In September 2016, scores of attorneys from across the globe descended on Washington, DC to attend the annual conference of the International Bar Association. At the same time, next door in Maryland, many of those same attorneys are prohibited from rendering legal advice or becoming partners in Maryland law firms. Two months later, the Board of Governors of the Maryland State Bar Association (MSBA) took the first step toward changing that rule. If things continue as expected, Maryland may soon become the 34th U.S. state to permit a "foreign lawyer" to practice as a "foreign legal consultant" in the state.
Why Is This Important?
A "foreign lawyer" is a lawyer educated solely in a non-U.S. law school who is not admitted to the bar of another U.S. state. A "foreign legal consultant" is a foreign lawyer who, subject to certain considerations, is licensed to practice in the state. Permitting foreign lawyers to practice as foreign legal consultants in Maryland would be a radical departure from existing rules.
Among other things, it would permit foreign lawyers to partner with Maryland lawyers, and it would enable foreign lawyers to provide guidance that is protected by the attorney-client and work-product privileges. By becoming "foreign legal consultants" licensed in Maryland, those foreign lawyers would be entitled and subject to the same rights and obligations set forth in the Maryland Lawyer's Rules of Professional Conduct that apply to a member of the Maryland bar. Such lawyers would also be subject to professional discipline in the same manner and to the same extent as a member of the Maryland bar. For example, foreign legal consultants would be required to name a resident agent for service of process and possess adequate professional liability insurance.
What Is the Current Law?
Currently Maryland prohibits foreign lawyers from practicing in the state, even if they were admitted to practice for years in their home jurisdiction. The only exception is for those foreign lawyers who are also admitted to the bar of another U.S. state. In an increasingly global economy, the majority of U.S. states view such prohibitions as antiquated. Maryland might soon agree.
In April 2015, the Chief Judge of Maryland's highest court tasked the Rules Committee in Maryland with examining the issue. The Rules Committee, in turn, sought comments from the bar association. By fall 2015, the International Law Committee of the MSBA began assembling a task force to prepare the report. Venable lawyers were active in the task force, and Alex Koff (a Venable partner in Washington, DC and Baltimore) served as its chair.
The task force began examining the issue in earnest in January 2016. The comprehensive report prepared by the task force is available here. It examines the rules in Maryland, the rules in other U.S. states, the model rules of the American Bar Association (ABA), the Conference of Chief Justices' Resolution Regarding Permitting Practice by Foreign Lawyers, the rules of selected foreign jurisdictions, and other background data relevant to the issue. It then focused on the economic impact of changing the rules and reasons for objecting to such authorization. The Task Force, working collegially and on the basis of consensus, ultimately recommended, subject to certain provisos, that Maryland should allow foreign lawyers to gain "foreign legal consultant" status within the state. Among other things, some key conditions are that the foreign lawyer demonstrate membership in good standing of the legal profession in her or his home country and that the practice of that lawyer in Maryland be limited to the subject matter and experience developed in her or his home country over the last 5 to 7 years.
The MSBA Board of Governors formally adopted the report of the task force on November 15, 2016. It is transmitting its recommendation supporting the admission of foreign legal consultants to Maryland's Rules Committee. If approved by the Rules Committee, the issue moves to the Court of Appeals, Maryland's highest court.
What Is Being Recommended?
The Task Force and MSBA Board of Governors recommend implementing the ABA Model Rules for the Licensing and Practice of Foreign Legal Consultants. If adopted by the Court of Appeals, a foreign lawyer would, among other things, be permitted to practice and maintain an office in the state after meeting certain licensing requirements. The scope of that lawyer's practice is limited, however. Among other things, the foreign legal consultant may render legal services but is not considered admitted to practice law. Specifically, the lawyer is prohibited from rendering legal advice on Maryland or U.S. federal law unless such advice is on the basis of advice from a person duly qualified in Maryland or another U.S. bar (such as a partner of the foreign lawyer). Foreign legal consultants also may not prepare documents related to U.S. real estate, wills and trusts, or family law. But they would be permitted to provide legal advice subject to the attorney-client and work-product privilege and may become partners in Maryland law firms.