Protecting the Home Turf: National Bar Associations and the Foreign Lawyer

INDIANA JOURNAL OF GLOBAL LEGAL STUDIES Protecting the Home Turf: National Bar Associations and the Foreign Lawyer Brendan K . Smith 0 1 0 This Note is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Journal of Global Legal Studies by an authorized administrator of Digital Repository @ Maurer Law. For more information , please contact , USA 1 Indiana University Maurer School of Law , USA Follow this and additional works at: http://www.repository.law.indiana.edu/ijgls Part of the International Law Commons, and the Legal Profession Commons Recommended Citation This note addresses the issues raised by domestic laws and bar associationslimiting the practice of foreign lawyers. It looks at how the increase in globalization has led different countries to take different approachestoward dealing with these foreign lawyers. There are complex and varying reasons for how a country approachesforeign lawyers, as is demonstrated particularly through the actions of Brazil, India, and Japan. Also, it appears that emerging, but not as of yet established, global economic powers have decided it is in their interest to severely restrict the activity of foreign lawyers. The note suggests that these emerging powers should take the approach that Japan has taken and incrementally liberalize their rules regarding foreign lawyers and law firms. Despite the increased liberalizationdemonstrated by Japan and some states in the United States, there is little indication that emerging powers will lift theirprotectionistmeasures anytime soon. INTRODUCTION Globalization is here to stay, and professionals are not immune to its effects. Whether globalization is good or bad is up for debate,' but the fact remains that it is a part of life for modern professionals. 2 Much of this has to do with the fact that travel among countries has proliferated in recent years and that technology allows people throughout the world Indiana Journal of Global Legal Studies Vol. 21 #2 (Summer 2014) @Indiana University Maurer School of Law to remain in quick, constant contact with each other. Due to the increased mobility of people in the world, particularly modern professionals, countries must determine whether they are open to globalization or prefer to shutter themselves away from its ever increasing influence. 3 While some professional degrees are easily transferrable, 4 lawyers and those holding law degrees are in a fairly unique position due to the fact that most lawyers' jobs are entirely dependent on the law of the country and, often times, the specific jurisdiction in which they practice. This unique position of the legal professional has led some national and local bar associations to introduce rules that restrict the practice of foreign lawyers.5 While this protectionism is not necessarily a bad thing, as domestic lawyers educated within a country are often better suited to handle matters dealing with national law, it also produces undesirable side effects. Furthermore, globalization does not show significant signs of stopping or even slowing down. Protectionist measures may simply be forestalling the inevitable when it is more valuable to a country to get ahead of the curve and bring in the most qualified lawyers possible, regardless of where they are educated. This note addresses the issue presented by the globalization of the legal profession and how various countries have reacted to this movement. Within the United States, there have been varying approaches that will be addressed, but some of the states that are most influential globally, such as New York, have relaxed their rules regarding foreign lawyers and the practice of local law, which may be an indication of where things are moving.6 The first section of this note addresses how various countries, including the United States, Brazil, India, and the United Kingdom, have confronted the issue of foreign lawyers working within their jurisdictions. While some of these countries share a common law heritage, it does not necessarily mean they allow lawyers educated in foreign common law countries to practice local law. The second section discusses the concerns raised by the protectionist measures put in place to regulate foreign lawyers.7 The third section then explores whether there is a way to resolve the issue of the foreign lawyer practicing local law. This section also discusses whether the protectionist measures are merely an attempt to forestall the inevitability of the globalization of the legal profession. I. VARYING APPROACHES TO THE FOREIGN LAWYER Whether a particular bar association likes it, foreign lawyers exist and their role will continue to expand as globalization continues to expand. In the last fifteen or so years, tertiary education around the globe has expanded drastically.8 As law school is included in the increase of tertiary education, more people are receiving le (...truncated)