“The life of the law has not been logic; it has been experience.”
Oliver Wendell Holmes, Jr., former Justice of the US Supreme Court
Long ago, the New York Bar reformed its bar admission rules to allow eligible foreign lawyers to sit for its bar exam (in the case of lawyers from civil law countries with 20 hours or more of LLM studies as a core requirement). California later followed with a similar style reform. The decision by the New York Bar has been very successful as foreign lawyers from around the world have come to study in LL.M programs in the United States and later become New York lawyers, taking these economic and cultural ties back to their home countries and helping to solidify New York’s position as one of the leading markets in the world in the coveted area of international law.
Now a Task Force appointed by the Texas Supreme Court is recommending that Texas adopt a similar regime, leveraging its increasingly important role in international commerce.2
Despite its economic size, Texas at this time significantly lags behind New York in the number of foreign lawyer applicants sitting for the Texas Bar. For example, in Texas each year there are typically between ten and twenty foreign educated applicants who sit for the bar compared to the over 4,000 foreign applicants who sit for the New York Bar. As mentioned above, New York is the undisputed leader in international law in this country and an important global source of commercial law (although many observers view English law as more important and influential in cross-border transactions, at least outside of this hemisphere).
While Texas has not historically been considered a leader in international law, Texas’ geographic, demographic, and economic characteristics place Texas in an enviable position. For example, Texas’ close proximity to Latin America makes it an attractive trade partner to many Latin American countries, such as Mexico and Brazil. Texas has also been very successful in attracting foreign investment in the energy sector, most recently in the nonconventional area. It has also attracted foreign investment in various other industries (e.g., telecom) and enjoys broad diversification in terms of its foreign trade partners.3 Finally, Texas has a strong business infrastructure, has more than 2,000 foreign multinationals established in the state, and boasts the headquarters of many Fortune 500 corporations.4
II. Formation of Task Force in August 2009
Over the past decade the Texas Supreme Court has shown an interest in updating the Rules Governing Admission to the Bar of Texas (the “Rules”) to reflect international trends and changes in technology and to make Texas more competitive in the area of international law. For example, in 2005, the Texas Supreme Court modified the Rules relating to Foreign Legal Consultants (“FLCs”), bringing Texas more in line with international trends.5 In 2009, the Supreme Court formed the Task Force on International Law Practice in Texas (“Task Force”) to consider further changes and revisions to the Rules relating to the admission to the Texas Bar for foreign attorneys, further refinements to the FLC rules, and pro hac vice admission of foreign attorneys.
Specifically, the Supreme Court charged the Task Force with the following three primary tasks: (i) clarify relevant issues; (ii) study recent developments in law related to foreign trained lawyers, and (iii) modernize existing criteria to meet the needs of international law practice in Texas. The Task Force was drawn from a diverse cross section of the Bar (including lawyers from private law firms, in-house legal departments, academia, and representatives of the Texas Board of Law Examiners, State Bar of Texas, and Texas Unauthorized Practice of Law Committee. The Task Force also included lawyers who are also licensed in England and Wales and Brazil, respectively, thereby giving the Task Force a better perspective of major foreign markets (and from both common law and civil law systems), an essential ingredient, when one considers that any rule adopted had to function with bar admission rules and practices from around the world.
