One morning in early October of last year, my wife and I were walking from our comfortable hotel room in the Inn of the Royal College of Surgeons, Lincoln’s Inn Field in London, to Fleet Street and the Royal Courts of Justice where Fleet Street turns into The Strand. Our route took us by one of the venerable legal book stores in the area, and I submitted to an impulse and entered the shop to do some browsing.  While there I came across and interesting title, particularly unusual for a British bookstore. The title of the book was The Vanishing American Lawyer, written by a George Washington University law professor and published last year by Oxford University Press.

The book intrigued me so I bought it and have since had the opportunity to examine its contents. I cannot here give even a brief summary of the books contents and theses, except to say that the title is derived from the author’s belief that lawyers in the future will have thrust upon them such serious episodes of intense competition that lawyers and law practice must change, and change radically, from the practices and activities that have heretofore been their major characteristics. Change will also be driven by the increasingly complicated nature of legal issues, where they more often than not will touch upon more than one legal system.

One sentence toward the end of the book was particularly intriguing. Professor Thomas D. Morgan, the author, noted that “today’s purchasers of legal services require their services to be delivered promptly, at high quality, and potentially anywhere in the world.” (emphasis added). This observation, upon reflection, merely reinforces the common perception of a growing global community, one of interaction in many fields of endeavor, where lawyers are called upon to advise clients or present cases in court and the issues are international, where the outcome of the advice or dispute will have effects in other countries or will affect organizations or entities whose activities extend beyond the borders of any particular country.

There is one area of law practice, however, that the author cautions should not change, and that relates to the idea of lawyers “acting professionally.” Professor Morgan, states in the last chapter:

Everyone benefits from having lawyers … act with high    character and in ways one would proudly call “professional.” The message of this book has simply been that to act professionally, one need not be part of a ‘profession.’…
A lawyer’s primary concerns should be integrity, loyalty, competence, and confidentiality. (emphasis added)

I want to emphasize in this discussion the third characteristic listed by Professor Morgan, that of competence, because that characteristic is the essential ingredient in the idea of “ethics without borders” for judges and lawyers.

Judges and lawyers in the United States have ethical responsibilities when acting in their professional capacities. The nature of these ethical responsibilities are defined in codes of conduct for judges. They are defined for lawyers through codes or rules of professional responsibility.

Most if not all codes of professional responsibility for states have in them some reference to lawyer competence. One such state code provides in its very first canon:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill,  thoroughness, and preparation reasonably necessary for the representation.

This is taken from the American Bar Association Model Rules of Professional Conduct.

Likewise most if not all states include in their judicial codes of conduct a requirement of competence. For instance one state judicial code of conduct provides:

 Rule 2.5: Competence, Diligence, and Cooperation
(A) A judge shall perform judicial and administrative duties         competently, diligently, and promptly.

Therein lies the relevance of international law to the requirement of a judge and lawyer to act ethically, to act with “professional responsibility.”

Lawyers are being increasingly called upon to deliver legal services for clients whose interests transcend national borders. International law, in its many variant forms, is now or is becoming so pervasive that the legal practitioner ignores it at his or her peril. To live up to the requirements of the canons of professional ethics for lawyers in the United States, for them to act professionally, for them to act ethically, requires of them some knowledge of international law.

Likewise, if lawyers are required, in acting ethically, to have some competence in international law, a fortiori judges should have the same competence. The rulings and judgments of judges have a finality and consequences that go beyond the legal opinions and arguments of lawyers. And if cases involve issues or consequences that extend beyond national boundaries or touch other legal systems, then judges have an even more important competence obligation or responsibility that extends to international law, at least the international law that would be relevant to the legal issues in the case under consideration.

So for judges and lawyers to follow respective codes of conduct and codes of professional responsibility, to act ethically, requires of them in today’s world knowledge, understanding and use of international law. Professional ethics in the world we now live in has become ethics without borders.

(Note: This editorial is derived from a speech by the author on the same subject at a Federal Bar Association conference in Hawaii in December, 2010)