Chad Learned, A Globalized Legal Profession

For generations, citizens of the world dealt almost exclusively with others in a relatively small geographic area. The rules of law and custom that guided interactions among them could be well served by local lawyers. As the railroad and other technologies made traveling to distant areas more feasible, citizens' need for advice about the law in foreign states grew. This growth has continued with the introduction of the telephone, air travel and now electronic data exchanges. Many now need advice about the law in countries throughout the world, as well as international agreements and global conventions.
One of the main goals of all legal systems is that clients receive competent representation. However commendable this may be, not allowing lawyers to practice law in a foreign country may (assuming they are competent to do so) create an enormous disservice to those clients.

The paper begins with a description of the roles played by legal professions throughout the world. Those described are but a small subset of the vast range of roles that lawyers play. It next discusses the requirements of the American and Japanese legal systems for certification as a legal professional. There is also discussion of the barriers facing legal professionals in their attempt to adequately serve a client. Each legal system prescribes policy reasons why foreign lawyers are not allowed to represent clients. Finally the paper proposes solutions to ensure clients obtain competent legal services.

II) Legal Advising by Lawyers

The American Bar Association requires lawyers zealously to represent their client's interest.1 However with so many barriers to practicing in a foreign jurisdiction, lawyers are unable to serve their clients' needs in a global economy.
Lawyers are asked to fill a multitude of roles for their clients. Clients' needs range from advice for local clients about foreign law to advice to foreign clients about local law. However what the client needs and what the lawyer is licensed to practice are two different things. An American lawyer cannot advice a client on legal matters outside of the lawyer's jurisdiction, except in cases of an emergency.2 And yet the time, money and effort spent by his client in finding and establishing a trusting relationship with a new lawyer can be overwhelming. In some instances these requirements undoubtedly discourage some clients from seeking the needed legal services from anyone.

Lawyers, no matter their jurisdiction, perform virtually the same work. To address the legal issues they rely on previously encountered similar situations or seek advice from a colleague. They must recognize the legal issues, research and then interpret and provide recommendations to their client.

A) Lawyers as Legal Advisors

Typically, lawyers provide advice on the basis of the law of their domestic jurisdiction. Increasingly, specialization allows some lawyers to become experts in a particular subject matter in foreign as well as their domestic jurisdiction. The knowledge gained of a foreign jurisdiction could well result in some lawyers becoming as competent in the specialty as a lawyer licensed in that foreign jurisdiction.

Advising clients on foreign law can be complex and difficult. A lawyer either must be able to read and understand the law in the language of the foreign jurisdiction or have it translated. On the other hand, if an officially approved English language translation is available in a foreign jurisdiction's law, it may well be no more difficult than interpreting one's own domestic law. If a lawyer is able to provide a quality service to his clients, and the clients are satisfied with the end product, lawyers should not be limited to a single jurisdiction.

B) Lawyers as Arbitrators and Mediators

Lawyers do not simply act as legal advisors they may serve as an arbitrator or mediator. Arbitration is a procedure in which the parties, to one or more arbitrators whose decision about the dispute is then binding, submit a dispute. Once the parties have freely agreed to arbitration, they cannot unilaterally withdraw. The parties may design the procedure they wish to follow. The New York Arbitration Convention and the Swiss Arbitration Convention are two of the most widely used. Clients use lawyers to arbitrate and mediate disputes based on foreign procedure, because they are more flexible and provide substantial value over domestic procedures.

C) Lawyers as Watchdogs

Lawyers increasingly take proactive positions regarding clients' needs. They may act as watchdog for newly enacted laws. If a lawyer is limited to advising a global business client on the laws of the lawyer's jurisdiction, they will be disserving the needs of that client.

D) Lawyers as In-house Counsel

Multinational companies hire lawyers to serve as in-house counsel. The responsibilities of such lawyers include the provision of advice on every aspect of a company's operations. This could include advice on a contract to sell widgets in Chile or to buy real estate in China where a new factory is to be built. Legal expenses would be astronomical if the in-house counsel could only advise regarding the law of the jurisdiction an individual lawyer holds a license. This would require a multinational firm to hire hundreds of in-house lawyers (one from each jurisdiction in which they do business with).
In a global marketplace lawyers cannot be limited to advising clients on the laws of only one jurisdiction. Lawyers take on roles from advisors, to arbitrators, to proactive watchdogs. Clients demand that a lawyer provide the advice requested when sought. If a lawyer has to repeatedly tell clients they must seek out additional legal counsel each time an issue arises that touch on the law of a foreign jurisdiction, clients may simply stop asking for the necessary legal advice. This could lead to many unnecessary suits that would have been avoided if only their domestic lawyer was authorized to provide advice about the foreign jurisdiction.

