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Globalization Drives Proposed ABA Rules on Foreign Lawyers

Are proposed rules that would allow foreign lawyers lacking a domestic law license to practice on a limited basis in the United States the proverbial camel’s nose? 

At least some commentators on the American Bar Association’s draft revisions think so, according to a preliminary report of the Commission on Ethics 20/20. 

The commission has, on a tentative basis, put forward revisions which would allow foreign lawyers the same rights as many U.S. lawyers who are licensed in one state, but not licensed in another state where they need to work.  These attorneys would be able to practice pro hac vice (which means on one specific matter or case), or as in-house counsel (who work for a single corporate client).  The commission itself went to some pains to state it has taken no position on the proposals, but is only circulating the draft and soliciting comment. 

“Some have expressed concerns that amending the In-House Registration Rule in this manner will constitute the “camel’s nose under the tent” of increased foreign lawyer presence in the U.S.,”  according to a report issued last week by a working group of the ABA Commission on Ethics 20/20.  “Those lawyers are already here, especially in the ‘in-house’ context.” 

The proposal would “fill a policy void” by revising current rules on registration of in-house counsel and pro hac vice admission, according to the report.   

Foreign counsel working for a U.S. employer would be vetted twice, in their home nation and by their employer.  The Working Group concluded the risk to the public is “de minimus” because their practice would be limited and they work for a single employer. 

The report noted that 13 states now permit pro hac vice admission for foreign lawyers under certain conditions, and predicted that “the need for such rules in other states will continue to grow.” 

Local counsel would be required who would “be involved and bear responsibility” in the representation, according to the proposal.  

Six states now allow foreign in-house counsel to work in the U.S. provided they register. 

The proposal, if adopted by the ABA, comes amid increasing indications of the international scope of marketplace for legal services. recently named three American firms, Reed Smith, K&L Gates and Bryan Cave as US-based practices that would actively consider a merger with a London firm. The finding is contained in Legal Week‘s annual international firms in London focus, which includes submissions from most major foreign practices operating in the Square Mile.  The publication said the results come amid mounting attention on the prospects for US/UK unions. 

The draft states that the policy changes are driven by events in the marketplace. 

“Advances in technology abnd client demand have driven increases in globalization of the practice of law.  U.S. lawyers increasingly seek to represent clients in other countries, just as non-U.S. lawyers seek to provide legal service in the U.S.,” according to the report.

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