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Article Excerpt
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. (12)
The essence of the legal consultant rules is the recognition that practice experience and certification in the home jurisdiction qualifies a lawyer to carry on the same activities in the host jurisdiction.
The legal consultant concept has been endorsed by the ABA, which recommended its Model Rule on the Licensing of Legal Consultants to all jurisdictions. (13) The Model Rule is based on New York's legal consultant rule, initially adopted in 1974, (14) which remains the most liberal of all the legal consultant rules adopted by U.S. jurisdictions. The legal consultant concept also is the basis for the approach to legal services under the General Agreement on Trade in Services (GATS). (15)
This Article offers a comparative analysis of legal consultant rules adopted by U.S. jurisdictions. It begins with a brief introduction to the legal consultant regulatory structure and then highlights the variations and conflicts among legal consultant rules of different jurisdictions. A more detailed comparison of these state regulations and the ABA Model Rule on Licensing Legal Consultants is set forth in the Tables accompanying the Article. Finally, the Article considers the importance of the legal consultant option from a competitive regulatory standpoint.
I. THE THEME AND ITS VARIATIONS
Legal consultant rules follow a basic pattern that addresses four factors: (1) qualifications required for obtaining a license to practice as a legal consultant, (2) application requirements, (3) the scope of practice permitted to licensed legal consultants, and (4) obligations imposed on legal consultants as a result of licensing. (16) Articulating this basic pattern, however, belies the nearly complete lack of uniformity in the rules that have been adopted in the United States. Each of the twenty-six U.S. jurisdictions that license legal consultants has established its own standards for these four factors. The lack of uniformity is remarkable for the number of issues on which there is variation as well as for the extent of the variation among jurisdictions. This diversity in the rules, coupled with the failure of nearly half of all jurisdictions to adopt any legal consultant regulation at all, complicates the task of the United States in negotiating a trade agreement on legal services.
The legal consultant regulations do, of course, share a number of basic characteristics. Each establishes conditions for obtaining the legal consultant license. (17) For example, all legal consultant rules require the foreign lawyer to be admitted and in good standing in his or her home jurisdiction, (18) and most require foreign lawyers to have some practice experience before applying for the license. (19) This is consistent with the basic theory of the legal consultant license, which grants authority to advise based upon an attorney's qualification and experience in his or her home country. The standard most common in U.S. legal consultant rules requires foreign lawyers to have practiced for at least five of the seven years immediately preceding the application for licensing as a legal consultant. (20) There is variation in the details of this standard: Michigan and New York, for example, require practice experience for only three of the last five years, while Louisiana and Massachusetts require that the applicant have practiced for the last five years (rather than five of the last seven years). (21) Three jurisdictions do not require any practice experience at all, instead focusing on admission to the bar and good standing of the applicant: (22) Ohio requires the applicant to have been admitted and be in good standing (but does not insist on practice experience) for four of the last six years, (23) and the District of Columbia and Utah require only admission and good standing without establishing any particular period for this status. (24)
A related issue is whether the practice experience must have been accomplished while the legal consultant was physically present in his or her home country or whether it is permissible for the experience to be gained through practice performed in any jurisdiction as long as it is related to the law of the applicant's home country. Under the latter formulation, a French lawyer who practiced French law for five of the last seven years would satisfy the application experience requirement even if his experience was gained by practicing French law from an office in Chicago. Six jurisdictions require the practice experience to be accomplished in the home country of the applicant, (25) eleven require only that the experience be in practicing the law of the home country, (26) and the rules of another six jurisdictions are ambiguous on this issue. (27) Another twist is added by Missouri's rule, which requires the applicant to have been engaged in full-time practice during the mandatory period of time; (28) other jurisdictions do not specify whether something other than full-time practice would suffice.
