RESOLUTIONS
Adopted by
THE XLIVth CONFERENCE OF THE INTER-AMERICAN BAR ASSOCIATION
Lima, Peru, June 24-28, 2008

Resolution 1

Whereas: Mandatory licensing for lawyers is of great importance to society, since it guarantees the legality, professionalism, and ethical conduct of professional practice;
Whereas: Given the broad and widely disparate quality of academic offerings for the study of law it is appropriate that Regulatory bodies of the legal profession exercise the function of certifying the fitness of graduates to proceed to admission to the profession;
Whereas: In carrying out the aforementioned function it is important that Regulatory bodies of the legal profession implement programs of continuing legal education;
Whereas: Ethics control is an essential task of Regulatory bodies of the legal profession; and Whereas: Regulatory Bodies of the legal profession should actively cooperate to facilitate access to justice for all populations, especially
those economically less-well-off;

THE INTER-AMERICAN BAR ASSOCIATION RESOLVES:
To approve and make its own the attached document, which has been prepared and approved by the Institutional Forum on the Legal Profession.1

BASES FOR A LEGISLATION REGARDING THE LEGAL PROFESSION IN THE AMERICAS,THE CARIBBEAN AND SPAIN
The Inter-American Bar Association considers that the work of attorneys should be regulated by legal provisions in each country containing the following elements:
1.    Mandatory licensing.
2.    Testing standards.
3.    Continuing legal education.
4.    A code of ethics and Disciplinary Bodies.
5.    Legal aid.

and recommends that all the countries in the Americas and the Caribbean adopt such legislation or modify their existing laws in order to incorporate the aforementioned principles.

1. Mandatory licensing
As the rendering of some professional services is a matter of social interest, it is advisable that the State delegate to professional regulatory bodies the control of those services, granting to such regulatory bodies the character of public entities independent from the State.
Precisely, the public interest served by professional regulatory bodies allows for a mandatory licensing system that is compatible with the principle of freedom of association. Their objectives exceed the simple defense of their members' professional interests. These regulatory bodies are, above all, custodians of the public interest delegated by the State for practical reasons and by law.
Mandatory licensing for lawyers is of great importance for the public at large because it guarantees the control of legality, of professionalism and of ethical behavior of attorneys. It does not conflict with other functions such as the support of legal aid systems and the support given to other attorneys to optimize the practice of law. All that allows the rendering of justice - a public service - to flow more freely.
The control of legality means that the regulatory bodies of the legal profession (the "Legal Regulatory Bodies") have checked that the person in question did in fact obtain his/her law degree from an accredited university and that the applicant fulfills all other conditions that have been previously established and made known. Accordingly, a resulting license to practice reassures the public that all the corresponding background checking has been done.
The testing control is done by the Legal Regulatory Bodies in two ways: a) Instituting an aptitude test through an exam, a trainee program or another type of control, which will be a requirement for admission to practice; b) Strengthening the lawyer's proficiency by establishing continuing legal education programs.
The control of ethical behavior by Legal Regulatory Bodies is done through disciplinary bodies, which determine if any complaint filed against a member has merit or not and sanctioning any member found to have breached the ethics code.

2. Aptitude certification
There are now many institutions that grant J.D. diplomas. Some of these institutions are better than others. Some of the graduates are not really prepared to practice law. A by-product of this situation is that it tends to flood the market with attorneys. This is not a good situation for the public at large which is relying on the lawyer's qualification to provide the solicited legal service. We must remember, further, that more informed lawyers improve the work of the courts and thus benefit the administration of justice in general.
For Legal Regulatory Bodies to be able to guarantee high professional standards of their members, they must be able to administer an aptitude test, with a certification system, as is done successfully in many countries through bar examinations or a system of professional training with practicing attorneys, or other modalities deemed appropriate.

3. Continuing legal education
High professional standards do not end with the initial control over legal practice. It is important to establish continuing legal education programs ("CLE"), in ways that can be mandatory or optional. These programs made available to attorneys would include updates on legal writing, case law and legal practice, which will improve professional standards. Mandatory continuing legal education implies a certain number of mandatory hours of study during a specific term.
Voluntary CLE is offered only to those who request it, by fulfilling the pre-established CLE hours. Surely the attorneys who show that they have periodically attended CLE programs are in a better position to market their services than those who do not.

