Legal Ethics

New York state considering proposal to expand right of foreign-based attorneys to practice there

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New York is weighing a proposal that would allow foreign attorneys to temporarily practice law in the state.

The Wall Street Journal Law Blog reports that New York could become the 10th state to allow foreign lawyers to provide general legal services on a limited basis. New York already allows foreign litigators to represent clients in court on a specific case with the approval of the presiding judge. The proposal, which must be approved by the state judiciary’s rule-making board, would expand the type of work foreign attorneys may perform in New York to include nonlitigation matters, such as transactional work. According to Law Blog, the proposal would also allow American lawyers admitted in another state to practice temporarily in New York.

“In light of the increasing globalization of business and law practice, New York’s role as a center of world commerce would be enhanced by permitting lawyers from other jurisdictions to appear in this slate to work on transactional or short-term litigation-related matters (so-called “fly-in. fly-out” events),” the New York State Office of Court Administration said in a letter (PDF) seeking comments on the proposed rule. The comment period ends Nov. 3.

According to Law Blog, noted legal ethics commentator and New York University law professor Stephen Gillers has already commented on the rule. In a letter (PDF), Gillers stated that the rule should not contain a definition of what a “temporary practice” entails, because having a bright-line test was unworkable.

“A lawyer may be here temporarily for many months during the course of preparing for and participating in a litigation or arbitration,” Gillers wrote. “Another lawyer may be here a week to negotiate a contract.”

Instead, Gillers felt that the rule should devise clearer standards and requirements for what types of foreign lawyers can practice here, noting that the proposed rule applies to any lawyer admitted to practice in his or her country of origin. “I suggest this language is too broad and creates a serious risk to the public. In some countries, a person may practice law without taking a bar examination, without a legal education, without submitting to a character investigation, or with no effective professional regulation.”

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