Application requirements are the second general factor addressed by legal consultant rules. Two concerns arise with regard to application requirements. First, if the application process is too onerous, it discourages foreign lawyers from pursuing the legal consultant license. Second, application fees might be so high as to be burdensome. Again, there is no standardization among jurisdictions. The application process often involves completing a form provided by the regulating authority, and in nine jurisdictions the regulator may require applicants to complete the National Conference of Bar Examiners' report on character and fitness. (29) Typical supporting documentation includes certification of good standing in the home jurisdiction; letters of recommendation from other home country attorneys and, in certain jurisdictions, from lawyers in the host jurisdiction; evidence of compliance with immigration regulations; and educational records. (30) Fingerprints, photographs, and birth certificates also might be required. In addition, seventeen jurisdictions require proof of malpractice insurance before a license will be granted; of these, only one, Oregon, requires its attorneys to carry malpractice insurance. (31)
The third factor addressed by legal consultant rules is the scope of practice to which a license authorizes a legal consultant to engage. This is a crucial aspect of the legal consultant rules because it establishes the boundaries of the legal consultant's practice and may determine the economic opportunities of a legal consultant. If the scope of practice is broad enough, a legal consultant might rely on the license as providing authority to practice in the United States in a variety of positions and with diverse organizations. If the scope of practice is too narrow, practicing as a legal consultant may make little sense economically and offer few if any meaningful career opportunities.
Scope of practice rules fall into three patterns. The first pattern takes a liberal approach to the issue of scope of permitted practice and enables licensed legal consultants to engage in a wide spectrum of advising activities. This enabling approach essentially permits licensed legal consultants to advise on the basis of any national or international law as to which they are competent, subject to certain articulated exceptions. The exceptions, of course, are controlling--they restrict licensed legal consultants from advising on federal law or the law of the particular jurisdiction providing the license except on the basis of advice from a locally admitted attorney. Thus, a New York licensed legal consultant would advise on New York law only on the basis of the advice of a New York admitted lawyer; (32) essentially this permits a licensed legal consultant to pass along advice obtained from a licensed lawyer. The rules leave it to the individual lawyers involved to determine the details of their relationship. (33)
Enabling regimes that authorize legal consultants to advise on local law based on the advice of a local lawyer also typically prohibit legal consultants from advising on particular matters that are considered so local as to be inappropriate for foreign lawyers. The local character of the activity relates either to the institution involved or to the nature of the problems addressed by that particular area of the law. (34) Four activities are forbidden to licensed legal consultants: (1) appearing in court, (2) advising on transfers of real estate located in the U.S., (3) advising on marital, divorce or custody matters relating to U.S. residents, and (4) advising on wills and trusts or decedents' estates relating to U.S. residents or property located in the U.S. (35) Outside of these four areas of legal practice, legal consultants licensed in an enabling regime are authorized to advise on any law as to which they are competent, including federal and state law to the extent their advice is based on that of a locally admitted lawyer.
The second pattern of scope of practice provision in the legal consultant rules follows a "protectionist" approach. Rules following this pattern authorize licensed legal consultants to advise on the law of their home jurisdiction but forbid them from advising on the law of any other jurisdiction; for example, North Carolina's legal consultant rule prohibits legal consultants from rendering "professional legal advice regarding State law, the laws of any other state, the laws of the District of Columbia, the laws of the United States or the laws of any foreign country other than the country in which the foreign legal consultant is admitted to practice as an attorney or the equivalent thereof." (36) Legal consultants in North Carolina may not advise on federal law, North Carolina law, or the law of another U.S. jurisdiction, even if they base their advice on the opinion and counsel of a lawyer admitted in the relevant jurisdiction. Moreover, they are prohibited from advising on the law of any third country where they are not admitted, even if they consider themselves competent to do so.
In addition to this very narrow scope of practice provision in the protectionist regimes, these jurisdictions also specify that licensed legal consultants may not engage in the particular activities forbidden as being too local in the enabling regimes: appearing as an attorney in court; advising on transfers of real estate; advising on marital, divorce, or custody matters; or advising on wills, trusts, or decedents' estates. (37) Of course, this further restriction makes little sense, since advising on any federal or state law is forbidden. It is clear even without this specification that these four areas also are off limits.