III) Bar Requirements in the United States and Japan

The United States and Japan mandate lawyers to meet specific requirements before offering legal advice. The systems have many similarities and differences. Each require appropriate schooling, passage of competency tests and admittance in a bar association. This process is designed to ensure that clients are served competently. Lawyers in Japan and the United States are expected to interpret and render advice of the law to clients competently and efficiently. The requirements to become a lawyer in the United States and Japan are discussed below.

A) American Bar Requirements

American lawyers begin their legal educational process a year prior to graduating from a four-year college. It begins with studying for the Law School Admission Test (LSAT), required by most law schools before a candidate is considered for admissions. Candidates are not required to complete a specific undergraduate program or pre-law course of study. The American Bar Association does not recommend or provide guidance as to a particular undergraduate major, or courses, that should be taken to prepare one for admissions to law school.3 Once admitted to a law school, normally one accredited by the American Bar Association, students complete a defined curriculum in their first-year and free to explore other areas during the remaining two years. After the student successfully completes a minimum number of credit hours and minimum number of residency semesters, he is conferred with the degree of Juris Doctorate.4

A graduate is not automatically licensed to practice law. He must meet a particular states' bar admission requirements. Admission requirements typically include an application process; a knowledge examination; testing on professional ethics; and a swearing in ceremony. The application process ensures that a candidate has met the educational requirements and is of good moral character. The Supreme Court of the particular state will review the application and provide a certificate of good standing. Typically a state bar examination consists of three sections; state law essays; multi-state performance questions; and a multi-state bar examination section.5 The Multi-state Profession Responsibility Examination (MPRE) measures the candidate's knowledge and understanding of established standards of professional conduct. Each state establishes its own minimum passing grade for the MPRE.6 Once all requirements of admissions are met, the candidate is sworn in and given a license to practice law.

A lawyer must be licensed in each state they provide or offer representation in legal matters to clients. Each state at a minimum requires a prospective legal professional to pass a state bar. Reciprocity is the ability for a state to provide a license to foreign lawyer without requiring the lawyer to complete all bar admission requirements. A lawyer may request reciprocity from one state to another. Each state has specific reciprocity requirements. The reciprocity requirements of North Dakota and Minnesota are the least restrictive; they simply require a valid license be held in another state.7 California the most restrictive states require the applicant to complete the entire bar application and testing.8

B) Japanese Bar Requirements

The process to become an attorney (or bengoshi), public prosecutor or judge in Japan, begins by successfully passing the National Bar Examination. The National Bar Examination is similar to the LSAT. The main difference is that a Japanese legal program requires a candidate to successfully pass the exam. The exam's pass rate is approximately 2.9 percent or 990 candidates per year.9

Successful candidates then attend a two-year training course at the Legal Training and Research Institute, or Shihou Kenshuusho. The Institute is like an American law school, but the course of study is substantially different. The first six months at the institute provides classroom training. A student must decide during this time what type of legal professional they want to be; a lawyer; judge; or public prosecutor. Each status is distinct and no person can hold more than one at a time. The next eight months are spent with a district court gaining experience in civil and criminal law. Next a student spends four months with a law firm before returning to the Institute for six months. During the last six months students are taught the ethical standards of the Japanese legal profession. Once training is completed students must register with the Registration for Practicing Attorneys, or Bengoshi Meibo. Japans Federation of Bar Associations controls the registration process. Candidates are screened by the Admission Council and okayed similar to the American certificate of good standing. Attorneys also register with a local bar association. Each judicial district has a separate local bar association, which a lawyer must choose from. By joining a local bar association the attorney is limited to a single office within that district. However, unlike state restrictions a Japanese lawyer may practice in any jurisdiction.

Alternative ways of becoming an attorney in Japan is by, 1) being appointed a Supreme Court Justice; 2) work for five-plus years in a law-related job and pass the National Legal Examination; or 3) work five-plus years as a law professor.10

IV) Practicing in a Foreign Jurisdiction

A) Foreign Lawyers in the United States

A foreign lawyer has basically three options if they wish to practice law in the United States. First they may seek dual admission through the same process as an individual wanting to become a lawyer in the United States. Second they could be employed by or consult for either a law firm or company. Finally they can seek licensing as a foreign legal consultant.
It is impractical for a lawyer seeking to advice a client on a lease in the United States to go through the procedures required by a state bar association for licensing. The second method is more practical because there are no special licenses or schooling required. The foreign lawyer will be limited to advising clients on legal matter pertaining to the lawyer's domestic jurisdiction only. However if the foreign lawyer wants to develop a long-term association as an attorney the first or third solution is preferable.

