The USA and The UK

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The USA and The UK

Separated By A Common Law Tradition

Commentary

July 4, 2000

by George D. Pappas - Editor

As the American Bar Association (ABA) prepares for its Millennium Celebration in London this month we are reminded by the leaders of the U.S. legal profession about the common bonds that unite English and American Law.

While it is true that the "law" in the U.S. and the U.K. does remain firmly embedded in the common law traditions of precedent and judicial interpretation, what is not being celebrated is the common and widespread discrimination by many U.S. State Supreme Courts against foreign attorneys and foreign law graduates from common law jurisdictions.

Has anyone noticed haw easy it is for a barrister or solicitor form the UK, Canada, or other commonwealth countries -based on the common law- to enter the legal profession in the U.S. or even take a bar examination in the U.S.?

I'm sorry to report that most U.S. states (The exceptions are New York and California among others) will not recognize British law degrees, let alone other common law degrees. So where's the beef? What tradition are we talking about in London this summer between the ABA and The English Legal Profession?

In an era of rising global trade, and with more legal services demanded across national jurisdictions, its absurd that countries like the U.S. continue to support monopolistic and cartel based barriers to entry in their legal profession while at the same lobbying the EC for greater access for U.S. attorneys.

Between 1986 and 1993, for example, U.S. exports of legal services increased from $97 to $1453 million. U.S. imports of legal services over the same period increased from $40 to $326 million.

In the spring of 1999, Chief Justice Randall T. Shepard, Chairperson of the Section Legal Education and Admission section of the American Bar Association took direct aim at foreign attorney's studying in the U.S. for their LL.M's at ABA Law Schools. His objective - that State Supreme Court Justices, Bar Admission Officers, and state legislators- understand that the ABA does not "approve" of LLM degrees, but only "acquiesces" to a law school's decision to offer post-graduate law degrees so long as it does not undermine the ABA "approved" J.D. program at the same law school.

Translation - the ABA would like to encourage state bars to stop the use of the LL.M. as meeting bar entry education requirements. Translation - barrier to entry. Translation - monopolistic practices under the guise of protecting the public interest.

Fortunately, even within the ranks of the ABA there was outcry against this focus on foreign attorney's and their U.S. post - graduate law degrees. In a recent Legal Times article, Peter Ehrenhaft, vice chairman of the ABA International Law Section stated "[r]estricting foreign lawyers' ability to become members of the bar is an approach that would be contrary to what the International Law Section has been trying to encourage and contrary to national interests."

In the US, State Supreme Courts, not the Federal government, regulate entry into the legal profession. These states rights were retained since states already regulated entry into their legal profession prior to the formation of the US Constitution.

The Tenth Amendment of the U.S. Constitution states "The powers not delegated to the United States by the Constitution, are reserved to the States respectively, or to the people." In other words, at best the Federal government can only use its influence to nudge State Supreme Courts to liberalize their bar entry requirement with respect to foreign lawyers and foreign law graduates.

The federal government, however, does have some influence. While it cannot compel states to liberalize their bar regulations, they can certainly pull back the exclusive accreditation authority over U.S. law schools given to the ABA under the umbrella of the Department of Education.

The Department of Education is a Federal Department, and falls under the jurisdiction of Federal Law. The Federal Government should designate an additional accreditation agency in the U.S. to accredit foreign law degrees and foreign attorneys.

Most U.S. State Supreme Courts or their board of bar admissions who deny foreign attorneys and foreign law graduates admission to their bar examination base this largely on the ground that their state courts do not have the resources to evaluate foreign law degrees.

There are plenty of evaluation agencies in the U.S. - most of whom are used by admission committees at U.S. ABA law Schools to screen foreign applicants to U.S. law schools. Additionally, State Bars like California routinely list private evaluation organizations that assist their bar admission committee in evaluating foreign applicants.

NAFTA

The North American Free Trade Agreement (NAFTA) between Mexico, Canada and U.S. would appear to be liberalizing the legal profession between these trading block nations. Nothing could be further from the truth. The U.S., like Canada, has a sub-national control of the entry to its legal profession, that is, State Supreme Courts. At best, NAFTA is "encouraging" treaty members to influence the controlling bodies within their jurisdictions to liberalize barriers to entry against each other.

So what's the next step? Rather than vent into thin air in cyberspace, there is something we can do, you can write to the Malet Street Gazette, and express your views about this issue, and we will forward this information to our Federal Representative in Washington, D.C. As the Malet Street Gazette is U.S. based, we are entitled to lobby our "own" representatives for assistance.

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