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February 2001

For some years, the Law Society has been in discussion with the Court of Appeals in Albany, New York regarding the regime for requalification of solicitors from England and Wales in New York. The basis of these discussions has been the complaint of the Law Society that the rules operated by the Court for requalification distinguish between qualified solicitors with undergraduate degrees in law and qualified solicitors with undergraduate degrees in a non-law discipline. Solicitors with law degrees are usually entitled to go straight to take the New York Bar Exam. Solicitors without law degrees are usually obliged to take a further twenty credits in professional law subjects (including basic courses in American law) at an approved law school in the United States – usually a one year’s course at an American university – before they are entitled to take the New York Bar Exam.

The contention of the Law Society is that, based upon the qualification process for English solicitors, the Court of Appeals should not look behind the title of solicitor, and should treat all solicitors in the same way – that is, all solicitors should be entitled to go straight to take the New York Bar Exam without being required to undertake further education and credits in the United States.

The Law Society represents solicitors in England and Wales, but the route to qualification in England and Wales for both solicitors and barristers enables people to become lawyers based on an undergraduate law degree or a degree in a non-law discipline. The two routes are, essentially, as follows:

with a law degree – usually a candidate will take a three year undergraduate law degree at a university, followed by the one year Legal Practice Course (a vocational course required by the Law Society, the English equivalent of a US state bar exam), followed by two years of a training contract (or practical training) in a firm of solicitors;

with a non-law degree – a candidate will usually take a three or four year undergraduate degree in a non-law subject, followed by two years of academic law studies and two years of practical training in a firm of solicitors. The first year of study consists of a post-graduate conversion course – called the Common Professional Examination (CPE) or Post Graduate Diploma in Law – which converts the non-law degree into a law degree during a year’s intensive study. The second year consists of the Legal Practice Course required by the Law Society, as above under (a), followed by two years of a training contract (or practical training) in a firm of solicitors.

 

More detail on these two principal routes to qualification as a solicitor is given in the Annex to this paper. An informal comparison between the CPE and training contract route to qualification, and the American route, is also included.

It may be considered unusual that lawyers can qualify without an undergraduate law degree, but the United Kingdom has always had a practical approach towards the training of its lawyers. Indeed, many major London law firms often prefer candidates to come to them without law degrees (because they have experience of subjects outside law, and because they bring specific skills such as languages or science), and many famous lawyers and judges in the UK have come to the law through this route. If the English legal profession were considered a failure, one might wonder whether this route was to blame, but in fact the English legal profession is booming and is exporting its services very successfully around the world (including to the United States).

There are some variations on the above route, which also cause problems in New York. It is possible, for instance, to undertake a two-year law degree in certain UK universities after completing a first degree, but these degrees are also not recognised, because the rules drawn up the New York Court of Appeals recognise only a three year law degree. In addition, solicitors who have joint honours degrees in law and another subject (where the content of the law part satisfies the Law Society’s requirements relating to the study of law, so being exempt from the CPE) can still find themselves treated in New York as non-law degree holders, even if they go on to take a UK master’s degree in law (since it is the undergraduate study alone which is counted for the purpose of satisfying the Court’s durational rule).

Finally, there are substantial differences between the systems of education in the US and the UK, which make the equivalence argument of the Court difficult to impose with fairness. For instance, at ages 16-18 (10^th grade and higher) in the UK, children are already specialising in three core subjects (having started their education at four). In the US children start kindergarten later and remain in general education through their US college degree. Again, certain courses taken during the first year or two of a US college degree are said to be equivalent to the UK’s final school qualification, A-levels. For example, British undergraduate students attending US colleges are frequently able to get advance placement credits of courses at US colleges in respect of specific subjects passed at A-level.

It should be noted that US lawyers are more liberally treated if they wish to requalify as solicitors in England and Wales than vice-versa. No distinction is made by the Law Society between Attorneys from different states. Accordingly, a New York lawyer can gain admission as a solicitor of England and Wales by sitting and passing three papers (Property, Litigation, and Professional Conduct and Accounts), and the requirement to take one or more of these papers may be waived depending on the experience of the lawyer concerned.

It appears to be only the State of New York which looks at the length of academic legal study at undergraduate level behind the title of solicitor to decide which solicitors should be entitled to go straight to take the State Bar Exam, and which should not. No jurisdiction outside of the United States (to our knowledge) distinguishes between solicitors with law degrees and those with non-law degrees. Instead, they usually look at the title of solicitor, and they recognise it as an acceptable title reflecting between 3-4 years’ academic and practical legal qualification in addition to an undergraduate degree qualification. Accordingly, these other jurisdictions treat solicitors (however they have studied in their undergraduate years) in the same manner for the purposes of their own requalification. Even in the United States, the State of California, for instance, does not distinguish between different backgrounds of solicitors for the purpose of deciding who shall be able to take the California State Bar exam (in fact, all solicitors can straight away take the California State Bar examination).

There has been a study undertaken in the European Union of the way that lawyers qualify in various jurisdictions of the EU. In nearly all cases, it takes six or seven years to qualify as a lawyer. In some, such as Italy and Spain, all the time is spent in academic study, and a law graduate is entitled on graduation immediately to set up as a lawyer. In others, such as the United Kingdom, the time is split between academic study (three to four years) and practical training (a further three to four years). Within the European Union, however, there is a common assumption that all the legal jurisdictions are acceptable ones. It is understood that different cultures make different assumptions about what makes up good lawyers – so that in Latin countries, it is academic study, whereas in Anglo Saxon countries, there is a more practical emphasis. No-one in the EU makes, or is indeed allowed by law to make, cultural assumptions that only their method of qualification is acceptable. What counts is the title, and not the route to the title (once the assumption has been made that the Member State concerned has an acceptable legal system).

