TWO-WAY STREET

BY NORKA M. SCHELL

As business has become more international in scope, American business officials wish to be represented by law firms capable of advising them concerning laws of foreign countries. To meet these expectations, more U.S. law firms have sought to gain international legal expertise. Some of these firms have formed partnerships and similar affiliations with lawyers from other countries. 

Growing numbers of foreign-based law firms have acquired expertise in the law and practices of jurisdictions foreign to them by hiring locally-licensed lawyers to help advise their clients. Some of these foreign-based law firms either have hired U.S. lawyers or merged with U.S. law firms in order to provide legal advice in matters dependent upon U.S. law.See Laura Pearlman, Global 50, available at http://www.lawjobs.com/surveys/global150.html; Sean Farrel, London Letter, The Long Wait: A Peer. Meanwhile, Their U.S. Strategies Are A Muddle, THE AMERICAN LAWYER (Nov. 2000), available at WESTLAW, 11/2000 AMLAW.61.

Rhonda McMillion, an editor of ABA, wrote in January 2011 ABA JOURNAL, "ABA urges Obama administration to ask India to ease restrictions on foreign lawyers. It is urging the Federal Government to take steps to ensure that U.S. lawyers have appropriate access to the legal services markets of its key trade partners.

The ABA's effort is another nod to the growing impact of globalization. A global economy is making it increasingly important for U.S. lawyers to be able to give advice and other assistance to clients around the world.

ABA President Stephen N. Zack recently focused on the importance of access to American lawyers to clients in India, the 14th-largest trading partner with the United States. Zack outlined the issue in a Nov. 3 letter to President Barack Obama and urged him to raise it during his trip to India, which began Nov. 6. Zack said the provision of legal services is critical to increasing  the level of trade between the United States and India. "Such services of lawyer well-versed not only in the laws of the United States and India by also cross-border transactional matters are plainly essential for such increase."

India, for its part, has sent conflicting signals on its willingness to accept foreign lawyers. In March, the United States and India signed the Framework for Cooperation on Trade and Investment to strengthen bilateral cooperation and build on  the rapidly growing  trade between the two countries, which has doubled in the past five years. The framework includes the launch of an initiative called Integrating U.S. and Indian Small Business into the Global Supply Chain, intended to expand trade and job creation for U.S. and Indian companies.

In September, however, the Bar Council of India announced that it had decided not to permit foreign lawyers in the country; although the decision is still under final study. In addition, a private Indian lawyer has filed a lawsuit in the High Court of Madras seeking to restrict travel to India by foreign lawyers for purposes of giving advice about their domestic laws to Indian clients or advising clients from their own countries about doing business in India (It does sound familiar.)

Zack requests that President Obama urge the Indian government to adopt a rule similar to the ABA's Model Rule for Licensing and Practice by Foreign Legal Consultants, which has been adopted by more than 30 U.S. jurisdictions.

The ABA's Model Rule for Licensing and Practice by Foreign Legal Consultant allows a licensed lawyer from outside the U.S. to maintain an office in this country (U.S.) after registering with the local bar or court. This allows the lawyer to advise clients about the law of their home country without passing any state bar exams in the United States. The ABA supports principals under which U.S. lawyers may secure the right to practice from offices abroad..."

It is ethically permissible for a foreign lawyer to practice in the United States and for U.S. lawyers to  form partnerships or other entities to practice law in which foreign lawyers are partners or owners. As the Congress considers other free trade agreements with other countries, the ABA will continue to promote enhanced foreign market access to U.S. lawyers. See Governmental Affairs Office publication.

Cross-Border Legal Work

Posted By: Norka M. Schell 
October 15, 2010

I have observed that law practice is being reinvented at an ever-accelerating speed the world over. " Legal services are being routinized, commoditized, outsourced, disaggregated, reassembled, computerized, and unbundled-among associates, law firm partners, solo practitioners, contract lawyers, paralegals, law consultants, temporary law workers, websites, and online share platforms...

The field of the legal profession has been benefitting from a proliferation of research by scholars seeking to understand the many changing dimensions of the legal profession. Researchers have been drawing on a broad range of social science disciplines, methodological approaches, and multilingual proficiencies to investigate legal practice(s) in a wide variety of geographic settings...

There is a growing body of literature on what lawyers actually do and the ways in which legal services are delivered. Robert Rosen has argued that  "we're all consultants now" as clients motive lawyers to alter their organizational strategies.(1)"

"The legal profession is now being impacted by the WTO and GATS regulations. Lawyers and other members of the legal profession are not  immune from the forces of modernization and globalization.  Yet to date limited attention has been paid to the peculiarities of the global law firms and the foreign consultants despite the fact that the effective organizations of global law firms and the foreign lawyer are essential to deal with regulatory challenges and to allow transactional lawyering, the opening up of cross-border business opportunities and ultimately the diffusion of Anglo-America styles of legal service.(2)"

There are a number of countries including Japan, Brazil, France, Belgium, Israel, England, Canada, Federal Republic of Germany, and United States which permit foreign consultant to engage in a limited form of practice of law in these countries.

In May 2007, the American Bar Association (ABA) published "Eye on Ethics" article addressing the Formal Opinion 01-423 Forming Partnerships With Foreign Lawyers. The headline opinion states:   " It is permissible under the Model Rules for U.S. lawyers to form partnerships or other entities to practice law in which foreign lawyers are partners or owners, as long as the foreign lawyers are members of a recognized legal profession in a foreign jurisdiction and the arrangement is in compliance with the law of jurisdictions where the firm practices..."(3) 

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(1)Tanina Rostain and John Flood 
(2) Jonathan Beaverstock, Daniel Muzio, Peter J. Taylor, James Faulconbridge
(3)htt://www.abanet.org/media/vouraba/200705/article11.html last visited 10/10/2008