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USA - Texas International Trade in Legal Services

United States of America - Texas International Trade in Legal Services

HOME COUNTRY LICENSING QUESTIONS

Is there legislation governing the legal sector

TEXAS STATUTES AND CODES. GOVERNMENT CODE. TITLE 2. JUDICIAL BRANCH. SUBTITLE G. 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, a JD, satisfy character and fitness to practice requirements, and have passed the Alabama State 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 Texas. The right to practise on a temporary basis in another state or to appear pro hac vice in another state depends on the explicity permission of that state.

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

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TEXAS STATUTES AND CODES. GOVERNMENT CODE. TITLE 2. JUDICIAL BRANCH. SUBTITLE G. ATTORNEYS. CHAPTER 81. STATE BAR. SUBCHAPTER G. UNAUTHORIZED PRACTICE OF LAW
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§81.101. Definition.
(a) In this chapter the “practice of law” means the preparation of a pleading or other document incident to an action or special proceeding or the management of the action or proceeding on behalf of a client before a judge in court as well as service rendered out of court, including the giving of advice or the rendering of any service requiring the use of legal skill or knowledge, such as preparing a will, contract, or other instrument, the legal effect of which under the facts and conclusions involved must be carefully determined.
(b) The definition in this section is not exclusive and does not deprive the judicial branch of the power and authority under both this chapter and the adjudicated cases to determine whether other services and acts not enumerated may constitute the practice of law.
(c) In this chapter, the ""practice of law"" does not include the design, creation, publication, distribution, display, or sale, including publication, distribution, display, or sale by means of an Internet web site, of written materials, books, forms, computer software, or similar products if the products clearly and conspicuously state that the products are not a substitute for the advice of an attorney. This subsection does not authorize the use of the products or similar media in violation of Chapter 83 and does not affect the applicability or enforceability of that chapter.
In April 2001, the Texas UPL Task Force recommended changing 81.101 to the following:
§ 81.101 Definitions
A. The “practice of law,” as used in this chapter, includes
1. Providing legal representation;
2. Providing legal advice;
3. Preparing or negotiating, in whole or in part, a will, trust, contract, conveyance, pleading, or other instrument to the extent such preparation or negotiation is performed or offered explicitly or implicitly to provide legal advice or legal representation; or
4. Those activities described in section 81.102.B.
B. “Legal representation” means acting as an advocate in governmental adjudicative proceedings in a court or administrative agency to determine the specific rights or obligations of one or more persons.
C. “Legal advice” means acting in a professional capacity as a personal advisor to another person as to the specific rights or obligations of one or more persons through the interpretation and application of laws, regulations, and other legal standards;
D. “In a professional capacity” means acting i) with the expectation that compensation for such advice will be provided by or on behalf of the person receiving the advice or that such compensation, although ordinarily expected by the provider, will be waived for charitable or civic reasons, ii) with the express or implied representation that the provider is an attorney or lawyer, or iii) as part of a pattern of recurring conduct in which the provider holds himself or herself out as an advisor having special competence in the interpretation and application of laws, regulations, and other legal standards.
E. “Individual” means a human being.
F. “Person” means an individual, corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, or any legal entity.
G. “Attorney” or “lawyer” means an individual who is a member of the state bar or is otherwise licensed and in good standing to practice law in another state of the United States.
H. The definition of the practice of law in this section is not exclusive and does not deprive the judicial branch of the power and authority to determine whether other services and acts not enumerated may constitute the practice of law.
§83.001. Prohibited Acts. (Current) -25-
(a) A person, other than a person described in Subsection (b), may not charge or receive, either directly or indirectly, any compensation for all or any part of the preparation of a legal instrument affecting title to real property, including a deed, deed of trust, note, mortgage, and transfer or release of lien.
(b) This section does not apply to:
(1) an attorney licensed in this state;
(2) a licensed real estate broker or salesman performing the acts of a real estate broker pursuant to The Real Estate License Act (Article 6573a, Vernon’s Texas Civil Statutes); or
(3) a person performing acts relating to a transaction for the lease, sale, or transfer of any mineral or mining interest in real property.

