Foreign attorneys have long been part of the legal practice in the United States, from the first non-American to be admitted to practice in the United States to foreign attorneys outside of the United States transforming the delivery of domestic legal services. In recent years, several jurisdictions have revised their admission rules to allow foreign attorneys to practice stateside. Last year, Illinois amended its Supreme Court rules to allow foreign in-house counsel limited admission to practice in Illinois.
Now, North Dakota has joined the foreign attorney practice evolution and expanded its own admission rules to allow pro hac vice admission for non-US lawyers.
North Dakota will join a number of United States jurisdictions, including Illinois, to offer this provision to foreign attorneys.
Beginning October 1, 2016, foreign attorneys will be eligible to obtain pro hac vice admission to serve as counsel in a North Dakota proceeding before a court, agency, or tribunal. The state amended its Admission to Practice Rule 3 and North Dakota Rule of Professional Conduct 5.5(c) to accommodate the change.
According to the Admission to Practice Rule, a “foreign attorney” refers to a person admitted to practice law in a non-United States jurisdiction. These attorneys, like us in the US, are subject to regulation and discipline by a duly constituted professional body. They must also be in good standing – never disbarred or suspended from practice.
Foreign attorneys can obtain pro hac vice admission so long as a U.S. associate lawyer works alongside the foreign attorney in the proceeding.
Under the rule, this associate lawyer is held responsible to the client and the conduct of the proceeding. He or she must also help advise the client on the substantive law of the United States jurisdiction in question and procedural issued in the proceeding. Likewise, if the associate lawyer’s judgment differs from the foreign lawyer, he or she must advise the client accordingly.
To obtain pro hac vice admission, non-US lawyers must register each calendar year that the attorney provides legal services in the state.
To register, foreign attorneys must file an affidavit with the North Dakota State Board of Law Examiners. The document must include:
- the jurisdictions in which the lawyer is admitted to practice law and the number of years of admission;
- documentation proving the lawyer’s admission to practice law and current good standing in the foreign jurisdiction he/she belong to — if the documents are not in English, the lawyer shall submit with the affidavit an English translation and satisfactory proof of the accuracy of the translation;
- whether the lawyer is presently subject to a disciplinary proceeding in any jurisdiction, is under any restriction or probation in the practice of law in any jurisdiction in which the lawyer is licensed, and/or whether the lawyer is now or has ever been suspended or disbarred in any jurisdiction;
- documentation providing where the lawyer received a juris doctor or equivalent degree from a law school approved or provisionally approved for accreditation by the American Bar Association;
- whether the lawyer has appeared in any North Dakota actions based on pro hac vice admission during the past three years, and how many years the lawyer previously registered under this rule; and
- the fee required for a lawyer who has been licensed in North Dakota for five years or more
A foreign attorney may serve pro hac vice for five years or until the lawyer becomes eligible for admission based on practice as provided by Rule 7A — whichever comes first. After this, he/she must apply for and be admitted to the practice of law in North Dakota.
He or she must also complete 45 hours of approved coursework in Continuing Legal Education during each three-year period the lawyer is registered. Like other North Dakota attorneys, the attorney will file a report as provided in the North Dakota Rules for Continuing Legal Education.
[In need of hours? The Commission developed a free 1-hour online CLE for all attorneys, especially foreign in-house counsel. The course highlights ethical dilemmas in-house counsel may encounter on their jobs, advising them how to handle those issues in accordance with both the ethical rules and standards of professionalism.]
As globalization and technology flourish, which jurisdiction will be next to permit non-US lawyers admission to practice in America?