USA - New York International Trade in Legal Services

Is there legislation governing the legal sector

 New York Consolidated Laws – Judiciary Law §§ 53 and 90 and Article 15 (§§ 460 through 499); Civil Practice Law and Rules Article 94

Under what title do lawyers practise?

Attorney-at-law, or Attorney and Counsellor-at-law

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

See New York Codes, Rules and Regulations, Part 520 (22 NYCRR part 520). An individual seeking admission to practice law has three options: (1) Admission Upon Examination, (2) Admission Without Examination, or (3) Admission Pro Hac Vice.
Admission Upon Examination:  the individual must take and pass the New York State bar examination after first completing a qualified course of study in law either (1) at an approved law school within the United States or its territories, or in a foreign country that meets specified substantive and durational criteria, or (2) by partial completion of law school study in combination with studying law in a law office within New York State. 
Admission Without Examination: an individual may be eligible for admission without taking the bar exam when such individual has actually practiced law or served as a judge or similar official for five of the last seven years in another state or territory of the United States, or in a foreign country whose jurisprudence is based upon the principles of English Common Law, and where such individual has received a law degree from an approved law school in the United States.
Admission Pro Hac Vice:  an attorney or the equivalent who is a member in good standing of the bar of another state, territory, district, or foreign country may be admitted pro hac vice (meaning “for this one occasion”) in the discretion of any New York court of record to participate in any matter in which the attorney is employed, for the duration of that matter. 
Every applicant for admission, regardless of method, is also required to establish proof of good moral character and general fitness to practice to the satisfaction of the Court through which the applicant has applied for admission.  Once admitted to practice, the admission process need not be renewed. 

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 New York. 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 New York State Judiciary Law uses the term "unlawful practice of the law" to include (a) any act prohibited by various sections of the penal law (b) any other act forbidden by law to be done by any person not regularly licensed and admitted to practice law in this state, or (c) any act punishable by the supreme court as a criminal contempt of court.  

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 or in a professional corporation. Fee sharing with non-lawyers is prohibited.

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

 The New York rules of professional conduct which is modelled on the form of the ABA model code (see:http://www.nysba.org/Content/NavigationMenu/ForAttorneys/ProfessionalStandardsforAttorneys/Professional_Standar.htm)

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? 

Registration/licensure is carried out by the New York State Court of Appeal (see http://www.nycourts.gov/ctapps/index.htm)  Attorney registration is biennial.

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 New York in modes 1 and 3 for the practice of home country law and international law (to the extent this is incorporated in home-country law) and 3rd country law and host law including federal law and that of other US states provided advice is taken from a suitably qualified person.

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 many foreign firms present in this market including law firms from the UK. Ireland, Germany, France, Spain, Italy, Australia/China, Canada.

Unless admitted pro hac vice, temporary practice by both foreign lawyers and lawyers from other US states is not permitted under New York rule 5.5.

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

Foreign lawyers would not be able to obtain visas to practise law in New York. It is possible that they may qualify under the USA's WTO commitments as "service salespersons" if they 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 obtain a licence to become a foreign legal consultant in New York.  A person licensed to practice as a legal consultant under this Part may render legal services in this State; subject, however, to the limitations that he or she shall not:
(a) 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 (other than upon admission pro hac vice pursuant to section 520.11 of this Title); (b) prepare any instrument effecting the transfer or registration of title to real estate located in the United States of America; (c) prepare: (1) 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 (2) any instrument relating to the administration of a decedent's estate in the United States of America;
(d) 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;
(e) render professional legal advice on the law of this State or of the United States of America (whether rendered incident to the preparation of legal instruments or otherwise), except on the basis of advice from a person duly qualified and entitled (other than by virtue of having been licensed under this Part) to render professional legal advice in this State on such law;
(f) in any way hold himself or herself out as a member of the bar of this State; or (g) carry on his or her practice under, or utilize in connection with such practice, any name, title or designation other than one or more of the following: (i) his or her own name; (ii) the name of the law firm with which he or she is affiliated; (iii) his or her authorized title in the foreign country of his or her admission to practice, which may be used in conjunction with the name of such country; and (iv) the title ""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)."")

FLCs must be in good standing with their home bar and abide by the State code of conduct

Are there any conditions that must be fulfilled for a foreign lawyer to qualify for a limited licence? (e.g. prior practice)

 Licensure is subject to meeting the requirements of NYCRR § 521.1  which states:
(a) In its discretion the Appellate Division of the Supreme Court, pursuant to subdivision 6 of section 53 of the Judiciary Law, may license to practice as a legal consultant, without examination, an applicant who:
(1) is a member in good standing of a recognized legal profession in a foreign country, the members of which are admitted to practice as attorneys or counsellors at law or the equivalent and are subject to effective regulation and discipline by a duly constituted professional body or a public authority;
(2) for at least three of the five years immediately preceding his or her application, has been a member in good standing of such legal profession and has actually been engaged in the practice of law in such foreign country or elsewhere substantially involving or relating to the rendering of advice or the provision of legal services concerning the law of such foreign country;
(3) possesses the good moral character and general fitness requisite for a member of the bar of this State;
(4) is over 26 years of age; and
(5) intends to practice as a legal consultant in this State and to maintain an office in this State for that purpose.
(b) In considering whether to license an applicant to practice as a legal consultant, the Appellate Division may in its discretion take into account whether a member of the bar of this State would have a reasonable and practical opportunity to establish an office for the giving of legal advice to clients in the applicant's country of admission. Any member of the bar who is seeking or has sought to establish an office in that country may request the court to consider the matter, or the Appellate Division may do so sua sponte.

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

Yes - foreign lawyers may appear on a case by case basis at the discretion of the Court (NYCRR § 520.11 Admission Pro Hac Vice: (a) General. An attorney and counsellor-at-law or the equivalent, who is a member in good standing of the bar of another state, territory, district or foreign country may be admitted pro hac vice: (1) in the discretion of any court of record, to participate in any matter in which the attorney is employed. See http://www.courts.state.ny.us/ctapps/520rules.htm#11)

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

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

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