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ABA Policy on International Trade

ABA Policy

August 2016 - Amendment of Rule 5.5 of the ABA Model Rules of Professional Conduct and the ABA Model Rule for Registration of In-House Counsel:  Model Rules amended to include language specifying that the court of highest appellate jurisdiction may, in its discretion, allow foreign in-house lawyers who do not meet the ABA definition of foreign lawyer because they cannot be “members of the bar” to be able to practice as in-house counsel in the U.S. and to be so registered.

August 2013 – International Legal Regulatory Information Exchange:  Urges the highest courts of states and lawyer regulatory authorities to coordinate with their foreign regulatory counterparts and enter into voluntary arrangements to facilitate the exchange of relevant information, consistent with the jurisdictions’ rules, and adopts the Guidelines for an International Regulatory Information Exchange, dated August 2013. 13A104

February 2013 – Model Rule on Pro Hac Vice Admission: Model Rule amended to provide judges with guidance about whether to grant limited and temporary practice authority to foreign lawyers to appear in U.S. courts. 13M107C

February 2013 – Model Rule for Registration of In-House Counsel: Model Rule amended to permit a foreign lawyer to serve as in-house counsel, but with the added requirement
that the foreign lawyer may not advise on U.S. law except on the basis of advice from a lawyer who is duly licensed and authorized to provide such advice. 13M107B

August 2012 -  Model Rule on Practice Pending Admission: Adopts the Model Rule on Practice Pending Admission, and amends the black letter and Comment to Rule 5.5 of the ABA Model Rules of Professional Conduct, dated August 2012, to enable lawyers to practice in a new jurisdiction while the lawyer actively pursues admission through one of the procedures that the jurisdiction authorizes. Includes a section which provides (subject to limitations) that a foreign lawyer who is already admitted in a U.S. jurisdiction as a foreign legal consultant may continue to practice as such while their application for that form of admission is pending in another U.S. jurisdiction. 12A105D

August 2008 - Trade Negotiations and the Rule of Law: Supports the contribution that the negotiated liberalization of international trade in goods and services, through government-to-government trade agreements, makes to the spread of the Rule of Law, both at the state-to-state level and within participants’ domestic legal systems. 08A108B

August 2006 - GATS Disciplines: Support the efforts of the U.S. Trade Representative to encourage the development of transparency disciplines on domestic regulation in response to Article VI (4) of the GATS requiring the development of “any necessary disciplines” to be applicable to service providers and support the U.S. Trade Representative’s participation in the development of additional disciplines on domestic regulation. 06A105

August 2006  - Model Rule for the Licensing and Practice of Foreign Legal Consultants: Revisions adopted August 2006, including change of name of Model Rule to Model Rule for the Licensing and Practice of Foreign Legal Consultants. 06A301A

August 2002 - Temporary Practice by Foreign Lawyers Inbound to the U.S.: Adopts the Model Rule for Temporary Practice by Foreign Lawyers pursuant to the recommendations of the Commission on Multijurisdictional Practice. 02A201J

August 2002 - Model Rule for the Licensing of Legal Consultants:  Encourages jurisdictions to adopt the ABA Model Rule for Legal Consultants, pursuant to the recommendations of the Commission on Multijurisdictional Practice. 02A201H (In August 2006, the ABA adopted an updated version of the Foreign Legal Consultant rule).

February 2002 -  Market Access for Outbound U.S. Lawyers: Urges the U.S. Trade Representative seek practice rights for "outbound" U.S. lawyers equivalent to the practice rights set forth in the ABA Model Rule for the Licensing and Practice of Foreign Legal Consultants.

February 1999 - U.S. Trade Laws: Urge Congress to provide adequate resources to enable U.S. trade agencies to: (1) implement fully the requirements of U.S. trade laws; (2) enforce vigorously the commitments made under international agreements to the United States by our trading partners to open their markets to our goods, services, investments and intellectual property; and (3) further a "rule based" world trading system through diligent negotiations and active participation in multilateral organizations. 99M100

August 1990 - European Community: Support the European Community's commitment to create a single, integrated market. Urge the European Community to implement measures in such a manner as to ensure effective, nondiscriminatory market access for non-EC-based business entities. Urge that companies organized under the laws of all EC member states are to be treated on an equal basis without regard to the ultimate beneficial ownership of the company. Recommend that measures relating to the integration of the legal profession be designed so as to ensure the preservation of the integrity of the legal profession and the continued recognition of its distinctive characteristics and responsibilities. Recommend that measures adopted by the European Community should not impose or permit restrictions upon the delivery of legal services by members of foreign legal professions that are not objectively required for the protection of the public. 90A307

August 1990 - Foreign Lawyers' Appearance Before Federal Trade Commission: Federal Trade Commission amend Section 4.1(a)(1) of its rules of practice to grant the right to appear before it to foreign lawyers who are authorized to practice before a foreign competition law tribunal or agency that extends reciprocal rights to American lawyers. 90A305

August 1989 - International Arbitration: Favors recognition of freedom of parties to international commercial arbitration proceedings to choose as their representatives in those proceedings lawyers who need not be admitted to practice law in the jurisdiction where the arbitration proceedings take place.

Formal Ethics Opinions

Formal Opinion 01-423: Forming Partnerships with Foreign Lawyers
(September 2001) 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.

Formal Opinion 464: Division of Legal Fees With Other Lawyers Who May Lawfully Share Fees With Nonlawyers (August 19, 2013) Lawyers subject to the Model Rules may work with other lawyers or law firms practicing in jurisdictions with rules that permit sharing legal fees with nonlawyers. Where there is a single billing to a client in such situations, a lawyer subject to the Model Rules may divide a legal fee with a lawyer or law firm in the other jurisdiction, even if the other lawyer or law firm might eventually distribute some portion of the fee to a nonlawyer, provided that there is no interference with the lawyer’s independent professional judgment.

Formal Opinion 08-451: Lawyer’s Obligations When Outsourcing Legal and Nonlegal Support Services (August 5, 2008) 
A lawyer may outsource legal or nonlegal support services provided the lawyer remains ultimately responsible for rendering competent legal services to the client under Model Rule 1.1. In complying with her Rule 1.1 obligations, a lawyer who engages lawyers or nonlawyers to provide outsourced legal or nonlegal services is required to comply with Rules 5.1 and 5.3. She should make reasonable efforts to ensure that the conduct of the lawyers or nonlawyers to whom tasks are outsourced is compatible with her own professional obligations as a lawyer with “direct supervisory authority” over them.