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UK-US trade discussions on legal services

28 November 2018

The Law Society represented the solicitor profession at recent discussions with the US Trade Representative and the UK's Department for International Trade in Washington DC.

The UK and the USA both operate relatively open legal markets and there is a high level of trade in legal services between the countries. Despite this a number of restrictions remain in the US market including:

  • 17 states do not have rules permitting foreign legal consultant (FLC) status meaning non-US lawyers are not able to practise either home law, the US state law or international law
  • Only 11 states have rules explicitly permitting temporary FLC status, also known as 'fly in-fly out (FIFO)' services.
  • 17 states do not allow graduates of non-US law schools to take their bar exam.
  • 19 states which do allow graduates of non-US law schools to take their bar exam, may require the candidate to undertake additional formal legal education at a US law school, such as a postgraduate law degree (LL.M).

The situation is further complicated by the fact that legal services is a state-level competence and thus the US federal government cannot negotiate on their behalf. As a result, it is unlikely that there will be a formal legal services component to any potential future UK-USA FTA - though an addendum to, or an MOU accompanying, the FTA may be possible.

We are pleased that both the UK and US governments are keen to use the momentum of FTA discussions as a catalyst to help make progress and the Law Society and American Bar Association have agreed to take forward a structured dialogue on the remaining issues.

The Law Society has been involved in similar discussions in the US for many years and we remain mindful of the difficulties in securing further progress across the States. However, we are seeking views from our solicitors and member firms with an interest in the US market on which states such discussion should initially focus on and any issues.

To date, the Law Society's work in the US has focused on New York, DC and California with ad hoc engagement in Florida, Texas and Illinois. But we are keen to hear your views. Which states or territories do you think we should focus on? And which issues would you like us to prioritise - rules allowing Foreign Legal Consultants, FIFO, direct access to the bar exam or any others?

To discuss these issues please get in touch with ben.stevenson@lawsociety.org.uk.