4. Ethics code and Disciplinary Bodies
Ethics control is an essential task for the Regulatory Bodies. It is the only way of ensuring that lawyers will be responsible for their professional conduct and will maintain the high standards and prestige of the profession.
For that, it is necessary to have an Ethics Code underlining the high responsibility that attorneys have towards society at large. Rules of ethics should state the fundamental duties of the lawyer in relation to the community and the Rule of Law, defending justice and the practice of law in relation to clients, colleagues and the administration of justice.
To adjudicate cases of alleged ethics violations, Regulatory Bodies should establish their own disciplinary institutions. These institutions should ascertain that the practice of law develops in accordance with the Code of Ethics, guaranteeing to society that those who transgress the Code of Ethics shall be sanctioned, while safeguarding the possibility to appeal these decisions before the courts of competent jurisdiction.

5. Legal aid
One of the problems found in various countries in the Americas, in the Caribbean and in Spain is the difficulty in obtaining access to justice in various social sectors. Notwithstanding the fact that the causes of this difficulty are varied, one important impediment is the economic difficulty of paying attorney fees. In this regard, Legal Regulatory Bodies should actively cooperate to facilitate access to justice for all populations through various legal aid systems, such as free legal clinics.
These clinics, operated by members of Legal Regulatory Bodies, must provide legal assistance, counselling and representation free of charge to all those who do not to have the economic means to pay for such services in accordance with the applicable rules. All this is without prejudice to pro bono work done by various legal organizations and law firms or to legal representation dispensed by the State or other social organizations in many countries, taking into consideration that in certain countries Legal Regulatory Bodies give preference to a State-funded legal aid system.

Resolution 2

The Inter-American Bar Association, in view of the European Parliament legislative Resolution of June 18, 2008 and proposed Directive on the return of third-country nationals deemed to be illegally staying in countries of the European Union, has approved the following Resolution:

Whereas: In accordance with the Declaration of Human Rights all people have the right to move freely within and outside their country and to freely choose a place to live and work;
Whereas: The condition of being a migrant should not diminish the rights recognized by the different international instruments regarding human rights;
Whereas: It is in the general interest of the international community to guarantee that transcontinental migration takes place in a manner that respects human rights, especially human dignity, and that prevents all discriminatory measures;
Whereas: Through their work, economy and culture, immigrants make a significant contribution to the development of the societies in which they live;
Whereas: Globalization cannot be understood as only meaning the opening of borders for the flow of capital, goods and information, but should especially include the free circulation and settlement of people;
Whereas: All States are responsible for promoting, recognizing and protecting the human rights of immigrants and their families, regardless of migratory status, in harmony with national legislation, international law and human rights instruments;
Whereas: Criminalization of illegal immigrants does not contribute to providing a safe solution consistent with human rights; Whereas: The historical policy of the American States to maintain open doors for European citizens to settle, to work, to advance economically and to form a family in our countries, is in dramatic contrast with the European Union's current migration policy; and Whereas: The members of the legal profession in the Americas are committed to the defense of human rights,

THE INTER-AMERICAN BAR ASSOCIATION RESOLVES:

1. To denounce before the Council of Human Rights of the United Nations, international bar associations, and the foreign ministries of the several Ibero-American governments, the European Union's restrictive policy on migrants and their relatives, which infringes people's inalienable rights as reflected in the above-mentioned Resolution and Directive, and ask for their support within the scope of their respective jurisdictions, to ensure that this Resolution be rendered ineffective.

2. To express its commitment, through its member bar associations, to provide support and advice, in all the countries of the Americas, to relatives of national migrants to Europe, in order that they may have reliable information regarding their relatives' migratory status.

3. To coordinate with European bar associations support and advice to immigrants from the Americas, and request that they actively support and pursue the defense of rights deemed to have been violated.2

Note: The original drafts of these resolutions were submitted and adopted in Spanish.

1    Proposed by the Institutional Forum on the Legal Profession.
2    Proposed by the Ilustre Colegio de Abogados de Lima.