Regulating International Lawyers: The Legal Consultant Rules

I. THE THEME AND ITS VARIATIONS II. THE TABLES: COMPARING THE RULES III. CONCLUSION: THE FUTURE ROLE FOR LEGAL CONSULTANTS TABLE 1 TABLE 2 END NOTES: TABLES 1 & 2 Economic globalization increasingly leads to lawyers crossing national borders in their practices. Many lawyers travel occasionally to serve existing clients, while others relocate and practice more or less permanently outside of the jurisdictions in which they originally were educated and licensed. Those who relocate might be associated with the foreign offices of law firms that are based in their home countries, (1) with the international practices of host country law firms, (2) or with corporations, NGOs, or other organizations having international interests that render attractive the intimate knowledge of a foreign legal system characteristic of these lawyers. Lawyers practicing outside of the jurisdiction in which they were educated and licensed must consider the regulatory approach to practice of the host jurisdiction. (3) These lawyers--here identified as "foreign lawyers" because they practice in jurisdictions foreign to the jurisdiction in which they were educated and licensed--face several possible regulatory approaches. Those traveling only occasionally may be permitted to advise in the host jurisdiction so long as they have no permanent presence--such as an office--in the host jurisdiction. This is the position advanced by the American Bar Association (ABA) in its recent recommendation for adoption of a temporary practice rule for non-U.S. lawyers. (4) On the other hand, lawyers relocating more or less permanently to an office in the host jurisdiction often face more restrictive regulations. Certain jurisdictions permit foreign lawyers to join the bar and practice as local lawyers based upon their home country legal education and license as supplemented by host country education and, in certain jurisdictions, practical training. (5) Other jurisdictions exclude foreign lawyers entirely unless they requalify in the same manner as domestic lawyers; (6) still others allow foreign lawyers to occupy the limited practice status of a legal consultant. (7) This Article focuses on the last of these options, the legal consultant status. Foreign lawyers entering the United States are faced with jurisdictional and substantive complexities relating to their practice opportunities. Each U.S. jurisdiction, in principle, might adopt two sets of relevant rules. One set would determine the rights of foreign lawyers to sit for the state bar examination and be admitted as local lawyers with full practice rights. The rules might provide that an applicant with a degree from a foreign law school and some additional education in a U.S. law school, short of a three-year J.D., would satisfy the conditions for taking the bar exam. (8) More commonly, the rules prohibit applicants from sitting for the examination unless they have graduated from an ABA-approved law school with a J.D. degree. In fact, jurisdictions vary widely in their policies regarding practice opportunities available to foreign lawyers. (9) Twenty-eight jurisdictions permit foreign educated lawyers to sit for their bar examinations, either on the basis of their foreign legal education, upon a showing of practical experience, after completing a brief period of U.S. legal education, or a combination of these conditions. (10) In nearly half of these twenty-eight jurisdictions, the opportunity to sit for the bar is limited to foreign lawyers whose primary legal education was completed in a common law jurisdiction. (11) The second set of rules applicable to the rights of foreign lawyers to practice in the United States offers a more limited license than bar admission. The legal consultant regime enables foreign lawyers to practice outside of their home jurisdictions on the basis of their home country expertise. Twenty-six jurisdictions have adopted legal consultant licensing regimes. …