The Federalization of the Oklahoma Law License
By Kimber J. Palmer
Who decides who gets to be a lawyer? The short answer is other lawyers. Since the early days of the profession of the practice of law in America, prospective lawyers gained their education and admittance to the bar by associating, studying with and being accepted by older, experienced lawyers.1
Today, the legal profession strives to maintain its independence through self-regulation. The American Bar Association’s Model Rules of Professional Conduct espouses this long-held premise2 by noting that the legal profession is unique among professions, exemplified by its close relationship with government and law enforcement. The ABA maintains self-
regulation, and independence from the other branches of government is important to the preservation of democracy, and it provides agility to better guard against the abuse of legal authority.3 However, with the advent of some international free trade agreements, the legal profession in the United States is now facing the real possibility of going from a self-regulated profession to something more akin to a federally regulated business form. While the U.S. is a signatory on at least 15 international trade agreements4 involving the delivery of legal services, the present concern came sharply into focus following the signing of the General Agreement on Trade and Services (GATS).
Signed by the U.S. in 1995, GATS was touted by the World Trade Organization (WTO) as a “landmark achievement.”5 GATS membership requires its signatory countries to allow market access to its member-country service providers, including lawyers, and they must be given “national treatment.” National treatment means that the member-countries must treat a foreign service provider as “favourably as domestic firms”6 unless an exemption is claimed. No exemption is claimed by the U.S. for legal services. National treatment also includes the setting of qualifications and standards for those providing such services, which would include license granting.7
The theory behind all free trade agreements is that when barriers to trade between countries are reduced, market forces are able to influence the market, particularly in the allocation of resources and there will be more buying and selling for all.8 While not all nations did so, and though not required to do so, the U.S. included legal services among the list of professional services incorporated in its general obligation “commitments” under the treaty.9 Delivery of legal services under GATS includes four possible modes: a) non-resident member-country suppliers of legal services supplying services across a country’s border; b) easier ability of member-countries to buy legal services located in another WTO country; c) the ability of foreign suppliers of legal services to establish branch or representative offices in a WTO country; and d) the ability of foreign individuals to enter and stay in a WTO country in order to supply such services.10 In short, under GATS, the U.S. is required to allow international suppliers of legal services to compete on a level playing field with domestic suppliers of legal services here in the U.S.
Interestingly, there has been very little discussion of this major development and its impact on the legal profession by members of the American bar.11 Other professional services, such as banking and accounting, are included in GATS. Some authors believe the inclusion of professional services in the trade liberalization scheme will be detrimental to a profession. In a 2005 article12 written primarily about the field of accountancy, the author took the position that the treaty would result in a loss of local autonomy and overall the ability of “democratic societies to govern their economies.” The article opines the treaty will lead to a dismantling of domestic regulations of certain professions on the premise that such regulations act as barriers to trade, and eventually the ability of non-national regulators (state and local) to govern a profession will be limited. In this regard, there is little difference in regulation of the accounting profession and regulation of the legal profession.
The GATS does not create a private right of action by a party to enforce its provisions.13 It does allow, however, a country to use the dispute resolution provisions of the WTO if a country believes another is not following GATS. Shortly after the signing of the GATS, the European Union formally requested14 through the WTO, that the United States facilitate removing the requirement, held by many states, that a prerequisite to obtaining a license to practice law is U.S. citizenship. This American citizenship requirement is also maintained in Oklahoma.
Some foreign lawyers have sought to gain access to the practice of law in the U.S. through taking a state’s bar exam. In recent years, several states have revised their qualification rules and included provisions for bar exam applicants who received their law degree outside the United States. The National Conference of Bar Examiners and the ABA Section of Legal Education and Admission to the Bar maintain comprehensive statistics of the bar admission requirements of the 50 states and U.S. territories. The 2014 guide provides information as to which states, and under what circumstances, foreign-law-degreed applicants are allowed to take their bar exam.15 In 28 states and two territories, foreign law school graduates are eligible for admission into the practice of law in that state. Some of those states have special provisions for these foreign educated applicants, such as requiring their education be based in the English common law, requiring additional education at an ABA-approved law school, requiring previous admission in another U.S. jurisdiction, or that the applicant already have an established law practice in a foreign jurisdiction. A few states allow foreign educated law graduates admission into practice in their state without examination, based upon certain special provisions.
