September 23, 2019 Top Story

Foreign "Special Legal Consultant" Rules in Question

Case highlights concerns over licensing foreign advisors in the United States

By Geoff A. Gannaway

The recent revocation of a Sudanese lawyer’s license to advise U.S. clients on his home country’s laws highlights potential weaknesses in the rules governing foreign attorneys practicing domestically, according to ABA Section of Litigation leaders.

The revocation of a Sudanese lawyer's license brought to light one of issue of many concerning the practice of foreign attorneys on U.S. soil

The revocation of a Sudanese lawyer's license brought to light one of issue of many concerning the practice of foreign attorneys on U.S. soil

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In revoking the license of this “special legal consultant,” the District of Columbia Court of Appeals upheld the D.C. Board of Professional Responsibility’s decision that sanctions similar to disbarment should apply, given that the Sudanese attorney falsely held himself out as a D.C. attorney. Section of Litigation leaders note that this is just one concern surrounding the licensing programs a number of states have in place for foreign attorneys seeking to practice in the United States.

ABA Model Rule and Several States Allow Licensing for Foreign Legal Consultants

In 1993, the ABA approved a Model Rule for the Licensing and Practice of Foreign Legal Consultants. As explained in a report issued by the ABA Commission on Multijurisdictional Practice, the Model Rule addressed an imbalance between U.S. lawyers, who could practice in many other countries, and foreign lawyers, who generally could not provide advice in the United States regarding the law of their own countries. The Model Rule provides that foreign lawyers may, without passing any examination, provide legal advice upon obtaining a license from a court within a particular jurisdiction. Such consultants must limit their role to the provision of advice on the law of their own countries.

Section leaders observe that the foreign consultant role “is a commonplace arrangement. If there are people available who are knowledgeable in the law of a foreign country, they can play a useful role,” says Phillip A. Cole, Minneapolis, MN, cochair of the Section’s Attorneys’ Liability Subcommittee of the Professional Liability Committee. Dozens of U.S. states license foreign legal consultants, according to a compilation of rules from the ABA Center for Professional Responsibility Policy Implementation Committee.

D.C. Court Disciplines Consultant with Sanctions Parallel to Domestic Attorney Punishment

In the District of Columbia case In re Elhillali, the appellate court considered a consultant’s challenge to sanctions assessed against him. The Sudanese lawyer had previously received a “special legal consultant” license under the court’s D.C. Rule analogous to the Model Rule. Under the rule, the consultant could provide legal services related to Sudanese law, but could not render advice on the law of any U.S. jurisdiction, appear on behalf of a client in any court, hold himself out as a member of the D.C. Bar, or use any title other than “special legal consultant.”

The consultant ran afoul of these restrictions by falsely representing himself as a lawyer licensed to practice in the District of Columbia, and on at least ten occasions entering an appearance as an attorney representing clients in immigration cases. In addition, the rule expressly subjects consultants to the D.C. Rules of Professional Conduct, which the Sudanese attorney violated by engaging in theft, dishonesty, and the unauthorized practice of law.

The D.C. court ultimately concluded that sanctions for consultants should mirror those that attorneys licensed domestically would receive for similar misconduct. Because the consultant’s conduct in this case would warrant disbarment if he were a D.C. attorney, the court determined that revocation of his consultant license was the appropriate, functionally equivalent sanction. Similarly, because most disbarred attorneys may seek readmission to the bar after five years, the court held that the consultant could reapply after that same period.

Should the Rules Be Revised to Better Protect Clients?

The appellate court in In re Elhillali reached the right decision, according to both Cole and Robert E. Poundstone IV, Montgomery, AL, cochair of the Section’s Ethics & Professionalism Committee. But Poundstone suggests that the consultant should never have received his license in the first place. The D.C. Rule requires each applicant to provide a certificate from an authority in the foreign country certifying good standing as an attorney. Poundstone notes that the consultant apparently did not comply with this obligation, as a footnote in the court’s opinion reveals that the consultant had not yet received his Sudanese law license when he obtained his consultant license.

“This raises a red flag to me about the ability of the bar to properly examine the fitness of the special legal consultant,” says Poundstone. The opinion does not specify whether or not the consultant provided the required Sudanese documentation prior to receiving his consultant license. But even if a foreign lawyer does provide such paperwork, the licensing jurisdiction may not have the ability to verify the purported status in the other country, Poundstone explains, because “the channels available to obtain necessary background information from the applicant’s home country bar or regulatory entity can be limited.”

Because jurisdictions issuing consulting licenses rely upon another country’s vetting process, Poundstone says he has “concerns whether a bar can consistently evaluate the fitness of a special legal consultant applicant to a sufficient level to protect the potential clients.” To address this concern, Poundstone suggests that the ABA and licensing jurisdictions revisit the existing rules. “There should be consideration of a minimum competency exam for consultants to pass, knowing that not all countries have the same level of licensing requirements and oversight,” he recommends.


Geoff A. Gannaway is a contributing editor for Litigation News.

Hashtags: #MultijurisdictionalPractice, #ForeignLegalConsultant, #SpecialLegalConsultant

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