USA - Florida International Trade in Legal Services

Is there legislation governing the legal sector

THE FLORIDA STATUTES, TITLE XXXII REGULATION OF PROFESSIONS AND OCCUPATIONS, CHAPTER 454 - ATTORNEYS AT LAW

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 an LLB or JD, 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 Florida. 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 case of State ex rel. The Florida Bar v. Sperry, 140 So.2d 587, 591 (1962), the Court opined "We think that in determining whether the giving of advice and counsel and the performance of services in legal matters for compensation constitute the practice of law it is safe to follow the rule that if the giving of such advice and performance of such services affect important rights of a person under the law, and if the reasonable protection of the rights and property of those advised and served requires that the persons giving such advice possess legal skill and a knowledge of the law greater than that possessed by the average citizen, then the giving of such advice and the performance of such services by one for another as a course of conduct constitute the practice of law".

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 Florida code of professional conduct which is modelled on the ABA model code (see:http://www.floridabar.org/divexe/rrtfb.nsf/FV?Openview&Start=1&Expand=4#4).

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 Florida bar: http://www.flabar.org/

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 Florida in mode 1 for the practice of home country law and international law (to the extent this is incorporated in home-country law). A service supplier regularly supplying services in Florida must be licensed as an FLC.

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" firms present in Florida are DLA Piper, Hogan Lovells and Dentons who are all established under the US arm of their Swiss vereins.

 There is an express rule allowing temporary practice by foreign lawyers.
The relevant legislation is Rule 4-5.5 of the rules regulating the Florida Bar.  This is available online through www.floridabar.org.  Conditions or restrictions on scope of practice are described in Rule 4-5.5
 

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 Florida provided they meet the requirements of the Florida Bar 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 can become a foreign legal consultant (see Florida Bar rules available online at www.floridabar.org).  Rule 16.3.1 sets out the scope of practice which is as follows: The practice of a foreign legal consultant shall (1) be limited to those regarding the laws of the foreign country in which such person is admitted to practice as an attorney, counsellor at law, or the equivalent;  (2) not include any activity or any service constituting the practice of the laws of the United States, the state of Florida, or any other state, commonwealth, or territory of the United States or the District of Columbia including, but not limited to, the restrictions that such person shall not: (A) appear for another person as attorney in any court or before any magistrate or other judicial officer or before any federal, state, county, or municipal governmental agency, quasi-judicial, or quasi-governmental authority in the state of Florida, or prepare pleadings or any other papers in any action or proceedings brought in any such court, or before any such judicial officer, except as authorized in any rule of procedure relating to admission pro hac vice, or pursuant to administrative rule; (B) prepare any deed, mortgage, assignment, discharge, lease, agreement of sale, or any other instrument affecting title to real property located in the United States, or personal property located in the United States, except where the instrument affecting title to such property is governed by the law of a jurisdiction in which the foreign legal consultant is admitted to practice as an attorney, counsellor at law, or the equivalent; (C) prepare any will or trust instrument affecting the disposition of any property located in the United States and owned by a resident thereof nor prepare any instrument relating to the administration of a decedent's estate in the United States;  (D) prepare any instrument with respect to the marital relations, rights, or duties of a resident of the United States or the custody or care of the children of such a resident; (E) render professional legal advice on the law of the State of Florida, the United States, or any other state, subdivision, commonwealth, or territory of the United States, or the District of Columbia (whether rendered incident to the preparation of a legal instrument or otherwise); or(F) render any legal services without utilizing a written retainer agreement that shall specify in bold type that the foreign legal consultant is not admitted to practice law in the state of Florida nor licensed to advise on the laws of the United States or any other state, commonwealth, territory, or the District of Columbia, unless so licensed and that the practice of the foreign legal consultant is limited to the laws of the foreign country where such person is admitted to practice as an attorney, counsellor at law, or the equivalent.

Foreign legal consultants must use the title "Foreign Legal Consultant, Not Admitted to Practice Law in Florida" alongside their home title. They must provide clients with a letter disclosing the extent of their professional liability insurance coverage and make it clear to clients what services they are not permitted to provide under Florida law and that clients do not have recourse to the Clients' Security Fund.  They must maintain an office in Florida and provide an annual sworn statement to confirm that they remain in good standing with their home Bar.

Licensure is subject to meeting requirements of registration, a minimum age of 26 years, an experience requirement (5 of the 7 years preceding registration must have been spent practising law of the foreign country in which he/she is admitted and which has a professional disciplinary system which is consistent with that of the Florida Bar), provision of a certificate of registration and good standing with home-country bar (no disciplinary actions within 10 years), a character reference, and a sworn statement to abide by the Rules of Professional Conduct.

Foreign lawyers may provide services without registration under rule 4-5.5 of the Florida Bar rules,  if these are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding held or to be held in Florida or another jurisdiction and the services are not services for which the forum requires pro hac vice admission, (A) if the services are performed for a client who resides in or has an office in the jurisdiction in which the lawyer is admitted to practice, or (B) where 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.

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

Foreign lawyers are not included under the scope of the Florida pro hac vice rule (1-3.10).

Can foreign lawyers requalify as local lawyers?

A foreign lawyer can obtain a full licence to practise law in this jurisdiction by sitting the Bar exam.  These rules are the same as those applicable to a local applicant.  Information about the Florida Bar exam is available online at www.floridabarexam.org.

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

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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