Oklahoma makes no allowance for a foreign-educated applicant to take the bar exam, or to be admitted to the Oklahoma bar. 5 O.S. Supp. (2004) §1.1, last amended in 2009, provides: “No person shall practice as an attorney and counselor at law in any court of this state who is not a citizen of the United States…” Our neighboring state of Texas, on the other hand, allows foreign-law-degreed applicants to take the Texas bar exam if the applicant receives an LL.M. from an ABA-approved law school, maintains a practice in a foreign jurisdiction, or upon a determination that their foreign legal education is equivalent to that of an ABA-approved law school. Statistics on the other states and U.S. territories and their requirements are available at the National Conference of Bar Examiners or the American Bar Association website.16
With the large amount of international business conducted in the border state of Texas, it may not be surprising that the Texas Supreme Court addressed this issue early in the new millennium. Rule II General Eligibility Requirements for Admission to the Texas Bar refers to certain exemptions contained within Rule XIII, Attorneys from Other Jurisdictions, amended in 2005. Rule XIII outlines the conditions under which foreign-educated bar applicants can be admitted to the Texas bar, with or without examination. These rules apply only to those who already hold a law license in another state or nation and who have “actively and substantially engaged in the practice of law” for at least five of the last seven years immediately preceding the filing of their application.17 In short, they treat all out of state lawyers the same, whether foreign or domestically educated.
There is no question that there has been a momentous increase in foreign law school graduates seeking licensure in the United States.18 In 2013, 5,928 persons whose legal education was obtained outside the United States took a bar licensure exam of one of the 50 states or five U.S. territories.19 Some authors argue that the time has come for the formation of an international network of lawyer regulators and that such organization could better deal with questions facing all lawyer regulators: who is competent, how standards of the practice are best regulated, and how the “bad apples” can be weeded out.20
There are few appellate cases regarding foreign educated bar candidates. The issue of foreign nationality and admission to a state’s bar was at issue in the case Karen LeClerc, et.al. v. Daniel E. Webb, et.al. 419 F.3d. 405 (5th Circuit, La. 2005). This case, consolidated with another similar case, was brought by “non-immigrant aliens,” defined by the court as persons who had temporary worker visa status (H-1b), who desired to sit for the Louisiana State Bar Exam. Each had graduated from a foreign law school, and had applied to take the exam. Louisiana bar rules allowed them to take their bar exam if they could demonstrate their foreign legal education to be equivalent to an education at an ABA-approved law school. They were unable to provide this equivalency. They brought suit, seeking injunctive relief and a determination that the denial of their taking the Louisiana bar was a violation of the Equal Protection Clause of the 14th Amendment. Finding that rational basis review, rather than strict scrutiny, was proper, and declining to grant the requested relief, the 5th Circuit Court of Appeals ruled that Louisiana’s rules passed constitutional muster, having been “designed to address local problems arising from [the] transitory status of nonimmigrant aliens.” The U.S. Supreme Court declined to grant certiorari.21 WTO, GATS, or other trade agreements were not mentioned in the opinion.
In January 2014, California courts ruled that an undocumented alien, Sergio Garcia, who was a graduate of a California law school and had taken and passed the California bar exam could not be precluded from being admitted to practice, by virtue of his undocumented alien status. The California Bar Association had sought to exclude him, urging that his illegal immigration status was a violation of law and was adverse to its requirement that only persons with moral fitness of character are admitted to the practice of law. Garcia had been born in Mexico, but he was raised and received his entire education (including law school) in the United States. After his situation was made public in 2013, the California Legislature passed a law which made legal residency status of a bar candidate immaterial in determining the candidate’s eligibility to admittance to the bar. The California Supreme Court then ruled that Garcia could be granted a law license. It appears, however, that his immigration status precludes him from earning money as a lawyer since he does not have a valid work permit or “green card.”22
As a direct result of GATS, and in order to address the issue of foreign lawyers practicing in the United States, the ABA adopted a resolution in August 2006.23 The resolution supported the efforts of the Office of the U.S. Trade Representative to develop transparency provisions regarding the domestic regulation of legal service providers, and to develop conditions pursuant to GATS that “do not unreasonably impinge” on the authority of a state to regulate the legal profession in their state. In 2009, the ABA adopted a model rule in an effort to assist various states dealing with foreign applicants seeking admission to a state’s bar. The model rule, essentially, recommends states require foreign educated applicants to obtain an LL.M. at an ABA-approved program that would include courses in American constitutional law, and further require that the foreign candidate be required to pass the state’s bar exam.