The foreign attorney may consider obtaining a license and establishing themselves as a foreign legal consultant. This is a desirable because one does not have to take the bar examination of the state that they are advising clients in. They are limited in the responsibilities they may undertake. The designation as a foreign legal consultant is limited to fifteen states and the District of Columbia.11 Another limitation to this designation is placed on US lawyers hiring or forming associations with a foreign legal consultant by the ABA Model Rules 5.5 that prohibits lawyers from assisting a person in the unauthorized practice of law. It is not clear whether the rules would prohibit these relationships, when the rules do not prevent multijurisdictional associations among lawyers admitted to different states.

B) Foreign Lawyers in Japan

United States lawyers needing to serve clients in Japan for the most part was impossible until recent years. Foreign lawyers were limited in their legal capacity as a legal trainee for a Japanese law office. The title of gaikokuho jimu bengoshi or foreign office-work attorney was created in 1986.12

The Japanese legal system places restrictions on foreign attorneys such as, limiting lawyers to advising clients only on the laws of their own jurisdiction; prohibition from representing clients in court or arbitration; barring the formation of a partnership with a Japanese firm; preventing foreign lawyers from hiring bengoshi; mandating foreign lawyers have at least five years of legal practice in their home country. In addition the Ministry of Justice and Nichibenren (Japan Federation of Bar Associations) must approve all foreign lawyers. The latest changes to these restrictions came in 1994. Foreign lawyers are still limited to advising clients on the law of their own jurisdiction, but are allowed to establish joint ventures with a Japanese firm.13 These special joint companies are referred to as tokutei kyodo jigyo. The joint ventures can hire foreign and domestic lawyers. Japan has come along way in providing a foreign lawyer with the opportunity to meet their clients' needs, from their closed-door policy of the past.

V) Policy Reasons for Bar Requirements

Bar associations evangelicize two main policy arguments for limiting multijurisdictional practice of law. The first policy argument is, multijurisdictional lawyers may not be able to adequately and competently serve their clients' needs. The second issue is determining how to discipline a lawyer. Both are adequate concerns in allowing lawyers to practice multijurisdictional law, but should not be a barrier.

A) Public's Interest

Lawmakers and judges in the United States are concerned with the public's well being if foreign attorneys were allowed to provide legal services.14 Are we really protecting the public's best interest? The public is best served when they can seek out a competent product or service in the market place for the price they are willing to pay. An individual with a multijurisdictional issue does not want a lawyer who only understands the law of one jurisdiction, but one that is knowledgeable and competent in all jurisdictions. Foreign attorneys not licensed in the domestic jurisdiction, but having superior legal knowledge and skills would better serve clients than those who are only familiar local law. Clients are not given the choice because the foreign non-licensed lawyer who maybe superior to the domestic lawyer is prohibited from offering advice in the client's domestic law.

The World Trade Organization has acknowledged the need for less regulation on lawyers working in foreign jurisdictions for the purpose of, "making it easier for lawyers and law firms to provide services . . . to clients in international transactions."15 It also stated that the obstacles to multijurisdictional lawyering, "stems from the national character of each country's legal system and the need to demonstrate knowledge and competence in the law of the jurisdiction in order to become licensed."16 A lawyer may be an expert in the law of both jurisdictions, but without meeting the licensing requirements of each, it is illegal for him to provide legal services outside his own jurisdiction.

The prevalent restriction limiting multijurisdictional practices by the majority of jurisdictions is based on the idea that only domestic lawyers can competently serve clients with domestic law problems. This is a legitimate concern that should be addressed in establishing licensing requirements. However some jurisdictions have non-competency limitations that do not concern the lawyer's ability to adequately serve clients.

