Foreign Lawyers Seeking to Practice in U.S. Face Roadblocks

As the legal profession becomes increasingly global, many are finding that the realities of the market are straining current understandings of international law and convergence, law firms' strategies, and the geography of rapidly growing markets.
 

Transnational lawyers have their own set of issues. Many foreign-educated attorneys attempt to land jobs in the U.S. each year and face great challenges in doing so.

"The number of foreign lawyers working in U.S. law firms has multiplied since the mid-1990s," writes Northwestern University law professor Carole Silver in her paper "The Case of the Foreign Lawyer: Internationalizing the U.S. Legal Profession."

"Foreign lawyers occupy two basic roles in the large U.S. law firms that traditionally have been involved in the international market for legal services: One group is comprised of lawyers who act as substitutes for U.S. lawyers, and another group is comprised of lawyers who are hired for their foreign expertise."

These jobseekers, many of whom possess stellar résumés and academic credentials, are often disappointed by the series of roadblocks that lie between them and licensure to practice law in the United States.

According to Simon Cairns, director of alumni relations for legal recruitment firm BCG Attorney Search, "Those with aspirations of working in the U.S. as soon as they graduate from an overseas law school have an uphill battle, especially if they require a visa.

"I always advise law students to think at a macro level when considering course options. If you see yourself living in the U.S. long-term, make a three-year plan; and get good, transferable experience in a leading firm. U.S. firms are much more interested in overseas lawyers with the required U.S. bar exam."

He also notes that transferring to the United States office of one's current firm "is the best and generally fastest option for lawyers wanting to sample life on this side of the pond."

One of the trickier aspects of obtaining licensure is the U.S. system whereby each state has its own bar exam.

"Most countries in the international community follow a single, general rule for attorney certification and admission," writes Arkansas attorney William R. Eckert III in his paper "Globalization Within the Legal Profession and the Continuing Implications of the ABA-First Degree Rule."

"Traditionally, United States attorneys have been limited to practice only in the state in which they are admitted to the bar or in a federal court. It is this practice which presents the greatest roadblock to admission to practice for an internationally trained law graduate.

"Practically, this means that all fifty states; the District of Columbia (Washington, DC); and a number of other recognized entities, such as Puerto Rico, American Samoa, and Guam, each not only have their own separate bar admission process, but may set their own bar admission eligibility rules as well."

In most states, a candidate for bar admission must have obtained a Juris Doctorate from a law school recognized by the American Bar Association; and, unfortunately, most states do not allow for any alternatives. This is what Eckert calls the "ABA First Rule."

Some states, however, have declared some variations on or exceptions to the rule, which would allow bar admission for foreign-educated candidates. There are attorney applicant procedures for practicing attorneys in other jurisdictions; equivalency evaluations for non-ABA, non-U.S. educational credentials; and LL.M. candidate rules for foreign-trained attorneys who pursue a one-year master's degree in law at an ABA-approved, U.S. law school.

In some states, notes Eckert, "The LL.M. degree, being from an ABA-approved school, is deemed to be evidence of sufficient competency to undertake the [bar] examination. One substantial benefit for many applicants is that there is usually no evaluation process of the initial law degree; the statutes interpret the student's acceptance into the LL.M. degree program to be evidence of the international student's aptitude and qualification."

"The number of foreign lawyers enrolling in U.S. law schools for the LL.M. degree has mushroomed," writes Silver.

"A U.S. experience is considered valuable, and in some circles even required, for foreign lawyers wishing to participate in the international legal services market. In Frankfurt, for example, where many of the top German law firms have affiliated or merged with Anglo-American law firms, opportunities are limited for German lawyers who have not studied in the U.S. or England."

Silver goes on to state that working at U.S. BigLaw firms is seen internationally as a significant learning experience for recent law school graduates. She even contends that these firms are regarded by some as the new "graduate schools of law."

"In fact," she writes, "if these law firms could efficiently formalize their training functions, they would be serious competitors of U.S. law schools in the education of foreign lawyers."

Still, the problem remains of how to obtain the necessary bar admission to practice in the U.S. Very few states allow internationally trained law school graduates to take their bar examinations without reservation.

California and New York are notable exceptions, and recent surveys indicate that several states that have taken a more open-minded approach to this problem.

"Massachusetts, for one, has widened its view regarding bar-examination entry partly because of the restrictions placed on their non-ABA law graduates by other states," writes Eckert.

"It must be admitted that the State of California has continuously fostered the most 'globalized' view regarding bar admission eligibility. California remains a beacon for foreign-trained legal graduates and may yet prove to be the precursor of future changes in bar-admission standards. A foreign law graduate with an LL.M. from an ABA-approved school of law has a clear path to being admitted to the California bar examination.

"It should be noted, however, that California is also noted for having one of the strictest bar examination pass rates."

More than ever before, it is clear that national legal systems are being forced to cooperate in a global context through convergence and harmonization. Regional laws and precedents are being challenged, and law firms are compelled to discard nationalistic identities and methods.

Still, although many firms have opened to operating globally, most U.S. firms and bar associations have not returned the favors bestowed on them by the international legal community.

"Regardless of the desirability of U.S. law firms by foreign lawyers," writes Silver, "the firms have not reciprocated by openly welcoming foreign lawyers.

"Foreign lawyers represent a small fraction of the lawyers hired by U.S. law firms each year, and they are present in U.S. offices in very limited numbers."

Eckert notes that the process of liberalizing standards for admission of foreign-educated candidates to state bars "may be hastened if other countries take the stand that their law practice requirements for U.S.-trained attorneys should be mirrored in the manner in which their law graduates are received.

"Globalization should not be a one-way street, or it will not succeed."

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