With the conclusion of the fourth round of negotiations for the EU – US Transatlantic Trade and Investment Partnership (TTIP) we look at the opportunity to deliver an improved trade in legal services between the EU and the US by tackling practice rights and market access blocks on either side of the Atlantic.

Current situation

The US is a key market for the Law Society, our members and their clients. UK law firms have set up offices in a number of states including New York, California, the District of Columbia and New Jersey. Many states permit solicitors to practice English law as a Foreign Legal Consultant (FLC) or take the bar exam to qualify locally. There are over 400 practising solicitors in the US, and many of our members work for US firms across their global offices.

However, not all US states offer the option for solicitors to register as FLCs and few have rules for a temporary FLC license. Not all states allow foreign law graduates to take the state bar, and even if they do, some states ask solicitors to undertake additional study at an ABA-approved law school if they qualified via the non-law degree route. With the exception of the District of Colombia, non-lawyer ownership of law firms is prohibited meaning English law firms that have converted to Alternative Business Structures (ABS) will find it hard to establish a US presence.

The rules for US lawyers and law firms across Europe vary. In England and Wales, we offer a relatively open market and around half of the 200 or so foreign law firms established here come from the US. Our Qualified Lawyers Transfer Scheme (QLTS) offers a fast track route to dual qualification for most US-qualified lawyers, and US lawyers can go into partnership with solicitors via ‘Registered Foreign Lawyer’ status. However, different EU jurisdictions have different rules in place and the US is keen to see more uniformity across Europe.

Our position

The Law Society is keen for the TTIP negotiators to be ambitious in seeking liberalisation on all modes of practice, on all types of legal work and in all 50 US states. This means rules on establishment and temporary practice in all 50 states, access to the bar exam for solicitors in all 50 states regardless of their route to qualification, and finding a proportionate solution to the issue of firm structures.

Challenges

There are two main challenges. Firstly, legal services regulation is not a federal matter in the US. Regulation takes place at state level and in most cases is carried out by the judiciary itself, i.e. the Chief Justices. What that means is that the US Federal Government negotiator cannot bind the state judiciaries and that the negotiations would need to include the Conference of Chief Justices for US commitments on legal services to be genuine, effective and binding.

The second challenge is even more daunting and lies in the fact that the US does not have, contrary to the EU, free trade in legal services at the domestic level. While, in the EU, a lawyer from one member state can enjoy the rights to practice on a temporary basis, establish permanently and/or requalify in all the other member states, a US attorney does not and his/her rights would very much vary on a state-by-state basis.

Next steps

The Law Society will continue to feed in to discussions the Department for Business, Innovation & Skills (BIS) and we are participating in talks at EU level through the CCBE (Council of Bars and Law Societies of Europe). We participated in the recent TTIP stakeholder presentations event in Brussels to outline our vision for legal services commitments under the negotiations and will follow up with both EU and US negotiators.

We are interested in your views on state or federal barriers to practice in the US and your experiences operating in the US and dealing with regulations. Contact Charlotte Ford, International Policy Adviser: charlotte.ford@lawsociety.org.uk.