Back in December 2013, the Council on the American Bar Association's Section of Legal Education and Admissions to the Bar elected to defer ruling on whether they would accredit foreign law school. The Council noted the need for more study on the issue--raised initially by an application for accreditation by Peking University of Transnational Law. Had the Council decided to start accrediting this foreign law school, those graduates would have arguably been able to become licensing to practice in the United States.
The reason for accrediting would have been two-fold. The first would have been to allow the ABA oversight over the education a foreign lawyer receives. The other would be to create a way for the American legal community to achieve a more global aspect. In an increasingly international marketplace, it only stands to reason that the pool of United States lawyers draw from around the world. Practicing law is an increasingly global affair, and we should be evaluating how our local United States bar associations are keeping up with this trend.
Even so, delaying the decision was the right choice. Outright refusal would have been appropriate as well. Though such a policy change would have seemed to open the doors for foreign lawyers to practice in the United States, it actually would not have removed the hurdles that exist for foreign educated lawyers seeking to practice here in the United States.
Whenever we talk to lawyers who are interested in relocating to the United States to practice, we find that there is a great deal of confusion about what the requirements are for a foreign lawyer to become eligible to practice. Rightly so.
“There is no one rule that determines a lawyer's ability to practice here. Indeed, each individual state bar has its own admission rules. There are essentially 51 different answers to the question "can I move to the US and be a lawyer?" depending on location and the specifics of the individual's education abroad.”
Most notably, New York is one of the jurisdictions most open to admitting foreign lawyers to practice. In New York, certain foreign lawyers who have law degrees from certain schools and studying English law may be eligible to sit for the bar without having to obtain any further American law school study. Graduates of other law schools outside of the United States will generally be eligible to sit for the bar after graduating from a one-year LL.M. program at an ABA accredited school. Because New York is such a huge legal marketplace with broad international practices, it is easy to assume that a lawyer who can become admitted in New York will be able to practice throughout the rest of the country.
One of the common misconceptions is that the New York rule is the standard for practicing in the United States. In fact, it is not. Only one other state allows foreign lawyers to sit for the bar without any local study. (Massachusetts, which allows the graduates of certain Canadian law school graduates to sit for the Massachusetts bar examination). Outside of New York, the United States legal system, and the many bar associations contained within are actually quite exclusive with respect to foreign trained and educated lawyers.
According to the ABA, only 5 states will allow a foreign lawyer to take the bar under any circumstances (New York, California, Alabama, New Hampshire and Virginia). That's less than 10% of the jurisdictions in the United States! Thus, to practice in the United States, a lawyer must sit for and pass one of the bar examinations in one of these states. Depending on the lawyer's practice, this may limit the locations where he or she can practice. Since New York and California are both large internationally-oriented cities, this certainly provides substantial opportunity. However, moving to a different state to practice law may be difficult.
“When the ABA considered whether it would accredit foreign law schools, it solicited comments from interested parties. One of the comments in support of the proposal was a New York barred lawyer who was educated outside of the US. He found it shocking that despite having practiced for over 25 years in New York, he was unable to sit for the New Jersey bar because he did not have a US law degree.”
This illustrates exactly why accrediting foreign law schools would not succeed in opening up opportunity for foreign lawyers to practice in the United States. Many states--essentially half of the bar associations throughout the US--do not allow foreign JDs to practice law in their state. Even for those lawyers who are admitted in the another jurisdiction in the United States--fully 23 states will not consider graduates of foreign law schools as eligible for admission to their state. These states have made conscious policy decisions about how protectionist they want to be with regard to who may practice law in their state. The 23 jurisdictions who will allow foreign educated lawyers to become admitted will do so only through reciprocity: that lawyer must become admitted in one of the 5 states listed above, and usually they must practice for a number of years before the application will be considered.
Does this cause occasionally inconsistent results, such as the New York lawyer who was ineligible to sit for the New Jersey bar? Certainly. But these inconsistencies are part and parcel of practicing law in the United States, where lawyers are admitted locally according to the particular rules of each state bar (and the Washington, D.C. bar as well).
Even if the ABA accredited foreign law schools, it would not make these individual state bars any less protectionist: they would invariably just refine their admission standards to continue to disallow foreign law school graduates from sitting for the bar. The ABA does not make the decision about admitted foreign lawyers to the various bars across the country, individual bar associations do. And as a close look at the clearly established policies across the United States reveal, many state bar associations are simply not interested.
The secondary issue for overseas lawyers interested in relocating and practicing in the United States is just as complex and possibly more important than the first. Even if a foreign attorney may become licensed to practice here in the US, will he or she get a job? Just as the ABA does not control admissions standards in the various state bar associations, they also do not have any control over visa sponsorship issues. A law degree from an accredited law school abroad doesn't get a foreign attorney a visa to work in the United States. Only employers willing to sponsor an attorney (and who have the acumen navigate through the appropriate process) can even begin to do that.
A legal employer's willingness to sponsor a lawyer for an H1-B in the shorter term, or green card in the longer, tends to ebb and flow with the economy. It also varies from organization to organization. But before a law school starts collecting hefty tuition checks from prospective students with the promise of a United States practice, there should be clarity about any immigration issues that might create a barrier for that newly admitted attorney.
Of course, there are many foreign educated lawyers practicing here in the United States--particularly here in New York. What this tells us is that there are already processes and procedures that facilitate a US based practice for foreign admitted attorneys. But before we start accrediting law schools internationally there has to be a better market for these lawyers. The legal community in the United States cannot enhance its global aspect unless this expanded pool of international lawyers can actually get jobs domestically.