III. Investigations and Findings
The Task Force studied and deliberated over three years on these issues, meeting on numerous occasions in Austin, Texas and via teleconference. In particular, it (a) reviewed the approach to foreign attorney licensing in other states and countries, (b) consulted with various regulatory and governmental bodies such as the Texas Board of Law Examiners, the Texas Unauthorized Practice of Law Committee,6 the State Bar of Texas, the English Law Society, the American Bar Association, and the United States Trade Representative Office (“USTR”), (c) considered presentations from legal scholars and economists, and (d) conducted a poll of Texas managing partners of large law firms and general counsels and associate general counsels of large companies on the issue.7
IV. Recommendations of Task Force
The most important areas addressed by the Task Force are: (1) the ability of foreign lawyers to sit for the Texas Bar under rules generally comparable to those used by New York and California (for civil law countries typically with an LLM degree obtained from an approved US law school),8 (2) greater curricular definition and requirements for LL.M graduates largely in line with those recently adopted by the New York Bar, (3) the ability to achieve licensure in Texas based on holding an Optional Practical Training authorization, as is common in New York and California, (4) refinements to the Texas foreign legal consultant rule to promote greater use of this rule, ensure appropriate access to privileges and immunities, particularly by in-house counsel, and facilitate renewal for these foreign attorneys, and (5) application of the Texas “ pro hac vice” rule to foreign attorneys.
V. Proposed Rule XIII – Eligibility to Sit for the Bar
Rule XIII addresses, among other things, the standards and requirements for admitted applicants from foreign jurisdictions to sit for the Texas Bar.9 The rule proposed by the Task Force maintained the existing general framework of dividing applicants in civil law and common law categories, and is also very similar to the ABA Model Rule for Admission of Foreign Lawyers.10 Under the proposed Rule XIII, foreign lawyers who have received their legal training in a civil law jurisdiction may sit for the Texas Bar if they meet the following core requirements: (1) completion of a three year course of study at a law school accredited in a foreign jurisdiction, (2) successfully completed an approved L.L.M degree in the U.S., and (3) be authorized to practice law in a foreign jurisdiction or in another U.S. state.11
In contrast, for lawyers from common law countries, the Task Force proposals recommended that applicants be eligible to sit for the bar under any of the following routes:
- Applicants must (a) have received a degree from a three year law school accredited in a foreign jurisdiction, (b) be authorized to practice in a foreign jurisdiction or in another state, and (c) have been actively and substantially engaged in the lawful practice of law for at least three of the last five years;
- Applicant must (a) have completed a two-year course at a law school accredited in a foreign jurisdiction and (b) have successfully completed an approved L.L.M degree; or
- Applicant must (a) be authorized to practice law in a common law jurisdiction or another US state, and (b) have successfully completed an approved L.L.M degree.
VI. Proposed Rule XIV – Foreign Legal Consultants
A foreign legal consultant (“FLC”) is an attorney licensed to practice law in a foreign jurisdiction which has been certified by the Texas Board of Law Examiners to practice the law of one’s home country. As such, an FLC is permitted to provide limited consulting services in Texas with respect to the law of the foreign jurisdiction in which he or she has been licensed. FLCs can be a valuable resource to a business or law firm that deals with cross border transactions, international trade, or other international issues.
As of March 2013, Texas had 20 FLCs from the following eleven (11) countries - Mexico, Argentina, Brazil, England, Spain, Colombia, Venezuela, Denmark, Greece, Sri Lanka, and Russia.12
Under the current rule XIV, Section 1, a prospective FLC must fulfill five general requirements: (a) be a member in good standing of a recognized legal profession in a foreign country, (b) have been substantially engaged in the lawful practice of law in that country or elsewhere13 for at least three of the last five years, (c) possess the good moral character and general fitness required for a member of the Texas Bar; (d) be at least 26 years of age, and (e) intend to practice as an FLC in Texas and to maintain an office in Texas for such purpose.14
The FLC Certification of practice is valid for one year.15
In practice, the Task Force concluded that participation in the FLC program could be increased and thereby further the goal of transparency (without undermining safety to the public) by refining some of the general requirements and filing requirements (including for the renewal process) for FLCs. Specifically, the Task Force concluded, among other things, that eliminating the practice requirements would increase the availability of the FLC rule for foreign attorneys and reduce the administrative burden on the Texas Board of Law Examiners without undermining the TBLE’s ability to approve and monitor qualified applicants.16
The Task Force also unanimously recommended reducing the requirements for supporting evidence upon initial application to remove unnecessary hurdles and expense. The Task Force concluded that an applicant’s suitability can be verified if his/her application is supported by a mentor in good standing of the Texas Bar and accompanied by a certificate of good standing from the applicant’s home jurisdiction.
