Legal Ethics

Ethics 20/20 Proposals Would Make It Easier for Foreign Lawyers to Practice in US

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The ABA Commission on Ethics 20/20 released drafts of possible recommendations Tuesday that would make it easier for foreign lawyers to obtain limited authority to practice in U.S. jurisdictions.

But a cover memo (PDF) issued by commission co-chairs Jamie S. Gorelick and Michael Traynor emphasizes that the commission still has not decided whether to submit resolutions on practice by foreign lawyers to the ABA’s policy-making House of Delegates, or what the final version of those recommendations would be.

Those decisions will be made when the commission meets in Washington, D.C., on Oct. 25-26, state Gorelick and Traynor in their memo. Gorelick is a partner at Wilmer Cutler Pickering Hale and Dorr in Washington. Traynor of Berkeley, Calif., is a past president of the American Law Institute.

In the meantime, the commission is seeking comments on its draft recommendations. Those comments may be submitted by Oct. 12 to Natalia Vera, the commission’s senior paralegal, at [email protected].

The commission plans to submit any final resolutions for consideration by the House when it convenes in February during the 2013 ABA Midyear Meeting in Dallas. The House adopted the commission’s first set of recommendations in August at the 2012 Annual Meeting in Chicago.

Two of the draft proposals released Tuesday would apply to foreign lawyers working as in-house counsel in U.S. jurisdictions. One of the proposals would amend Rule 5.5(d) (PDF) of the ABA Model Rules of Professional Conduct, which currently permits a lawyer admitted in one U.S. jurisdiction to provide legal services in another jurisdiction where the lawyer is not admitted to practice if those services are provided to the lawyer’s employer or its organizational affiliates, and are not services for which the second jurisdiction requires pro hac vice admission.

The lawyer also may provide those services if authorized by another law of the second jurisdiction or by federal law. The amendments essentially would apply Model Rule 5.5 to a foreign lawyer who is a member in good standing of a recognized legal profession in a foreign jurisdiction whose members are admitted to practice. In addition, the foreign lawyer only may advise the client on the law of U.S. jurisdictions only in consultation with an American lawyer.

The ABA Model Rules are the direct basis for lawyer conduct rules in every state except California. Forty-four jurisdictions have adopted some version of Model Rule 5.5. since it was amended by the House of Delegates in 2002 to permit U.S. lawyers to engage in more cross-jurisdictional practice.

A related draft proposal (PDF) developed by the Ethics 20/20 Commission would amend the ABA Model Rule for Registration of In-House Counsel to include foreign lawyers working as in-house counsel in the United States.

A foreign lawyer would be required to register with the appropriate regulatory authority in the U.S. jurisdiction within 180 days of beginning work there. The lawyer may not advise the client on law other than international law except in consultation with a U.S. lawyer. The registered foreign lawyer also would be subject to the domestic jurisdiction’s professional conduct rules.

A draft report released with the possible amendments notes that six states–Arizona, Connecticut, Delaware, Virginia, Washington and Wisconsin–already have in-house registration rules that give foreign lawyers limited authorization to work for their employers in the United States. Georgia permits limited practice by foreign lawyers, but does not require them to register.

The amendments for foreign in-house lawyers would “provide the corresponding procedural mechanism to regulate the limited practice authority for these lawyers sought in the Commission’s proposal to amend Model Rule 5.5(d),” states the draft report.

A third draft proposal (PDF) released Tuesday by the commission would add a new section to the ABA Model Rule on Pro Hac Vice Admission to allow state courts or agencies to admit a foreign lawyer in a particular proceeding as co-counsel with an in-state lawyer, or to serve in an advisory role in that proceeding.

But the in-state lawyer would be responsible for the conduct of the proceeding and for independently advising the client on substantive law in the U.S. jurisdiction and procedural issues. The new section also contain a number of safeguards and limitations on the scope of the foreign lawyer’s activities. The current version of the Model Rule on Pro Hac Vice Admission applies only to lawyers admitted to practice in U.S. jurisdictions.

The draft report accompanying the proposal notes that 15 states and the U.S. Virgin Islands permit pro hac vice admission of foreign lawyers. The rules of the U.S. Supreme Court provide that a qualified foreign lawyer may be permitted to argue pro hac vice before the justices, and some federal courts of special jurisdiction also have pro hac vice provisions for foreign lawyers.

“It is clear that as communications and commerce have become increasingly globalized so too have clients, their families, businesses, and other assets,” states the report. “As a result, there has been a concomitant increase in litigation in U.S. courts implicating parties, property or businesses located in other countries. Under these circumstances, clients (both institutional and individual) will on occasion need to or wish to seek the involvement of both U.S. and foreign lawyers and thus, when appropriate, want foreign lawyers of their choosing to appear pro hac vice along with their U.S. counsel.”

Last updated 6:30 p.m. Wednesday to clarify that the draft proposals would apply to foreign lawyers working as in-house counsel in U.S. jurisdictions.

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