings stand,

they will provide yet another argument for other nations to

withhold the treaty commitments that the U.S. is seeking in

the legal services sector.

That argument can gain force by the fact that many nations

do not impose any nationality requirement for the practice

. S . ©

of law.’ That argument can also gain force by the

See, ¢.g.. J. Quinn, The Right to Practice Law in the

European Union: An American Perspective, 2004 Macquarie

PRACTICE IN THE EU” (England),

http://www.austlitedu.au.au/journals/ MgBLJ/2004/6.himk

Japan Federation of Bar Associations, Japanese Attorney

System, 2. Qualifications to Become Attorneys,

http://www.nichibenren.or.jp’en/about system.htm | (Japan);

Council of Bars and Law Societies of Europe. Conditions for

the admission of lawyers from non-EU Member States,

http://www.ccbe.org/doc/En/gats questionaire en.pdf.

10

unpersuasiveness of the Fifth Circuit’s asserted interest of

Louisiana in denying “nomresident” aliens'® access to the

practice of law, namely, the supposed difficulty of

enforcing disciplinary rules against those aliens who

assume and then neglect litigation responsibilities. The

Fifth Circuit cites not a single instance of disciplinary

problems with foreign lawyers who have been authorized to

practice their law in New York since 1974'’ or in other

states including Louisiana. For its part, the Louisiana

Supreme Court apparently was unconcerned with actual

experience with foreign lawyers, as it rejected proposals

from two of its Justices to study the issue. See, /n re

Bourke, 819 So.2d 1020, 1022 (dissenting opinion of Chief

Justice Calogero), reh'g denied, 820 So.2d 565 (2002); In

re Rogot, 819 So.2d 278 (La. 2002); /n re Marty, et al., 819

So.2d 278 (La. 2002).

The Fifth Circuit ignored too the existing rules of the

Louisiana Supreme Court that authorize it to impose a

variety of sanctions including disbarment and to notify

other authorities of action taken. See, e.g., La. Sup. Ct. Rule

XIX, Rules for Lawyer Disciplinary Enforcement (“Types

of Sanctions ... .H. Notice to National Discipline Data

Bank ... .A. [Notice to Disciplinary Agencies] of every

other jurisdiction in which the respondent is admitted. . . .

B. Public Notice... .”),

http://www. lase.org/rules/supreme/RuleXIX.asp; Rule XIX

(France, Germany, Iceland, Italy, Luxembourg, and

Sweden).

It is a matter of some concern that in general American

lawyers practicing abroad are not entitled to permanent

residence there.

See, Sydney M. Cone, II], INTERNATIONAL TRADE IN

LEGAL SERVICES (Little, Brown 1996), section 3.2.1.

Appendix E, Guidelines Depicting Conduct which Might

Warrant Permanent Disbarment,

http://www. lasc.org/rules/supreme /RuleXIXApp.E.asp.

Disbarment is of course a very potent sanction: Any

lawyer, regardless of where located, would certainly wish

to avoid the disgrace involved in that, or in lesser public

sanctions. Lawyers would also want to avoid notice to their

home jurisdiction of discipline imposed by — other

jurisdictions. Among other things, such notice could lead to

sanctions in the home jurisdiction.

Foreign lawyers would also not want to lose the right to

represent to clients and potential clients that they are

members of a bar in the U.S. and can practice Louisiana

law.

The Fifth Circuit paid no heed to the deterrent strength of

the risk of sanctions under existing rules. A fortiori, it did

not address the possibility, which could easily be raised in

trade negotiations, that Louisiana could condition the nght

to practice law on consent to the jurisdiction of Loutsiana

courts for any professional activities carried out or having

effects in the state, thereby affording any complaining

clients ready access to a convenient forum.

The Fifth Circuit appears to have proceeded on the basis of

the assumption that many normresident aliens would engage

in litigation. While that would be theoretically possible,

the experience of the Coalition and its members indicates

that many and likely the great majority of foreign lawyers

who gain admission to practice in a U.S. jurisdiction do not

want to engage in litigation in American courts. There they

would often be at a substantial disadvantage due to cultural

and historical differences from the American lawyers they

would oppose. Rather, the foreigners generally wish to

represent clients in business transactions that are or may be

governed in whole or in part by the '»/ of a state or by

federal law. Membership in a U.S. bar is extremely

important in terms of attracting and performing such work.

The Fifth Circuit wholly ignored the non litigation appeal

of membership 1n a U.S. bar to foreign lawyers.

The unusual circumstance that Petitioners Carolyn

Williams and Emily Maw wish to represent the accused in

capital cases, challenging imposition of the death penalty

on a pro-bono basis, is likely to add to resentment in other

nations that have decided on humanitarian grounds to do

without that sanction, if the ban against their admission to

practice in Louisiana 1s upheld.

In sum, the absence of any substantive, factually-based

justification for Louisiana’s discrimination on the basis of

nationality can only aggravate the difficulty that the U.S.

faces in persuading other nations to open their markets or to

keep them open to American lawyers. The decision below

could even prejudice the U.S. in free trade negotiations in

other sectors, negotiations that are already difficult. In

addition, a lack of access to American legal services abroad

for American businesses would likely adversely impact

achieving longstanding U.S. goals of — increasing

international trade and investment.

IV. CONCLUSION.

The foregoing considerations respecting the importance of

the Questions Presented favor issuance of the writ of

certiorari.

Respectfully submitted,

Donald L. Morgan

Counsel of Record

642 Mapleton Avenue

Boulder, CO 80304

(303) 443-6661

August 2006