In addition, the Task Force recommended a simplification of the renewal process to make it more akin to a renewal of a law license. For example, the documentation currently required for renewal includes evidence of remuneration (i.e. tax returns), which is not required to renew a Texas law license. These changes will both ease the administrative burden on the Texas Board of Law Examiners in administering the FLC regime and make the FLC certification a much more attractive option for those candidates who do not need to obtain a Texas law license to fulfill their career objectives or otherwise achieve goals of their employers such as access to privilege. That said, a Texas law license will typically be more attractive to the candidates who desire to return to their home countries with a prestigious U.S. law qualification (a phenomenon historically evident for foreign attorneys licensed in New York who work a short period in the US before returning to their home countries). However, notwithstanding the diminished prestige of an FLC license, the Task Force concluded that the increased participation and transparency of FLCs in the state was a desirable policy goal.
VII. Rule XIX - Pro Hac Vice Admission
The Task Force unanimously recommended modifications to the existing Rule XIX to allow pro hac vice admission for foreign attorneys. This modification can be accomplished by extending pro hac vice admission to an attorney licensed in a “foreign jurisdiction” as well as another state. This recommendation reflects and is consistent with the ABA Model Rule on Pro Hac Vice. In fact, in February 2013, the ABA House of Delegates adopted ABA Model Rule 107C, as part of the ABA 2020 Commission on Ethics, addressing the globalization of law practice.17 Of course, under the Task Force proposal, any foreign attorney admitted on a pro hac vice basis would still be required to work with Texas counsel, and of course petition the applicable court for approval.
VIII. Curricular Changes
Given the importance of the LL.M degree to these reforms, the Task Force also took a look at the LL.M curricular requirements and proposed the strengthening of these rules in several respects. Historically, the LL.M curriculum has been heavily weighted toward electives with only a course on “Introduction to the US Legal System” (or some variation) being required as part of the 24-hour course of study (both in Texas as well as the US in general).18 This approach was presumably based on the recognition that the LL.M was a graduate course of study and that the students already have their full home country academic preparation, plus in many instances several years of practice experience. Hence, these students are looking for a level of specialization in their studies designed to enhance their existing formation and experience. The changes in this area recommended by the Task Force included:
- Requirement to complete courses consisting of:
- Professional Responsibility (2 credit hours)
- American Legal Studies (2 credit hours)
- Legal research, writing, and analysis (2 credit hours)
- Requirement to successfully complete (6) credit hours in other courses tested on the Texas Bar
- Completion of at least 24 credit hours must be taken in the U.S.
These recommendations closely track the updated NY rule19 (as well as more generally the ABA Model Rule).20
The Task Force unanimously concluded that the proposed reforms would generate a variety of benefits for the State of Texas including: (1) improvement of Texas’ position in the globalized economy; (2) mproved access by Texas businesses to international legal resources, international markets, and foreign lawyers; (3) extension of the Texas Board of Law Examiner’s oversight for a broader population of foreign attorneys who are believed to be working in Texas (some under a New York license); (4) creation of a more transparent regulatory system whereby foreign attorneys are registered and licensed in Texas, pay regular bar dues, take CLE courses, and are subject to Texas ethics rules; (5) facilitation of the handling of transactions and cross border disputes by allowing foreign attorneys to work in Texas as required to meet client needs; (6) provision of a mechanism for foreign attorneys to develop ties and loyalties to the State of Texas and the SBOT; and, (6) improvement of consumer choice and fostering of competition inthe cross-border legal services market.21
Long ago, the New York Bar recognized that the presence of dual licensed lawyers in their state generated additional opportunities for the local bar. Now, the Texas Supreme Court Task Force on International Law has proposed similar reforms that would position Texas well for the challenges and opportunities of this globalized economy.