A few protectionist jurisdictions go even further. Illinois provides a good example of how special interest bar groups exert additional influence: Illinois prohibits legal consultants from offering legal advice "with respect to a personal injury occurring within the United States" or relating to immigration, customs, or trade law. (38) This is unnecessary and redundant given the general prohibition of the protectionist approach.
The third pattern of scope of practice provision in the legal consultant rules lies between the enabling and protectionist approaches. This cautious approach offers the promise of the enabling approach but simultaneously undermines the authority of a licensed legal consultant by imposing conditions of the exercise of a broad scope of authority. Jurisdictions following a cautious approach authorize licensed legal consultants to advise on federal and state law if they base their advice on that of a locally admitted lawyer--as in the enabling jurisdictions--but require the legal consultant to include the locally admitted lawyer in his or her relationship with the client in an obvious manner. (39) This triangular relationship might take one of two forms. Two states require any federal or state law advice to be communicated only by transmitting the written advice of the local lawyer to the client. (40) Five jurisdictions require that the local lawyer to be identified to the client by name after consultation in the particular matter--thus encouraging the client to contact the local lawyer directly for further information relating to federal or state law matters. (41) This latter version of the middle-of-the-road scope of practice provision also results in defining the relationship between the legal consultant and the local lawyer by requiring consultation in the particular matter at issue, rather than a looser, more flexible relationship allowed by the enabling approach.
Last, legal consultant regimes typically impose certain conditions on the exercise of the license. For example, the title by which a legal consultant can hold him or herself out is addressed by the rules of most jurisdictions. Ethical obligations also are addressed by most rules. Certain jurisdictions require legal consultants to carry malpractice insurance, to complete a course on professionalism, (42) to pass the Multistate Ethics Examination, (43) or to advise only pursuant to a formal relationship with an attorney licensed by the host jurisdiction. (44) In addition, relations between legal consultants and local attorneys also often are articulated, making it clear that legal consultants may employ or be employed by local lawyers or join in partnership together. (45)
Apart from the particular standards included in the legal consultant rules, a more fundamental issue relates to whether the legal consultant regulatory regime is mandatory for all foreign lawyers practicing in a jurisdiction in which such rules have been adopted. Must all foreign lawyers working on a permanent basis in a jurisdiction that has adopted a legal consultant licensing regime obtain a legal consultant license? In most of the twenty-six jurisdictions that have adopted legal consultant regimes, the rules simply do not address this issue. Rather, they establish what must be done to obtain the license and what a licensed legal consultant may do, as described above. But they do not affirmatively mandate that every foreign lawyer intending to practice on a permanent basis in the jurisdiction obtain a legal consultant license before rendering advice. In contrast, New Jersey's legal consultant rule requires all foreign lawyers to obtain the license before offering services in New Jersey. (46) Without an affirmative articulation of a mandatory licensing requirement, foreign lawyers are left to guess at the necessity of becoming licensed, particularly if they anticipate working in the jurisdiction for a particular term before returning to their home countries. (47) In fact, in the New York offices of foreign law firms, it is quite common for one lawyer in the office to obtain the legal consultant license while others forego any sort of registration with the New York bar. (48)
II. THE TABLES: COMPARING THE RULES
The following Tables offer a more complete picture of the legal consultant rules and present the variety and diversity of these provisions. These Tables present a comparative analysis of the legal consultant rules (49) as well as of the ABA Model Rule on the Licensing of Legal Consultants. The analysis is divided among two tables that include a synopsis of the relevant provisions and references to the legal consultant rules in each U.S. jurisdiction having such rules as of April 2005. Table 1's columns two through five set out the licensing standards relating to the experience required for legal consultants, the place where that experience must be obtained, whether legal consultants must take the ethics exam, and whether they must complete the NCBE character and fitness report. Column six...
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