USA - California International Trade in Legal Services

Is there legislation governing the legal sector

The California Business & Professions Code Div. 3 - Professions and Vocations Generally, Ch. 4 - Attorneys (Bus. & Prof Code §§ 6000 et seq.) known as 'The State Bar Act' (1939).

Under what title do lawyers practise?

Attorney at law

How does an individual lawyer obtain a "licence" to practise law? How often must this be renewed?

An individual must be 18 years old, have at least 2 year's  post-secondary  study, or equivalent, , legal training as defined by statute,  good moral  character , and have passed the bar exam.  Once these requirements are met, one is admitted by the Supreme Court, subject to annual renewal fees. 

Does this entitle the holder to practise throughout the country? If the law license only permits one to practice on a sub-national level, please explain the jurisdictional limits

As with all U.S. state jurisdictions, this only entitles the holder to practise in their state of admission, in this case California. The right to practise on a temporary basis in another state or to appear pro hac vice in another state depends on the explicit permission of that state.

Are there certain activities that are "reserved" to those who are licensed to practise law in the jurisdiction?

In the U.S., the practice of law can be performed only by licensed attorneys. The California State Legislature adopted the State Bar Act in 1927 and used the term 'practice law' without providing a definition.   Early case law in People v. Merchants' Protective Corp. (1922) provided the following definition  'As the term is generally understood, the practice of the law is the doing or performing services in a court of justice, in any matter depending therein, throughout its various stages, and in conformity to the adopted rules of procedure. But in a larger sense it includes legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured although such matter may or may not be depending in a court.”  This remains the definition of legal practice.

Do you need to hold local nationality to be eligible to practise law?

No.  US citizenship is not required to be admitted in California.

A lawyer may practise as a sole practitioner, in a general or limited liability partnership, or as a professional corporation. Fee sharing with non-lawyers is prohibited.  Thus multidisciplinary practices or alternative business structures are not currently permitted.

What other ethical or regulatory requirements must a licensed lawyer comply with? 

The California Business and Professions Code Sections 6000 et seq, and the California Rules of Professional Conduct set the disciplinary standards in California (see:http://rules.calbar.ca.gov/Rules/RulesofProfessionalConduct).

Do law firms need to receive a "license" (or permission/approval) to practice law?

California does not regulate “firms,” only individuals.  But in order to be certified as a law corporation or a limited liability partnership, one has to be registered by the State Bar.  Otherwise firms are not licensed.

Which authority issues licences? Are there different authorities for individuals and firms? 

California attorneys are admitted by the Supreme Court and licensed by the State Bar of California (see http://www.calbar.ca.gov/).  Only individual members are admitted and licensed.

Is the jurisdiction a member of the WTO?

The US joined the WTO on 1 January 1995

Has it made any commitments under GATS in legal services?

The USA has scheduled commitments for California in modes 1-3 for the practice of home country law, international law (to the extent this is incorporated in home-country law) and 3rd-country law (provided that the FLC first obtains advice from an attorney licenced in that jurisdiction). Suppliers regularly supplying legal services in California must be licensed as foreign legal consultants.

Is the jurisdiction party to bilateral agreements which offer special treatment to businesses or individuals from particular countries?

The US has bilateral agreements with: the Dominican Republic - Central America (CAFTA), Korea, North American Free Trade Agreement (NAFTA), Australia, Bahrain, Chile, Colombia, Israel, Jordan, Morocco, Oman, Panama, Peru and Singapore. It is currently negotiating new agreements with the EU (TTIP) and the Trans-Pacific Partnership.    California does not have a separate agreement with anyone and does not offer preferential treatment to other jurisdictions on admission to legal practice.  California does not have a separate agreement with anyone and does not offer preferential treatment to other jurisdictions on admission to legal practice.

The NAFTA agreement calls for future negotiations on MRAs amongst the legal professions and lawyers are included in the professional visa programme.

Are foreign lawyers from different jurisdictions treated differently as a result of any such agreements?

NAFTA lawyers have access to the professional visa program

Foreign firms are represented in California through the representative offices of English firms Osborne Clarke and Clyde and Co, the Australian/Chinese firm King and Wood Mallesons. Other English firms such as Dentons, DLA and Hogan Lovells are represented through the US arms of their Swiss vereins. A large number of US international and national firms are also present.

California Rules of Court   9.47 (part of litigation) and 9.48 (non-litigation matter) only permit lawyers who are licensed to practice in another US jurisdiction to practise temporarily in California without registering with the State Bar.

Can a foreign lawyer obtain a visa to visit clients or to market but not to practice?

