USA - District of Columbia International Trade in Legal Services

Is there legislation governing the legal sector

DISTRICT OF COLUMBIA COURT OF APPEALS RULES, in particular Rule 46 (“Admission to the Bar”) and Rule 49 (“Unauthorized Practice of Law”), District of Columbia Rules Governing the Bar X (“Rules of Professional Conduct”) and XI (“Disciplinary Proceedings”)

Under what title do lawyers practise?

Attorney, attorney at law, lawyer, Esquire

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

An individual must have a JD or LLB, satisfy character and fitness to practice requirements, and have been admitted by bar examination or by motion.  License must be renewed annually by registration and payment of bar dues.

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 entitles the holder to practise in DC or in other jurisdictions if related solely to questions of D.C. law. 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 definition of the practice of law in Washington DC is set out in  DISTRICT OF COLUMBIA COURT OF APPEALS RULE 49 (“UNAUTHORIZED PRACTICE OF LAW”), which states that ""(2) ""Practice of Law"" means the provision of professional legal advice or services where there is a client relationship of trust or reliance. One is presumed to be practicing law when engaging in any of the following conduct on behalf of another: (a) Preparing any legal document, including any deeds, mortgages, assignments, discharges, leases, trust instruments or any other instruments intended to affect interests in real or personal property, wills, codicils, instruments intended to affect the disposition of property of decedents' estates, other instruments intended to affect or secure legal rights, and contracts except routine agreements incidental to a regular course of business; (b) Preparing or expressing legal opinions; (c) Appearing or acting as an attorney in any tribunal; (d) Preparing any claims, demands or pleadings of any kind, or any written documents containing legal argument or interpretation of law, for filing in any court, administrative agency or other tribunal; (e) Providing advice or counsel as to how any of the activities described in sub-paragraph (a) through (d) might be done, or whether they were done, in accordance with applicable law;
(f) Furnishing an attorney or attorneys, or other persons, to render the services described in subparagraphs (a) through (e) above.
The rule is not intended to cover the provision of mediation or alternative dispute resolution ("ADR") services. This intent is expressed in the first sentence of the definition of the "practice of law" which requires the presence of two essential factors: the provision of legal advice or services and a client relationship of trust or reliance. ADR services are not given in circumstances where there is a client relationship of trust or reliance; and it is common practice for providers of ADR services explicitly to advise participants that they are not providing the services of legal counsel.

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

No

A lawyer may practise as a sole practitioner, a limited liability corporation, or a general or limited liability partnership. Fee sharing with non-lawyers is permitted, see D.C. Rules of Professional Conduct, Rule 5.4 (“Professional Independence of a Lawyer”).

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

The DC Rules of Professional Conduct which is modelled on the ABA model rules (see: http://www.dcbar.org/bar-resources/legal-ethics/amended-rules/).

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 DC code.

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

Licences are issued by the DC Court of Appeals (http://www.dccourts.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?

The USA has scheduled commitments for DC 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 DC 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.

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

There are a number of foreign (mostly English) law firms established in DC including: Ashursts, Clifford Chance, Freshfields and Linklaters. Other English firms have a presence through the US arms of their Swiss vereins (Hogan Lovells, Dentons, Norton Rose Fulbright).

 Opinion 14-04 of the Committee on the Unauthorized Practice of Law of the District of Columbia Court of Appeals states a foreign lawyer may engage in the incidental practice of law in the District.
http://www.dcappeals.gov/dccourts/docs/rule49_opinion14-04.pdf

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 the District of Columbia would be able to obtain a visa without registration as a foreign legal consultant. '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 'special legal consultant (see District of Columbia Court of Appeals, Rule 46). The scope of practice is as follows: "A person licensed to practice as a Special Legal Consultant may render legal services in the District of Columbia... subject, however, to the limitations that any person so licensed shall not:
(1) appear for a person other than himself or herself as attorney in any court, before any magistrate or other judicial officer, or before any administrative agency, in the District of Columbia (other than upon admission pro hac vice in accordance with Rule 49 (b) or any applicable agency rule) or prepare pleadings or any other papers or issue subpoenas in an action or proceeding brought in any such court or agency or before any such 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: (a) any will or trust instrument effecting the disposition on death of any property located in the United States and owned, in whole or in part, by a resident thereof, or
(b) 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 one or more children of any such resident;
(5) render professional legal advice on or under the law of the District of Columbia or of the United States or of any state, territory, or possession thereof (whether rendered incident to the preparation of legal instruments or otherwise) except on the basis of advice from a person acting as counsel to such Special Legal Consultant (and not in his or her official capacity as a public employee) duly qualified and entitled (other than by virtue of having been licensed as a Special Legal Consultant under this paragraph (4)) to render professional legal advice in the District of Columbia on such law who has been consulted in the particular matter on hand and has been identified to the client by name;
(6) in any way hold himself or herself out as a member of the Bar of this court; or
(7) use any title other than one or more of the following, in each case only in conjunction with the name of the person’s country of admission:
(a) “Special Legal Consultant”; (b)such Special Legal Consultant’s authorized title in foreign country of his or her admission to practice; (c) the name of such Special Legal Consultant’s firm in that country."

A foreign lawyer licensed as a Special Legal Consultant in DC must maintain an office in DC, be bound by the Rules of Professional Conduct, and meet professional indemnity insurance requirements.

Licensure is subject to meeting requirements of registration, a minimum age of 26 years, certification of registration and good standing with home-country bar, meeting the professional liability insurance requirement, and a written commitment to be bound by the Rules of Professional Responsibility. The court may use its discretion in granting a licence depending on conditions of reciprocity in the applicant's home jurisdiction.

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

Foreign lawyers may apply to appear pro hac vice under Rule 49(c)(7) of the District of Columbia Court of Appeals.

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. A foreign lawyer licensed as a Special Legal Consultant 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

No

May a domestic lawyer be employed by a foreign lawyer or law firm?

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

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