USA - Delaware International Trade in Legal Services

Is there legislation governing the legal sector

DELAWARE CODE 1852 (as amended), Title 10, Courts and Judicial Procedure, Organization, Powers, Jurisdiction and Operation of Courts, CHAPTER 19. GENERAL PROVISIONS APPLICABLE TO COURTS AND JUDGES, § 1906. Admission of attorneys.

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 have a bachelor’s degree and a JD from an ABA approved law school, satisfy character and fitness to practice requirements, and have passed the bar exam.

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

This only automatically entitles the holder to practise in Delaware. 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?

The following working definition of the practice of law was established by Delaware case law: “advice or service under circumstances which imply the possession and use of legal knowledge and skill.  The practice of law includes all advice to clients, and all actions taken for them in matters connected with the law."
Rule 4(c) of the Rules of the Board on the unauthorised practice of law states that “In evaluating any information involving the possible unauthorized practice of law in the State of Delaware, Disciplinary Counsel shall initially determine whether the person which is the subject of such information is otherwise authorized to practice law in the State of Delaware. If not, Disciplinary Counsel shall then determine whether such person has possibly engaged in any of the following types of conduct: (i) giving legal advice on matters relating to Delaware law, (ii) drafting legal documents or pleadings for a person or entity (other than one's self} reflecting upon Delaware law, for use in a Delaware legal tribunal or governmental agency, unless the drafting of such documents or pleadings has been supervised by a person authorized to practice law in the State of Delaware, (iii) appearing as legal counsel for, or otherwise representing, a person or entity (other than one's self) in a Delaware legal tribunal or governmental agency, (iv) holding one's self out as being authorized to practice law in the State of Delaware,  (v) engaging in an activity which has traditionally been performed exclusively by persons authorized to practice law, and (vi) engaging in any other act which may indicate an occurrence of the unauthorized practice of law in the State of Delaware as established by case law, statute, ruling or other authority.

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

No

A lawyer may practise as a sole practitioner, in a general or limited liability partnership. Fee sharing with non-lawyers is prohibited.

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

The Delaware code of professional conduct which is modelled on the ABA model code (see:http://courts.delaware.gov/rules/DLRPCwithCommentsFeb2010.pdf)

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

Not from the Court but may be subject to other notification requirements depending on the form taken (e.g. limited liability company) and the local State code.

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

Licences are issued by the Delaware Supreme Court (see: http://www.courts.delaware.gov).

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?

Under the WTO commitments of the USA, an individual practising 'as or through' a lawyer qualified in Delaware may provide legal services in modes 1-3.

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.

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

The only "foreign" firm present in Delaware is DLA Piper which is established under the US arm of its Swiss verein.

Rule 5.5 of the Delaware code of conduct allows temporary practice by foreign lawyers.
""(c) A lawyer admitted in another United States jurisdiction or in a foreign jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:
(1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;
(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;
(3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission.

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 could practise law on a fly in fly out basis in Delaware provided they meet the requirements of the Delaware Supreme Court Rules for temporary practice. In addition. '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 Supreme Court Rule 55.2 Foreign Legal Consultants "A person licensed to practice as a foreign legal consultant under this Rule may render legal services in this jurisdiction with respect to the law of the foreign country or countries in which the Foreign Legal Consultant is admitted to practice law, but shall not be considered admitted to practice law in this jurisdiction, or in any way hold himself out as a member of the bar of this jurisdiction, or do any of the following: (1) Appear as a lawyer on behalf of another person in any court, or before any magistrate or other judicial officer, in this jurisdiction (except when admitted pro hac vice); (2) Prepare any instrument effecting the transfer or registration of title to real estate located in the United States of America; (3) Prepare: (A) Any will or trust instrument effecting the disposition on death of any property located and owned by a resident of the United States of America, or (B) Any instrument relating to the administration of a decedent's estate in the United States of America; (4) 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; (5) Render professional legal advice on the law of this State, of any other jurisdiction in which he or she is not authorized to practice law or of the United States of America (whether rendered incident to the preparation of legal instruments or otherwise)".

An FLC licensed in Delaware must not carry on a practice under, or utilize in connection with such practice, any name, title or designation other than one or more of the following: (A) The foreign legal consultant's own name;  (B) The name of the law firm with which the foreign legal consultant is affiliated;  (C) The foreign legal consultant's authorized title in the foreign country of his or her admission to practice, which may be used in conjunction with the name of that country; and (D) The title "foreign legal consultant," which may be used in conjunction with the words "admitted to the practice of law in [name of the foreign country of his or her admission to practice]".

Foreign lawyers must be members in good standing with the Bar of a foreign country and take an oath to adhere to the professional code of conduct of the State in order to be admitted as an FLC. An FLC must also provide evidence of appropriate professional indemnity insurance and provide an address for service of process in Delaware.

Rule 5.5c of the Delaware code of conduct allows foreign lawyers to conduct arbitration or mediation where those services arise from practice in a jurisdiction in which he or she is admitted and do not require pro hac vice admission.

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

Delaware's pro hac vice rules do not cover foreign lawyers.

Can foreign lawyers requalify as local lawyers?

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

There are no separate requirements on law firms. An FLC is permitted to open an office.

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

Not applicable

Not applicable

Not applicable

Yes

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