Many jurisdictions do not give credit for training received prior to seeking admission in a foreign jurisdiction. Japan requires a foreign lawyer to practice for five years in his licensed jurisdiction before practicing in there. A lawyer licensed and practiced in Iowa for only 4 years and working for ten additional years in London would not be allowed to seek admission as a gaikokuho jimu bengoshi. No jurisdiction has been able to point to any statistical evidence that foreign-trained lawyers commit more legal malpractice than do domestic lawyers.17

Some state bar associations have non-competency requirements. State bar associations in some jurisdictions still require that the lawyer establish a presence in the state by opening an office within the jurisdiction.18 Until 1985, some state bar associations went even further requiring lawyers to meet a residency standard.19 The New Hampshire residency standard, later struck down by the state Supreme Court, required that a lawyer be a resident of the state. This meant that a person living just over the boarder in Vermont and being a resident of Vermont could not serve as legal counsel for his neighbor residing in New Hampshire if the subject matter pertained to New Hampshire law.

B) Effective Disciplinary Procedures

Two questions arise when a lawyer providing multijurisdictional services misbehaves. Who will determine if the behavior constitutes misconduct and how will he be disciplined? Bar associations establish a code of conduct that legal professionals are expected to follow. The American Bar Association has prescribed a set of guidelines that they recommend be adopted by each state called the Model Rules of Professional Conduct. The cannons of ethics were the first attempt to establish standard guidelines. The cannons were short and not very detailed. They were a way to establish a standard and not a formal system of rules. These cannons developed into the Model Code a more formalized set of guidelines. The Model Rules are a revised version of the Model Code of Professional Conduct. The Model Code had been adopted with little change by all states. The majority of states have now adopted the Model Rules.

Each state is responsible for enforcing the version of the Model Rules or Model Code that was adopted by their Supreme Court. A recent change to the Model Rules was added in an attempt to deal with multijurisdictional practice of law. Model Rule 8.5 was enacted, but is extremely limited to dealing with interstate questions of law and not transborder questions.20 This change shows a realization of the problem that exists among the individual states. Bar associations need to develop this change even further to encompass transborder multijurisdictional practice of law.

The discussion of these concerns by legal professionals is a step in the right direction. The seriousness of them will only grow, as clients demand legal services spanning multiple jurisdictions. The legal profession must seriously consider solutions to these issues before they become a daily reality. The paper next suggests possible solutions to the multijurisdictional problem.

VI) Solutions for Multijurisdictional Limitations

With an understanding of the problems clients and lawyers are facing, you realize a solution needs to be developed. Bar associations are extremely slow in establishing and changing licensing requirements for foreign lawyers, to allow clients a choice in legal counsel. Some solutions exist, but are very tedious, like meeting the licensing requirements through the formal process of schooling and examinations. Yet other solutions are out there and waiting to be explored.

A) Temporary License

The first possible solution available to jurisdictions and used in the United States is that of a temporary license. This temporary license would be broader than that permitted in the United States. Many states allow an American lawyer from another state to represent a client on a limited basis in their jurisdiction. However this temporary license is not available to foreign lawyers not licensed in another state. If this temporary license were to be expanded to include foreign lawyers, yet limited to specific legal matters, jurisdictions could satisfy the particular needs of a client while limiting the scope of the foreign lawyer's activities.

A jurisdiction may even place competency requirements on the ability to obtain the temporary license. The competency requirements could relate to a subject matter that the lawyer has particular expertise in or has the ability to gain the necessary knowledge required. The American Bar Association Model Rules allow a lawyer to undertake representation of a client in a particular subject matter that the lawyer has no knowledge of, if that lawyer can gain the knowledge necessary to adequately meet the client's needs.21 The ability of a lawyer to gain the knowledge necessary to serve ones clients would ease the concern of how best to serve the public's interest.

B) Global Bar Association

Secondly, establishing a worldwide bar association with the ability to license a lawyer to practice in multiple jurisdictions could alleviate many concerns. The association could establish standardized tests to demonstrate a lawyer's aptitude to serve clients. These aptitude tests could be limited to subject areas, similar to patent bars in many countries. A lawyer who could demonstrate the required competency would be licensed to practice in that area of law only. This would allow foreign legal systems control over foreign lawyers, alleviating the worries associated with giving foreign lawyers free reign to represent clients on any legal matter.

A worldwide bar association would serve two important concerns expressed by many legal systems. The first concern of providing competent legal services would be diminished due to the control the bar association would have over licensing. The second concern of disciplinary measures would be met, because the bar association would have the ability to revoke licenses for violators a standard pronounced by either this bar or a jurisdiction's bar.

