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 “cross-border” practices in birth countries.
All U.S. States and Canadian Provinces have strict regulations concerning the right of foreign attorneys to practice in their jurisdiction. 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 schools (e.g. McGill University). Conversely, an American attorney seeking to practice in Canada will run into problems depending on which provincial Bar is sought.
Quebec poses an even bigger problem; lawyers licenced in Quebec usually have a Bachelor of Civil Law (B.C.L.), which is pretty much good for … Quebec. Likewise, a U.S. attorney interested in practicing in Montreal will not be able to do so without a B.C.L. and acceptance to the Quebec bar.
Even if one surmounts the obstacles of having their 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. Most U.S. states and Canadian Provinces now offer licences 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.
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 9 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 5 years. 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 and codes of professional conduct.
FLC designations should be used more often. In NAFTA, the list of professionals able to make use of the treaty provisions to migrate to Canada has been expanded to include FLCs. Lawyers seeking to move now have an effective way to stay with their firms and transfer across the border. They can offer their services potentially anywhere in Canada or the 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. And if you’re really brave, U.S. law firms can open a “foreign division” to increase exposure and the services they offer.
To find out more about Foreign Legal Consultants, please send your inquiries to firstname.lastname@example.org.
VERONIQUE MALKA NASSER is the Managing Attorney of the Canadian Division at Nachman & Associates, P.C. The firm specializes in individual and corporate immigration to the U.S. and to Canada. They have offices in Montreal, Toronto, New York and New Jersey. 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). 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.