Using this argument between the two jurisdictions discussed in this paper, both the US and UK systems involve at least a three year post-graduate qualification process. In the US, this involves at least three years at law school. In the UK, this involves one year at law school (or two if there is a non-law degree), plus two years’ practical training. This should answer the fear that recognition by the Court of Appeals of the non-law degree route may open a backdoor to New York lawyers wishing to qualify in their own jurisdiction without a law degree, since to do so they would have first to have their non-law degree recognised in England and Wales, and then take four further years of rigorous training before the title of solicitor would be granted to them: one year of the Common Professional Examination, one year of the Legal Practice Course, and then two years of a training contract with a firm in England and Wales.

New York State is respectfully requested, therefore, to review its assumption that all foreign lawyers should undertake the same durational educational requirements to qualify in exactly the same way as a typical New York lawyer is required to do, and that anything which is different must conform to local assumptions.

Until recently, the main victims of the obstacles put in the way of solicitors without law degrees to requalify in New York were individual solicitors who had come to New York because of private circumstances (such as marriage). However, there has recently been a shift in the legal services market. As is well-known, one of the big City of London law firms, Clifford Chance, has merged with a big US firm, Rogers & Wells, and further mergers are in the offing. In any case, the large City of London law firms, which operate around the world, have recently expanded their operations in New York. In addition, the London branch offices of many large New York law firms established both in London and New York are employing more and more solicitors, as a result of the dominance of the English and US legal systems and the need to have dual capacity. For instance, it was recently reported in the English legal press that one of the major New York firms was going to employ over 200 more solicitors in the coming two to three years. Even now, the major US firms employ dozens and dozens of solicitors in London, of whom about half will usually have qualified through the CPE route.

Consequently, there are many more solicitors in New York. The firms for which they work usually expect them to take the New York Bar exam. It comes as a surprise to many of them to learn that they are discriminated against on the basis of how they qualified. This is the first time that their route to qualification will have been questioned, and it clearly would not have been an issue in their transfer to the New York offices of the London or New York firm concerned. Those who have law degrees can go straight to take the New York Bar exam. Those without law degrees are suddenly faced with the prospect of taking a year off from their careers to obtain their twenty further academic credits and, just as importantly, they are faced with an expense of more than $27,000. This year off and significant cost are serious and unnecessary obstacles to the provision of international legal services in New York. New York prides itself on a liberal but strong regime, but there is in fact a major obstacle in place for certain solicitors from England and Wales.

Obviously, the New York bar is the body to decide what is in its interests, but the Law Society would respectfully point out that it is New York which will benefit from greater numbers of highly qualified English solicitors obtaining its title, and then returning to London and other European capitals to practise New York law, ensuring the spread of New York law to other jurisdictions. It may be that, otherwise, these English solicitors will qualify in other US jurisdictions which allow them to take their Bar examination – such as in California, or soon in Illinois.

The recommended solution to this problem is for the Court of Appeals to change its rules so that, at least for solicitors from England and Wales, there would be no necessity to look behind the professional title. All solicitors from England and Wales would be able to take the New York Bar examination without obligatory further US legal education (although they would of course be wise to take Bar preparatory courses). If they fail the Bar exam, they fail, but they should not be prevented from being able to sit it in the first place. The New York Court of Appeals has said in discussions in the past that, if the New York Bar examination was the only test to whether a candidate should be admitted to the New York Bar, then any greengrocer or taxi driver could study for long enough and pass it. However, that is not the nature of the request here. What is being recommended is that candidates with a legal professional title supported by educational and practical training from a jurisdiction where lawyers go through a rigorous training process, and where they are highly regulated (and indeed which has many similarities with New York’s own legal regime), should be eligible to take the State Bar examination, without looking behind that title to see whether the route to qualification is durationally identical to a typical New York route to qualification.

It may be countered that the Court cannot easily do something just for English solicitors, when it is responsible for regulating the admission of lawyers to the New York Bar from all over the world. The Law Society has no wish to be in such a position, and is obviously quite happy for the rule to be changed, for example, to allow others in a similar position to be granted eligibility to sit the Bar exam. However, the Law Society has no mandate to lobby for anyone other than its own members.

Accordingly. the Court of Appeals is urged to look at this proposal favourably.

In a globalised world, unnecessary and expensive obstacles to requalification should be examined, particularly if New York wishes to retain its image as a liberal and flourishing international legal services centre. It is recognised that there are serious domestic problems within the legal education sector in the United States between approved and non-approved law schools, but this should not be used to justify the maintenance of assumptions against appropriately foreign-qualified lawyers about the best method for a lawyer to qualify. Arguments used domestically should not be held up against foreign legal systems where different cultural assumptions apply as to how a lawyer can best be qualified. No-one is requesting that solicitors from England and Wales should be entitled to automatic admission to the New York Bar. All that is requested is that the current obstacle for solicitors with non-law degrees to being able to sit the New York Bar exam should be removed.

Accordingly, the Court of Appeals in New York is respectfully urged to reconsider its rules on requalification of foreign lawyers and to permit all solicitors from England and Wales with non-law degrees to sit the State Bar exam without mandatory additional legal education.

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