Under the WTO commitments of the USA, an individual wishing to practise law on a fly in fly out basis in California would need to be fully admitted to the California Bar or to the Bar of another US State. 'Service salespersons' are permitted to enter the USA for periods of up to 90 days. "Service salespersons" are "persons not based in the territory of the United States and receiving no remuneration from a source located within the United States, who are engaged in activities related to representing a services supplier for the purpose of negotiating for the sale of the services of that supplier where: a) such sales are not directly made to the general public and b) the salesperson is not engaged in supplying the service" Entry for persons named in this section is limited to a ninety-day period.

Can a foreign lawyer obtain a licence to establish and practise as a foreign legal consultant and what is the scope of this limited licence?

Yes - a foreign lawyer may be licensed as a foreign legal consultant (see California Court Rule 9.44). This permits foreign legal consultants to offer services in international law, to the extent this is incorporated in home-country law. Practice of 3rd-country law and California law is not permitted.  For FLC rules see http://admissions.calbar.ca.gov/Requirements/ForeignLegalConsultantsFLCd)  Rule 9.44 of California rules of court permit the following: “Subject to all applicable rules, regulations, and statutes, a registered foreign legal consultant may render legal services in California, except that he or she may not:
(1)Appear for a person other than himself or herself as attorney in any court, or before any magistrate or other judicial officer, in this state or prepare pleadings or any other papers or issue subpoenas in any action or proceeding brought in any court or before any judicial officer;
(2)Prepare any deed, mortgage, assignment, discharge, lease, or any other instrument affecting title to real estate located in the United States;
(3)Prepare any will or trust instrument affecting the disposition on death of any property located in the United States and owned by a resident or any instrument relating to the administration of a decedent's estate in the United States;
(4)Prepare any instrument in respect of the marital relations, rights, or duties of a resident of the United States, or the custody or care of the children of a resident; or
(5)Otherwise render professional legal advice on the law of the State of California, any other state of the United States, the District of Columbia, the United States, or of any jurisdiction other than the jurisdiction named in satisfying the requirements of (c) of this rule, whether rendered incident to preparation of legal instruments or otherwise.
 

An FLC in California must provide the State Bar with an 'address of record' in California (which does not necessarily require residency) and evidence of security for claims such as an acceptable insurance policy. Rule 3.402 Duties of Registered Foreign Legal Consultants.
A Foreign Legal Consultant must
(A) annually renew registration as a Registered Foreign Legal Consultant and submit
the fee set forth in the Schedule of Charges and Deadlines;
(B) report to the State Bar within thirty days any change in eligibility or the security
for claims required by these rules;
(C) at all times maintain the security for claims required by these rules and upon
demand promptly provide the State Bar with current evidence of security for
claims;
(D) provide legal advice in California exclusively regarding the law of a foreign
jurisdiction where he or she is licensed to practice law and which is identified in
the Application To Register as a Foreign Legal Consultant;
(E) use the title “Registered Foreign Legal Consultant” and no other in connection
with activities performed as a Registered Foreign Legal Consultant;
(F) not claim in any way to be a member of the State Bar of California;
(G) maintain an address of record and a current e-mail address with the State Bar;
and
(H) otherwise comply with Rule 9.44 and these rules
 

FLC registration is subject to meeting requirements of registration, an experience requirement (4 of the 6 years preceding registration must have been spent practising law), certification of registration and good standing with home-country bar, meeting the professional liability insurance requirement, and agreement to be bound by the requirements of the State Bar of California.

Lawyers who are not admitted in another US state are not covered by California Rules of Court Rule 9.43 on out-of-state attorney arbitration counsel. Foreign lawyers can therefore not appear in arbitrations on the basis of their foreign qualifications alone.  Except in labour and international arbitration.  See Birbrower, Montalbano, Condon & Frank v. Superior Court (1998) 17 Cal.4th 119.

Are foreign lawyers allowed to appear in court under any circumstances?

No. Only lawyers admitted in other US states are covered by California's Pro Hac Vice Admission Rule, Rule 9.40, effective January 1, 2007 (See http://www.courtinfo.ca.gov/rules/index.cfm?title=nine&linkid=rule9_40).

Can foreign lawyers requalify as local lawyers?

Can a foreign law firm obtain a licence to open an office?

There is no special licensing procedure for foreign law firms but LLPs or Law Corporations must be registered with the State Bar.

Even if a foreign law firm does not require a legal licence must they register in some form in order to set up an office? (e.g. with a ministry of company affairs etc)

Not applicable

Not applicable

No

No

Yes - this is explicitly mentioned in the USA's schedule of specific commitments on legal services

Yes - this is explicitly mentioned in the USA's schedule of specific commitments on legal services

Yes - this is explicitly mentioned in the USA's schedule of specific commitments on legal services

Other useful sources or comments or links

See the State Bar of California’s website, www.calbar.ca.gov