C) Partnering

Until recently Japan had not allowed foreign lawyers to partner with Japanese lawyers (Bengoshi). Partnering is an extremely successful option. Allowing foreign and domestic lawyers to partner, jurisdictions could lesson the worry of incompetent lawyers, because domestic lawyers in the jurisdiction would oversee the work of foreign lawyers. This approach also meets the needs of the client, by allowing the trusted relationship to continue, seamlessly across offices. It would also not force a client to waste time and money finding competent legal assistance or leveraging the present lawyers network for the fulfillment of current needs.

Partnering places pressure on local attorneys to ensure that the work of their foreign partner meets the standards of the local jurisdiction. If their standards are not met the local bar will sanction the domestic lawyer for the work of their foreign partner. This type of arrangement will ensure quality client services.

VII) Conclusion

A global economy demands lawyers to act as guides and navigate clients through its vast legal systems. Transactions are no longer isolated to particular geographic areas, but touch multiple jurisdictions simultaneously. The barriers to practice in the Japanese and American legal systems have decreased in recent years, but are still inadequate to meet the ever-changing needs of global clients. Bar associations have valid and invalid concerns, which perpetuate the existence of these barriers. Through solutions that are being tested today and the solutions explored in this paper, the present concerns can be guarded against and overcome. With any system of regulation, if it does not change with the times, the safety provided by the regulations will cease to be effective and become fatal to the public and legal professionals they were designed to protect.

VIII) Endnotes

1. "The lawyer should act with dedication and commitment to the client's interests and with zeal in advocacy on the client's behalf." Comment to ABA Model Rule 1.3.

2. "In an emergency, a lawyer may assist a client, . . . if referral to or consultation with another lawyer would be impractical. The assistance should not exceed what is reasonably necessary to meet the emergency." Comment to ABA Model Rule 1.1.

3. American Bar Association Website (discussing the students preparation t for law school), available at http://www.abanet.org/legaled/prelaw/prep.html#Preparation for Legal Education.

4. American Bar Association Standard 304: Course and Residence Credit, available at http://www.abanet.org/legaled.

5. Iowa Judiciary Website (discussing the Iowa bar examination format), available at http://www.judicial.state.ia.us/regs/barinfo/barexam.asp.

6. National Conference of Bar Examiners Website (discussing the minimum passing score for each state requiring the MPRE), available at http://www.ncbex.org/tests/mpre_set.htm.

7. North Dakota State Bar Association's Website (discussing foreign lawyer reciprocity requirements), available at http://www.court.state.nd.us/Rules/Admission/frameset.htm and Minnesota State Bar Association's Website (discussing foreign lawyer reciprocity requirements), available at http://www.ble.state.mn.us/rules.htm.

8. California State Bar Association's Website (discussing the admission requirements to obtain a license to practice in California), available at http://www.calbar.org/admissions/doc/2admrule.htm.

9. Japan Today Website (statistic on Japan's National Bar Examination passage rate), available at http://www.japantoday.com/gidx/news155562.html.

10. Discussing alternative means than schooling in obtaining a license as a bengoshi, See generally http://www.kitahama.or.jp/English/Legproj.htm.

11. Kenneth S. Kilimnik, Lawyers Abroad: New Rules for Practice in a Global Economy, 12 Dick. J. Int'l L. 269, 318 (Winter 1994).

12. Susan MacKnight, Big Could Be Bigger: U.S. Farm And Food Sales To Japan, JEI Report No. 28A, (July 26, 1991).

13. Douglas Ostrom, Yaohan Goes Bankrupt, JEI Report No. 37B, (October 8, 1993).

14. Fla. Bar v. Brumbaugh, 355 So. 2d 1192 (Fla. 1978).

15. World Trade Organization Council for Trade in Services, Special Session, Communication from the United States on Legal Services, Doc#00-5557, S/CSS/W/28, (Dec. 18, 2000), available at http://docsonline.wto.org/gen_search.asp.

16. Id.

17. Wayne J. Carroll, Innocents Abroad: Opportunities and Challenges for the International Legal Advisor, 34 VAND. J. TRANSNAT'L L. 1097, 1130 (Oct. 2001).

18. Mary C. Daly, Resolving Ethical Conflicts in Multijurisdictional Practice-Is Model Rule 8.5 the Answer, An Answer, or no Answer at All?, 36 S. TEX. L. REV. 715 (1995).

19. The Piper case essentials brought an end to the residency requirement in the United States. Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985).

20 Detlev F. Vagts, Professional Responsibility in Transborder Practice: Conflict and Resolution, 13 Geo. J. Legal Ethics 677, 689 (Summer 2000)

21. "A lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation." Comment to ABA Model Rule 1.1

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