The State Bar Association of North Dakota Winter 2013 Gavel Magazine | Page 20

ABA REPORT

SBAND ABA Delegate

James Hill

ABA House of Delegates Approves Rules Regarding Foreign Lawyers
The American Bar Association on Monday, February 11, 2013 approved a slate of proposals that would allow foreign lawyers to practice in a limited capacity in U.S. courts and for American companies, recognizing that in a globalized world, the legal profession and its clients need expertise on other countries’ laws. These amendments come after long and oftentimes contentious debate within the ABA and its Commission on Ethics 20/20. Under the resolutions adopted by the ABA’s House of Delegates, foreign lawyers could serve as in-house counsel for American companies and provide advice so long as they worked together with U.S. licensed attorneys, and could be admitted to practice temporarily in U.S. courts under a judge’s discretion and with limitations on the extent of their role. Foreign lawyers would have to meet ABA qualifications, including showing good standing in their home countries and following ethical principles to register. The change was made to provide consistency with the ABA Model Rule for Licensing and Practice of Foreign Legal Consultants, ostensibly to avoid unintended ambiguity and confusion by states wanting to adopt the Rules and those who would then rely upon them (including foreign legal consultants that serve in-house). The ABA Commission on Ethics 20/20 had previously filed Revised Resolutions

107 A & 107 B relating to limited practice authority for foreign In-House Counsel. The original Resolutions provided that foreign in-house counsel could not advise on the law of a U.S. jurisdiction except in consultation with a U.S. lawyer authorized to provide that advice. The Revised Resolutions now provide that foreign in-house counsel cannot advise on the law of a U.S. jurisdiction or of the United States except “based on the advice of a lawyer licensed and authorized by the jurisdiction to provide that advice.” The change was the result of compromise with those who feared a foreign attack on the practice of law in the United States by uncontrolled admission of foreign lawyers. The opposition wanted required involvement of U.S. lawyers with those foreign in-house attorneys. The entirety of the rule changes can be found on the ABA Website by going to http://www.americanbar.org and going to the Center of Professional Responsibility page and viewing the “ABA Commission on Ethics 20/20. They are contained within Resolutions 107 A – D which are identified as follows: Revised 107A (Rule 5.5: Unauthorized Practice of Law; Multijurisdictional Practice of Law) Resolution 107A amended Model Rule 5.5 so that it expressly permits qualified foreign lawyers to serve as in-house counsel while based at their employers’ U.S. offices Revised 107B (Model Rule for Registration of In-House Counsel) Resolution 107B amended the 2008 ABA Model Rule for Registration of In-House Counsel to bring foreign lawyers within the scope of that Rule. 107C as Amended (ABA Model Rule on Pro Hac Vice Admission) Resolution 107C amended the ABA Mode Rule on Pro Hac Vice Admission so that it provides guidance to judges who may be asked to grant pro hac vice admission to qualified foreign lawyers.

107D (Disciplinary Authority; Choice of Law) Resolution 107D amended Comment [5] to Rule 8.5 of the Model Rules of Professional Conduct so that it expressly allows a lawyer and client to specify a particular jurisdiction as the jurisdiction where the “predominant effect” of the lawyer’s conduct will occur for purposes of a choice of law analysis under Model Rule 8.5. These changes are designed to allow clients in the United States the use of qualified foreign counsel while setting appropriate limits controlled by the Supreme Courts of the individual states who adopt the changes. They were driven substantially by what was recognized as an ever-increasing number of foreign companies with substantial United Sates operations and the reality that their legal counsel are often in-house senior level employees of those companies. Under the resolution, foreign lawyers would not be required to consult with U.S. attorneys before giving advice on U.S. law, but would be required to base their advice on discussions with licensed U.S. attorneys. The Section on Litigation offered an amendment that clarified that foreign attorneys could be admitted as lawyers, consultants or advisers in a case, rather than as co-counsel. The new rules provide that judges can define the scope of a foreign lawyer’s involvement in the case and limit a foreign lawyer’s ability to advise clients without first consulting an in-state lawyer. A judge could require in-state lawyers to be present at every hearing and to sign all documents, in more stringent requirements than apply to interstate pro hac vice admissions. Obviously the impact on North Dakota is an unknown but it is likely that these changes will be reviewed and considered for adoption in this jurisdiction as are all of the changes made by the ABA Commission on Ethics 20/20. They are recognition of a dramatically changed legal world.

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The Gavel February 2013