Written Comments/Position Papers ABA Model FLC Rule by yrr14496


									       American Bar Association Model Rule for the Licensing of Legal Consultants
                          28 International Lawyer 207 (1994)
          Prepared by Professor Laurel Terry for the ABA Commission on Multijurisdictional Practice

1. Type of                    Permanent establishment in the Host State as an FLC, see § 1(e)
Practice addressed

2. Definition, if any         Not directly; but requires the FLC to maintain an office in the Host State and to
                              “intend to practice as a legal consultant” in the Host State

3. Any reciprocity            Yes; § 3 allows the Host State, in its discretion, to take into account whether a
requirement?                  Host State lawyer would have a reasonable and practical opportunity to establish
                              an office for the giving of legal advice to clients in the Home State

4. Is registration            Yes; § 2 requires the FLC to file [in English], a certificate from the Home State
required?                     professional body or regulator certifying the FLC’s good standing at a lawyer; a
                              letter of recommendation from a member of the executive body of the professional
                              body or regulator or from a judge; such other evidence of education and
                              professional qualifications, good moral character and compliance with the rule as
                              the Host State may require

5. Applicable ethics          Host State rules , see § 5(a)

6. May the Host State         Yes, see § 6(a)(i) and § 8
discipline the migrant?

7. Any “scope of              Yes. § 4 states that a FLC may not do the following:
practice” limitations?
                              ·        represent a client in any court, or before any magistrate or other judicial
                                       officer, in this State (other than upon admission pro hac vice);

                              ·        prepare any instrument effecting the transfer or registration of title to real
                                       estate located in the United States of America;

                              ·        prepare any will or trust instrument effecting the disposition on death of
                                       any property located in the United States of America and owned by a
                                       resident thereof, or any instrument relating to the administration of a
                                       decedent's estate in the United States of America;

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                            ·        prepare any instrument in respect of the marital or parental relations,
                                     rights or duties of a resident of the United States of America, or the
                                     custody or care of the children of such a resident;

                            ·        render professional legal advice on the law of the Host State except on
                                     the basis of advice from a person duly qualified and entitled to render
                                     professional legal advice in this State;

8. Which title is used by   The title “Legal Consultant,” together with the lawyer’s own name, the name of
the migrant lawyer?         the firm with which he or she is affiliated, and the title used in the Home State, see
                            § 4(g). The FLC shall not hold him or herself out as a Host State lawyer, see §

9. Any provisions           Yes. § 4(g) allows the FLC to practice using the name of the law firm with which
regarding law firm          he or she is affiliated

10. Other “forms of         Yes. § 5(b) states that the FLC has the rights and obligations of a Host State
association” issues?        lawyer with respect to affiliation in a law firm with Host State lawyers by means
                            ·       employing one or more Host State lawyers;

                            ·        being employed by one or more Host State lawyers or by a partnership
                                     [or professional corporation] which includes Host State lawyers or
                                     maintains an office in the Host State; or

                            ·        being a partner in any partnership [or shareholder in any professional
                                     corporation] which includes Host State lawyers or maintains an office in
                                     the Host State

11. Other qualification     Yes. § 1 authorizes the Host State to permit the transient lawyer to practice in the
requirements?               Host State as a FLC, without examination, if the FLC:

                            ·        is a member in good standing of a legal profession whose members are
                                     admitted to practice and subject to effective regulation and discipline by
                                     a legally-recognized body;

                            ·        possesses the good moral character and general fitness required for Host
                                     State lawyers;

                            ·        has actively practiced Home State law for 5 of the last 7 years [the rule
                                     indicates that this requirement is optional and that the years may be
                                     shortened or omitted];

                            ·        is 26 years old [the rule indicates that this may be omitted];

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                    ·      intends to practice as a legal consultant and to maintain an office in the
                           Host State for that purpose

                    ·      pays the required application fee and thereafter, a renewal fee equal to
                           the fees paid by the Host State lawyer, see § 7

                    ·      submits to the jurisdiction of the Host State regulatory authority; see §

                    ·      complies with the Host State rules for FLCs and Host State lawyers, see §

                    ·      provides evidence of professional liability insurance, see § 6(a)(ii)(B)

                    ·      agrees in writing to notify the Host State of any disciplinary action in the
                           Home State or change in the FLC’s good standing, see § 6(a)(ii)(C)

                    ·      provides an address for delivery of documents and service of process, see
                           § 6(a)(ii)(D)

12. Miscellaneous   Yes.
                    ·      § 5(b)(ii) grants the FLC the same rights and obligations
                           as a Host State lawyer with respect to attorney-client
                           privilege, work-product privilege, and other professional

                    ·      § 9 states that if the FLC is admitted as a regular Host State lawyer, then
                           the FLC license is superceded by the Host State license;

                    ·      §10 grants the regulator discretion, upon written request. to waive any
                           provision of the Model FLC rule if it would cause undue hardship to the
                           FLC applicant

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