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

No

What legal forms can lawyers work in? (e.g. self employment, partnership, limited liability partnership, multi-disciplinary partnership, incorporation)

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 Texas code of professional conduct which is modelled on the ABA model code (see: http://www.supreme.courts.state.tx.us/rules/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 local State code.

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

Licences are issued by the Texas Bar (http://www.texasbar.com/am/template.cfm?section=home)

   

INDIVIDUAL FOREIGN LAWYERS

Are there any explicit rules or restrictions other than visas on fly in fly out practice of law? Ie. Do you need to obtain a licence for temporary practice?

Foreign lawyers may not practice on a temporary basis but must maintain an office in Texas in order to practice law in the State (Texas Board of Legal Examiners Rule XIV -Foreign Legal Consultants)

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 Texas. 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 (see Texas Supreme Court Rules available online at http://www.ble.state.tx.us/one/flc_main2.htm). The scope of practice permitted to Foreign Legal Consultants includes: The practice of home country law; the practice of international law, to the extent it is incorporated in home-country law, the practice of 3rd-country law and US law are not permitted.  The Supreme Court may register anyone who:    (a) 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;  (b) 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 actively and substantially been engaged in the lawful practice of law of the said foreign country in that country or elsewhere;  (c) possesses the good moral character and general fitness requisite for a member of the Texas Bar; (d) is at least twenty-six (26) years of age; and  (e) intends to practice as a Foreign Legal Consultant in Texas and to maintain an office in Texas for that purpose.

Are there any conditions that must be fulfilled once a foreign lawyer has been granted a limited licence (e.g. residency requirement)

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 registration, a minimum age of 26 years, an experience requirement (5 of the 7 years preceding registration must have been spent practising law), meeting the professional liability insurance requirement, providing a certification of registration and good standing with home-country bar, and taking an oath to abide by the State Bar Act, the State Bar Rules, and the Texas Disciplinary Rules of Professional Conduct.

Are foreign lawyers permitted to undertake arbitration and mediation?

 

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

 

Effective September 1, 2003, §82.0361 of subchapter B of chapter 82 of the Texas Government Code, was amended to establish a pro hac vice fee of $250 for out-of-state lawyers who petition a Texas court to appear in a specific Texas case. These fees are to be deposited into the Basic Civil Legal Services Fund for low-income Texans.

Can foreign lawyers requalify as local lawyers?

 

 

 

A graduate of a foreign non-correspondence law school accredited by its jurisdiction can take the exam if he/she holds a valid law license issued by that jurisdiction provided: he/she has 5 out of last 7 years of lawful practice in the foreign nation or elsewhere and either demonstrates that the law of the foreign nation or elsewhere is comparable to that of Texas or holds an LL.M. from an ABA-approved law school (not by correspondence or distance learning); or he/she has 3 out of last 5 years of lawful practice in the foreign nation or elsewhere, demonstrates that the law of the foreign nation is comparable to that of Texas, and holds an LL.M. from an ABA-approved law school (not by correspondence or distance learning). In all events, the applicant must demonstrate that he/she holds the equivalent of a J.D. I
 

FOREIGN LAW FIRMS

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

Are there different types of foreign law firm 'licence'  (e.g. Joint Law Venture, stand alone foreign licence etc)

Not applicable

Is there a quota on the number of licences available?

Not applicable

Are there geographical restrictions on foreign firm licences or on the number of branches a foreign firm can have?

No

Are there "scope of practice" rules that apply directly to foreign law firms (as opposed to lawyers themselves)? (e.g. home, host, international law), if so, what are they? No
Are there restrictions on the corporate form a foreign law firm can take? Not applicable
Are there rules about the name a foreign law firm can take? Foreign name is permitted
What entity grants a 'license' to a foreign law firm? If that entity is on the Internet, please provide the URL Not applicable

EMPLOYMENT AND PARTNERSHIP

Are there restrictions on the ownership share of foreign lawyers in a law firm?

 

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

Can a domestic lawyer enter into partnership with a foreign lawyer?

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

Can a domestic lawyer or domestic law firm employ a foreign lawyer?

Yes

   

OTHER USEFUL LINKS/SOURCES

Other useful sources or comments or links

 

Verified by

Office of Chief Disciplinary Counsel, State Bar of Texas (January 2014)