“Foreign Legal Consultant” Status Proposed in Rule Amendments by Pennsylvania Board of Law Examiners and Disciplinary Board
The Disciplinary Board and the Pennsylvania Board of Law Examiners (PBLE) have jointly proposed amendments to their respective governing rules which would allow individuals licensed to practice law in foreign countries to perform limited services in Pennsylvania as “foreign legal consultants,” providing information and advice on the law of the countries in which they are licensed. The PBLE and the Disciplinary Board invites any interested person to submit comments by Friday, May 7, 2004.
The PBLE would allow licensing as a Foreign Legal Consultant to an applicant who:
- is a member in good standing of a recognized legal profession in a foreign country, which is subject to effective regulation and discipline;
- For at least five of the last seven years, has been a member of the bar and actually engaged in the practice of law regarding that country’s law;
- Possess the good moral character and general fitness requisite for a member of the Pennsylvania bar;
- Is at least 26 years of age;
- Intends to maintain an office in and practice as a foreign legal consultant in Pennsylvania; and
- Has passed the Multistate Professional Responsibility Exam with the score required for successful applicants under Rule 203 of the Pennsylvania Bar Admission Rules.
Applicants will be required to file an application form to be prescribed by the PBLE, together with:
- a certificate as to admission and good standing from the bar of the foreign country;
- a letter of recommendation from a member of the executive body of such bar or a judge of the highest court of law or original jurisdiction in the country;
- Authenticated English translations of such certificates and letters, if necessary;
- A statement expressing understanding of and agreement to follow the Rules of Professional Conduct and Pennsylvania Rules of Disciplinary Enforcement to the extent applicable;
- Evidence of professional liability insurance;
- Such other evidence of qualification, character, and fitness as may be required;
- An agreement to notify the Prothonotary of any change in license status or public professional discipline; and
- An instrument setting forth an address for service of process in the Commonwealth and designating the Prothonotary as an alternate for service of process if unavailable.
The PBLE will have discretion to issue a certificate recommending licensure. One factor that may be taken into account is whether the applicant’s home country would allow members of the Pennsylvania bar to establish comparable offices. Any member of the bar who has established or sought or establish an office in that country may request the PBLE to consider whether applicants from that country should be denied foreign legal consultant status.
Once the PBLE grants a certificate to the applicant, the applicant shall file a motion for licensure with the Prothonotary of the Supreme Court, who is to issue the licensure if the application is in order.
If a person licensed as a foreign legal consultant is subsequently admitted to the bar of Pennsylvania, the license as a foreign legal consultant is superseded.
A person licensed as a foreign legal consultant may NOT:
- Appear in a representational capacity in courts (except if admitted pro hac vice);
- Prepare instruments for the transfer of real estate in the United States of America;
- Prepare wills or trusts effecting the distribution of property located in the USA and owned by a resident thereof, or relating to the administration of a decedent’s estate in the USA;
- Prepare any instrument affecting the marital or parental relations, rights, or duties of a resident of the USA, or children in the custody or care of a resident;
- Render advice on the laws of Pennsylvania or any jurisdiction in the USA where the foreign legal consultant is not licensed to practice law;
- In any way hold himself or herself out as a member of the bar of Pennsylvania; or
- Carry a practice under any name except his/her own, that of an affiliated law firm, an authorized title in the foreign country, or the term “foreign legal consultant” with or without reference to admission in the foreign country.
Subject to the above limitations, the foreign legal consultant is to be considered as a lawyer for the following purposes:
- The foreign legal consultant is subject to all obligations created by the Rules of Professional Conduct and the Pennsylvania Rules of Disciplinary Enforcement, and is subject to professional discipline to the same extent as a lawyer admitted to the bar of Pennsylvania, except that she/he is not subject to the requirements of Continuing Legal Education;
- The foreign legal consultant may employ or be employed by members of the bar, and be a partner, associate, or other affiliate in a law firm with members of the bar of Pennsylvania; and
- The foreign legal consultant enjoys the professional privileges of a lawyer, such as attorney-client privilege and work product privilege.
The Disciplinary Board proposes to amend the Pennsylvania Rules of Disciplinary Enforcement to allow for foreign legal consultants in the following ways:
- Rule 102 (definitions) would be amended to add the definition of “foreign legal consultant” and to include foreign legal consultants under the definition of “practice of law” and “attorney.”
- Rule 203 (grounds for discipline) would include an additional ground for discipline when an attorney ceases to meet the requirements for licensure as a foreign legal consultant;
- Rule 212 (substituted service) would allow service of a petition for discipline regarding a foreign legal consultant upon the Prothonotary, as authorized in PBAR 341(b)(8);
- Rule 216 (reciprocal discipline) would be amended to allow service relating to a foreign legal consultant on the Prothonotary;
- Rule 217(h) (surrender of indicia of licensure of a formerly admitted attorney) would be amended to require surrender of the PBLE certificate of licensure;
- Rule 219 (periodic assessment of attorneys) would be amended to equate licensure as a foreign legal consultant with original admission to practice in the Commonwealth; no annual fee is required in the year of initial licensure;
- Rule 512 (covered attorney) would be amended to provide that a foreign
legal consultant is a covered attorney for purposes of the Pennsylvania Lawyers
Fund for Client Security, except that awards will not be granted relating
to conduct outside Pennsylvania, unless that conduct relates to legal services
provided to a resident of Pennsylvania.
The complete text of the proposals to amend the Bar Admission Rules and Rules of Disciplinary Enforcement to provide for foreign legal consultants may be viewed online here.