U.S. States Review Licenses for Foreign Attorneys

Temporary practice and ‘legal consultant’ status may be expanded

Two cases involving foreign attorneys’ rights to sit for the bar exam recently reached Massachusetts’ highest court, the latest sign that states are wrestling with the issue of when attorneys from other countries should be allowed to practice in the United States.

Nine states are reviewing whether to allow the licensing of “foreign legal consultants.” Also, 21 states — including California, New York and Illinois — are considering the possibility of permitting foreign lawyers to practice temporarily.

The number of foreign-educated lawyers sitting for the bar exam nationwide has increased by 28 percent since 2000, to 3,571 in 2005, according to the National Conference of Bar Examiners (NCBE).

States have varying rules about when foreign lawyers can sit for the bar. New York has the most liberal policy and regularly allows lawyers admitted in other countries to take the bar. Out of 3,571 foreign-educated lawyers who took the bar exam in the United States in 2005, New York accounted for all but 234 of them, according to the NCBE.

By contrast, Florida requires a law degree from an American school or at least 10 years of experience in a U.S. jurisdiction. No lawyers educated outside the United States sat for the Florida bar in 2005, the last year for which data were available from the NCBE.

NEED FOR GUIDELINES

In Massachusetts, foreign-educated lawyers may take the exam if they are able to demonstrate their legal education was comparable to that of an accredited U.S. law school, which is often decided on a case-by-case basis. Two recent cases against the Massachusetts Board of Bar Examiners, which sets such rules, reached the state’s top court.

In December, the Massachusetts Supreme Judicial Court ruled in favor of Gregory C. Osakwe, allowing the Nigerian-born lawyer to sit for the bar exam. Osakwe v. Board of Bar Examiners, No. 09642 (Mass.).

Osakwe successfully argued that a law degree from Nigeria, a master of laws from Connecticut and experience practicing in Connecticut and New York should allow him to sit for the bar, which the Massachusetts Board of Bar Examiners denied in 2004.

But in April, the board said a Ghanaian lawyer, Mathias Kwasi Yakah, who has a law degree from Ghana and a master of laws from a Boston law school, needs to supply more information, as he failed to include descriptions of courses he took in Ghana. Yakah v. Board of Bar Examiners, No. 09700 (Mass.).

In a concurring opinion, Justice Robert J. Cordy said that instead of case-by-case court opinions, it may be better for the board to implement “a well-considered and evenly applied set of guidelines.”

Elaine Vietri, executive director of the Massachusetts Board of Bar Examiners, said through an assistant that the board will not comment.

Darren Braham, who co-chairs the Foreign Lawyers Committee of the International Law Section at the Boston Bar Association, said it can’t hurt to have more structured guidelines.

“People have had different results with similar education,” said Braham, whose committee was formed about five years ago to provide professional-development opportunities for foreign lawyers.

Braham, who has a law degree from England, moved to Massachusetts two years ago and works as a legal clerk in Boston. He said he plans to take the bar exam in July next year.

Twenty-six states license foreign legal consultants, who are attorneys from other countries permitted to practice in a limited matter, such as only being allowed to advise on their home country’s laws, instead of U.S. state or federal laws.

Nine states are considering adopting such licenses, said Carole Silver, a senior lecturer at Northwestern University School of Law in Chicago, who is vice chairwoman of the Transnational Legal Practice Committee at the American Bar Association’s Section of International Law. Those are: Arkansas, Delaware, Iowa, Montana, New Hampshire, North Dakota, South Carolina, South Dakota and Virginia.

All of those nine states, except New Hampshire, are also considering adopting rules that would allow foreign lawyers to practice temporarily. New Hampshire adopted such a rule in January. Thirteen additional states are reviewing their temporary practice rules, including Michigan, Oregon and Utah.

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