Changes to Model Rules Make it Easier for Foreign-Based Attorneys to Practice in the United States
As the practice of law (and business generally) becomes more global, jurisdictions are amending their Unauthorized Practice of Law rules to allow lawyers admitted outside the United States ("foreign lawyers") to practice within the United States under certain circumstances. The changes are especially significant for in-house attorneys who may be based outside the United States.
The American Bar Association's Commission on Ethics 20/20 (the "Ethics 20/20 Commission") is leading the charge to address the globalization of the legal practice. At the ABA Midyear Meeting in February 2012, the ABA House of Delegates approved the Ethics 20/20 Commission's amended Resolutions 107A, 107B, and 107C, which relate to the practice and admission of foreign lawyers within the United States. (The House of Delegates also approved Resolution 107D, which relates to choice of law provisions for disciplinary authority.)
Resolution 107A amends the Model Rules of Professional Responsibility Rule 5.5 to allow foreign lawyers to practice as in-house counsel for corporations without admission, so long as their U.S. practice is limited to representing their corporate client. See American Bar Association Resolution Revised 107A. Notably, however, if the foreign lawyer's practice requires him or her to opine or give advice related to U.S. law (whether federal, state or local law, collectively, "U.S. law"), the foreign lawyer must consult with a U.S. lawyer who is licensed and authorized by the jurisdiction of the law in question.
The prior version of Model Rule 5.5 permitted lawyers 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. But a similar rule did not exist for lawyers admitted in foreign jurisdictions.
Resolution 107B amends the Model Rule for Registration of In-House Counsel to make it consistent with the newly revised Model Rule 5.5. See American Bar Association Resolution Revised 107B.
Resolution 107C amends the Model Rules for Pro Hac Vice Admission to allow for the admission of a foreign lawyer in litigation pending in U.S. courts. Specifically, the new rule provides that a court or agency may allow for pro hac vice admission of a foreign lawyer "in a defined role as a lawyer, advisor or consultant in that proceeding with an in-state lawyer, provided that the in-state lawyer is responsible to the client, responsible for the conduct of the proceeding, responsible for independently advising the client on the substantive law of a United States jurisdiction and procedural issues in the proceeding, and for advising the client whether the in-state lawyer's judgment differs from that of the foreign lawyer." See American Bar Association Resolution Revised 107C.
Resolution 107C goes on to outline a list of factors the court or agency should consider when ruling on a pro hac vice application, including the legal training of the foreign lawyer, the extent to which the matter relates to the law of the jurisdiction where the foreign lawyer is admitted, the foreign lawyer's familiarity with applicable U.S. law, the extent to which the foreign lawyer's relationship with the client or familiarity with the relevant facts and circumstances will aid resolution of the matter, the foreign lawyer's English language ability, and the extent to which the scope of the foreign lawyer's involvement can be defined.
Some jurisdictions chose not to wait for changes to the Model Rules to become official before amending their own rules. Indiana and Georgia both recently amended their respective Rules 5.5 to allow foreign lawyers to serve as in-house counsel without seeking formal admission. See, e.g., Order Amending Ind. Rules of Prof'l Conduct, Cause No. 94S00-1205-MS-275h (Ind. Jan. 15, 2013).
Given that the Model Rules are not binding unless and until adopted by the relevant U.S. jurisdiction, the burden remains on foreign lawyers to ensure that their work outside of their home jurisdictions does not violate the local ethics rules.
Cara E. Greene is a partner at Outten & Golden LLP, where she represents employees, partners and lawyers in litigation and negotiation in all areas of employment and partnership law, including executive and professional contracts and compensation; disability, pregnancy, and family responsibilities discrimination; and class actions. She is the Employee Co-Chair of the Section's Ethics and Professional Responsibility Committee, and is also a member of the Employment Rights & Responsibilities Committee.
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