At our annual meeting in Orlando the other week, ACC proudly flew flags from many of the countries that our members come from. No surprise, there were a lot! As we state on our main web page, ACC has members in more than 75 countries. Most of those lawyers work abroad. But some work in the United States at least part of the time.
We’re not the only ones who have noticed the increasing globalization of in-house legal departments. The American Bar Association’s Commission on Ethics 20/20 has been trying to make it easier for U.S. companies to hire the lawyers that they think are best for the job, no matter where they come from. In September, the 20/20 Commission released three proposals to amend the ABA’s Model Rules. ACC greatly appreciates the ABA’s efforts. But we also think that the ABA needs to go further, as we wrote in a letter late last week.
The 20/20 Commission’s proposals, released on September 4 and available here, have their heart in the right place. They allow lawyers from abroad to work in-house, even without a law license from within the U.S., so long as they register. That means no one needs to take a U.S. bar exam. The proposals would also allow these lawyers to apply for pro hac vice admission to appear in state courts, and would let them represent deserving clients on a pro bono basis.
But the rules would needlessly hem in companies and the foreign lawyers they want to hire. The proposed rules would force foreign lawyers to consult with U.S. lawyers on any topic that touches on U.S. law. ACC recommends a standard that focuses solely on whether the lawyer has competence to advise on an area of law. Significantly, that’s the same rule that already applies to lawyers licensed in the U.S. For pro hac vice appearances, the proposals would impose too many requirements and then give judges wide discretion to still close their courtroom doors to foreign lawyers. ACC recommends that the proposals require courts to generally admit foreign lawyers, just as they already do for lawyers with U.S. law licenses. And the rules would also limit the sort of pro bono programs that in-house lawyers can participate in. They should allow foreign in-house lawyers to fully participate in the many in-house pro bono programs that legal departments around the country have created and expanded in recent years.
In short, the rules make it too difficult for U.S. companies to make the most of the in-house foreign lawyers they hire.
This isn’t the first time that ACC has weighed in with the 20/20 Commission. Back in 2010, ACC called on the Commission to adopt as a “bedrock principle” a system modeled on driver’s licenses, which would allow lawyers to qualify in one jurisdiction and then move around freely. The Commission has apparently decided not to implement that approach quite yet. But we retain our hope that state bars will eventually adopt the broader changes that we proposed in 2010.
ACC’s letter from last week, along with our 2010 letter, are available here. The 20-20 Commission will hold an open meeting to discuss its proposals in Washington DC on October 25 and 26. More information on that meeting is available here.