Is this going to open up the floodgates to waves of foreign attorneys? Or is this simply a reflection of the realities of the business marketplace, with more international companies having a U.S. presence?
The American Bar Association passed a resolution that will allow foreign attorneys who register with the ABA to handle certain matters as in-house counsel for companies in the United States. Michael Traynor, co-chair of the ethics commission, told Reuters that there are already foreign-trained lawyers working as in-house counsel with little to no oversight. This would simply allow the ABA to identify and regulate them.
The proposals also "respond to the need to facilitate commerce and transactions." (Because bilingual U.S.-trained attorneys are totally incapable of facilitating international commerce?)
Okay, but what about proper training? As wonderful as foreign law schools might be, they don't train those attorneys in U.S. laws and practices. One has to imagine that this will increase the probability of malpractice. To err is human. Proper training reduces this natural tendency.
Yes, the U.S. has plenty of awful attorneys, but a three-year law degree and bar license at least establish a minimal standard of competence that may not be present with someone who went to the Kazakhstan School of Law. Imagine the pain of exchanging eDiscovery or negotiating terms and conditions of a merger with Borat.
We have a surplus of attorneys in the United States as-is. Why would we encourage companies to import attorneys from other countries in lieu of hiring the unemployed and underemployed? It's legal in-sourcing, and for the tired, weary, unemployed, and underpaid domestically educated candidates, it's bad, bad news.
However, note that Resolution 107A does state that foreign attorneys acting as in-house counsel may not advise on U.S. laws unless that advice is based on the advice of a lawyer who is licensed in the appropriate jurisdiction. This could mean that either (1) companies are going to have to hire or consult with local attorneys anyway, which defeats much of the purpose of having foreign in house counsel, or (2) that part is going to be ignored, much like the previous prohibition on foreign attorneys working as in-house counsel apparently was.
According to Reuters, a few states, such as Georgia and Texas, already allow foreign attorneys to act as corporate counsel. This was done in order to attract more foreign corporations to the states.
The optimal situation for these foreign companies would be to hire U.S. attorneys to work with their foreign-trained counsel. It "facilitates" international commerce, allows them to work with their existing familiar counsel, and with the help of a domestically trained attorney, reduces the chances of malpractice due to a misinterpretation of a U.S. law.
- Fleeing the Firm for In House - A Few Good Resources (FindLaw's In House Blog)
- ABA ethics commission takes on issue of foreign in-house counsel (Inside Counsel)
- How to Land a Corporate or Nonprofit Board Position (FindLaw's In House Counsel Blog)