In 2012, the ABA Task Force on International Trade in Legal Services issued a white paper24 lauding the Georgia Bar for its having adopted new rules in dealing with the issues that have arisen due to GATS. The white paper noted that Georgia’s recognition of the international trade agreements, including GATS, was a step in the right direction, and that possible federal intervention in the regulation of law licensing was in the offing, stating:
… GATS has obligated all World Trade Organization WTO member states, including the United States, to avoid regulation of professional service providers “more burdensome than necessary to ensure the quality of the service.” However, because no national regulatory regime of lawyer regulation now exists in the United States, this obligation is implemented at the state level. ... Although the federal government could conceivably assert its treaty power to require state conformity to GATS rules,25 there is no political will to attempt such pre-emption at this time. (emphasis added)
The white paper goes on to discuss the various ways in which a foreign lawyer might wish to practice in the U.S. Foreign lawyers may wish to come here on a temporary, one-time basis, or as foreign-licensed in-house counsel for a company having overseas offices, as well as offices within the U.S. The foreign lawyer may want to come as consultant on foreign legal matters, or come seeking pro hac vice admission. They might also wish to become a fully licensed U.S. lawyer with their entire practice in the United States. In this ABA report, Georgia was commended for taking the initiative to form a committee on International Trade in Legal Services, for studying the applicable trends, rules and regulations, and making recommendations to the state bar addressing these issues.
It is surprising that 20 years out, there is very little discussion among lawyers about this pending phenomenon. What will be the ultimate effect of GATS on the legal profession? Will there be increased competition from outside the United States? Will there be increased opportunities to work abroad without hurdles by another country’s regulation? Will we experience a loss of state regulation of the legal profession? Will the federal government step in and begin regulation of the licensing of attorneys? There is no answer at this time. What is clear, however, is this issue is not going to go away. Short of the United States modifying GATS by withdrawing legal services, Oklahoma and all other states, remain vulnerable to being preempted by the federal government regarding its regulation of its legal profession.
1. Charles R. McKirdy, “Before the Storm: the Working Lawyer in Pre-Revolutionary Massachusetts,” 11 Suffolk University Law Review 46 (1976).
2. From the American Bar Association website: http://goo.gl/nHu0kf, last accessed Oct. 15, 2014.
3. Supra, note 2.
4. Laurel S. Terry, “From GATS to APEC: The Impact of Trade Agreements on Legal Services,” 43 Akron Law Review 675 (2010). This author has numerous articles on this subject and has been involved in research over many years. Her articles also appear on her university website: www.personal.psu.edu/faculty/l/s/lst3/.
5. World Trade Organization website: http://goo.gl/0ijqfi.
6. Paton, infra note11.
7. Lee, infra note 9.
8. Amar Gupta, et. al., “Evolving Relationship between Law, Offshoring of Professional Services, Intellectual Property, and International Organizations,” 21.2 Information Resources Management Journal 103 (Apr-Jun 2008).
9. Margaret Mikyung Lee, Legal Services in the World Trade Organization (WTO) and U.S. Effect, Congressional Research Service-The Library of Congress, Order Code RS22949. Sept. 12, 2008.
10. Lee, supra, note 9.
11. Paul D. Paton, “Legal Services and the GATS: Norms as Barriers to Trade.” 9 New England Journal of International and Comparative Law 361 (2003) (note: this article focuses mainly on GATS and Canada’s legal profession.)
12. Patricia J. Arnold, “Disciplining domestic regulation: the World Trade Organization and the market for professional services.” Accounting, Organizations and Society 30 (2005) 299-330 (available online at www.sciencedirect.com).
13. infra, note 17.
14. EU Initial Request to the United States, available at http://goo.gl/8peVCL.
15. National Conference of Bar Examiners 2013 statistics, last accessed Oct. 15, 2014. http://goo.gl/b6ySp2.
17. Texas Board of Law Examiners Rule VIII, www.ble.state.tx.us/Rules/NewRules/rulexiii.htm.
18. Laurel Terry, “Creating an International Network of Lawyer Regulators: The 2012 International Conference of Legal Regulators.” The Bar Examiner, Vol 82, No. 2 pp. 18-27 June, 2013.
19. National Conference of Bar Examiners 2013 statistics, supra.
20. Supra, note 19.
21. Leclerc v. Webb, 127 S.Ct. 344 (U.S. 2006).
23. ABA resolution: http://goo.gl/DARWAI.
24. International Trade in Legal Services and Professional Regulation: A Framework for State Bars Based on the Georgia Experience
25. Missouri v. Holland, 252 U.S. 416 (1920).
ABOUT THE AUTHOR
Kimber J. Palmer joined the faculty of Texas A&M International University in Laredo, Texas, in 2000. In addition to being an instructor of legal studies courses in the A.R. Sanchez Jr. School of Business, she serves as the university’s pre-law advisor. Previously, she practiced law in Oklahoma, primarily Oklahoma City. She is a graduate of OSU and the OU College of Law. She may be reached at firstname.lastname@example.org.
Originally published in the Oklahoma Bar Journal, OBJ 85 2319 (Nov. 1, 2014)