The ABA works to expand U.S. lawyers’ access to international markets
For decades, the American Bar Association has championed a rules-based, liberalized system of international trade. This commitment is grounded in two core values: advancing the rule of law and enabling U.S. lawyers and firms to serve clients wherever they do business.
Yet many countries maintain regulatory barriers that block or burden U.S. lawyers’ and law firms’ ability to operate abroad through the most effective structures and relationships.
To address this challenge, the ABA—through its Standing Committee on International Trade in Legal Services and other entities—works to press for the removal of these barriers.
As global commerce expands and the demand for cross-border legal services grows, so does the urgency of ensuring U.S. lawyers and law firms can effectively serve their clients through cross-border practices. U.S. clients, both individuals and businesses, expect their lawyers to support them wherever they operate. Meeting that demand requires U.S. lawyers to have meaningful access to international markets. In fiscal year 2023 alone, U.S. exports of legal services were nearly $17.5 billion, compared to $5.3 billion in imports.
In 2002, the ABA House of Delegates approved a resolution urging the Office of the U.S. Trade Representative to seek legal services market access abroad for American lawyers similar to those afforded to foreign lawyers under the ABA Model Rule for the Licensing and Practice of Foreign Legal Consultants. This includes the ability to open physical offices in those countries as well as to employ, be employed by and enter into partnerships with local lawyers. The ABA has regularly engaged with the Office of the U.S. Trade Representative and the Department of Commerce on these issues.
ABA presidents have also raised the issue of removing barriers to foreign legal markets for U.S. lawyers, meeting with leaders of bar associations, members of the judiciary and government officials in other countries. Their destinations have included India, where until recently foreign lawyers and firms were not allowed to establish physical offices; and China, where foreign lawyers are prohibited from conducting arbitration and mediation, and association rights between foreign and Chinese lawyers are restricted. The ABA has also advocated and engaged in discussions with key stakeholders in other important commercial markets—such as South Korea, Brazil, the United Kingdom and the European Union—regarding limitations on U.S. legal services.
Progress on international legal market access often requires sustained engagement and long-term advocacy, as illustrated by the ABA’s 15-year effort in India to support greater access for U.S. and other foreign firms. This included repeated visits by ABA leaders to meet with bar leaders, members of the judiciary, and Indian government officials, as well as appeals to Congress and other U.S. policymakers.
In May, the Bar Council of India, the nation’s legal regulatory body, issued a new rule under which foreign lawyers and firms can apply to open offices and practice foreign law in India. The rule also places significant new restrictions on the entry of foreign lawyers and law firms providing services on a temporary basis through fly-in/fly-out access. Concerns about the rule have been expressed from both foreign and Indian lawyers and law firms. The rule contains many ambiguous provisions and appears to make establishing an office impracticable for most foreign firms. Of serious concern to many U.S. firms is a provision that would require foreign lawyers providing fly-in/fly-out services to disclose to the Bar Council of India the identities of their clients and the legal subject matter, which may conflict with their ethical obligations regarding client confidentiality.
In response to these concerns, the Bar Council of India established a committee of senior Indian advocates to examine the concerns raised, and it proposed holding a conference of Indian law firms in September to hear additional viewpoints. The dissension around the new rule leaves the future of meaningful market access uncertain. The ABA will continue to press for expanded access for U.S. lawyers and law firms while respecting India’s legal framework.
It goes both ways
Just as the ABA advocates for expanded opportunities for U.S. lawyers abroad, it also supports appropriately regulated access for foreign lawyers to practice in the United States. To that end, it has adopted a series of model rules and policies governing the provision of legal services by foreign lawyers and has encouraged all U.S. jurisdictions to adopt them.
As legal practice becomes ever more global, the ability of lawyers to serve clients across borders is not a luxury—it is a necessity. By advancing access to legal services across borders, the ABA continues to uphold its long-standing commitment to the rule of law and a level playing field for the U.S. legal profession worldwide.
This report is written by the ABA Governmental Affairs Office and discusses advocacy efforts by the ABA relating to issues being addressed by Congress and the executive branch of the U.S. government.
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