Lawyers Without Borders: Foreign Legal Consultants

Monday, October 1, 2007 - 01:00

What lawyer does not correspond mainly by e-mail nowadays? Courts are mandating filings through secure websites, pleadings are being scanned and served by e-mail, and attorneys spend their days glued to their Blackberry. With the advancement of technology, our legal practice has become mobile and portable. Lawyers are now also looking to expand their practices beyond local borders. They are opening virtual offices in other cities, even countries, offering their services internationally. Across the U.S. and Canada, an exchange of legal talent is seen, whereby in-house attorneys are being shifted between cross-border subsidiaries, and lawyers are opening office locations in key cities across the border.

All U.S. states and Canadian provinces have strict regulations concerning the right of foreign attorneys to practice in their jurisdictions. The rule of thumb has always been "better write the Bar exam if you can" (yes, in Canada, we say "write" not "take" the Bar!). But to be eligible for the Bar, you first have to have the right type of law degree. Practicing in the U.S. is, by no means, an automatic task when one has a Canadian law degree. Although a Canadian Bachelor of Laws (LL.B.) is based on Common Law and substantially similar to a U.S. Juris Doctorate (J.D.), most U.S. states will not recognize an LL.B. Some states, such as New York or Massachusetts, may recognize it, but only if it was obtained in an ABA-approved school (e.g. McGill University). Conversely, an American attorney seeking to practice in Canada will run into problems depending on which provincial Bar is sought.

Qubec poses an even bigger problem; lawyers licensed in Qubec usually have a Bachelor of Civil Law (B.C.L.), which is pretty much good for Qubec. Likewise, a U.S. attorney interested in practicing in Montral will not be able to do so without a B.C.L. and acceptance to the Qubec bar.

Even if one surmounts the obstacles of having his law degree recognized (without further schooling), then comes the issue of taking time out of practice to study for bar exams. Yuk!

For those of us needing to practice beyond our borders, there may be an alternative. Many U.S. states and Canadian provinces offer licenses to Foreign Legal Consultants (FLCs). This designation is intended for a foreign attorney wishing to practice "their own" foreign law within the new jurisdiction. In some states, such as New Jersey, the certification has been available for quite some time. Yet, it has been greatly underutilized. In 2005 (the year that I was certified), for instance, the Supreme Court of New Jersey had only seen a handful of candidates. In some Canadian provinces, such as Ontario, the designation is a new service offered to attorneys, with a view to keeping up with changing and mobile times.

The process for obtaining the designation varies from state to state, and province to province. In New Jersey, the application process requires references and a fee, review by nine distinct Supreme Court Judges, fingerprinting, issuance of a Court Order, and the taking of a written oath. The process is rather onerous and takes several months. In Ontario, the certification has been offered for only five years, with hundreds of FLCs already licensed. The application is assessed internally by a committee of attorneys and if approved, the certification is given in about two weeks. FLCs are treated like attorneys in that they must be insured, pay certain (lower) practice fees to the Bar and be subject to that Bar's rules of ethics.

FLC designations should be used more often. In NAFTA, the list of professionals able to make use of the treaty provisions to immigrate to Canada has now been expanded to include FLCs. With an FLC license, lawyers seeking to move north now have an effective way to stay with their firms and transfer across the border. They can offer their services potentially anywhere in Canada. U.S. multinational corporations have a broader choice of counsel, as they can recruit foreign attorneys who are FLCs to do their work in-house, as opposed to sending it out to a foreign firm. For example, through my license as FLC in New Jersey, our law firm is able to offer Canadian immigration options to our Fortune 500 cross-border clients right here, from the U.S. The demand and convenience of such one-stop shop legal services led us to open offices in Canada (under my management), plus an in-house "Canadian Division" with offices in the U.S. Moreover, clients sending workers to Canada appreciate the ability to liaise with Canadian counsel locally, especially when they have an existing relationship with the same firm that already serves their inbound U.S. immigration needs.

Please email the author at veronique_nasser@visaserve.com with questions about this article.

Véronique Malka Nasser is the Managing Attorney of the Canadian Division at Nachman & Associates, P.C., a U.S. immigration law firm with offices in New Jersey, New York, Montreal and Toronto. The firm specializes in cross-border individual and corporate immigration to the U.S. and to Canada. Ms. Nasser is a Canadian attorney licensed in Ontario, Canada. She is also licensed as a Foreign Legal Consultant by the Supreme Court of New Jersey. She graduated from McGill University's National Program in 1993 with a Bachelor of Civil Law (B.C.L.) and a Bachelor of Laws (LL.B). She can be reached at (201) 670-0006, ext. 106. The Canadian Division supports the firm's outbound Canadian immigration initiatives, assisting anyone interested in moving or relocating to Canada. Visit www.visaserve.com for more info.