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PHILLIP SYCAMORE:
I wonder if the national aptitude test is something you could benefit from, the test would
provide a basic structure that each state could then adapt to different needs.
DIANE YU:
We have a multi-state examination. The reality of what the interests are is revealed by
the fact that the states are allowed to set scores -- and dramatically different scores --
hardly justified from a consumer perspective. In Montana, they can be twenty points
dumber. Either the test measures something worthwhile, or you can only explain the
variations in patterns by looking at what the economic voices are within the state, and
what is the degree of concern about out-of-state lawyers. Try to figure out what would be
a sane structure without taking into account the obvious protectionistic impulses that are
driving it.
DEAN WALSH:
I wanted to ask Diane what these eleven hardy foreign legal consultants had to do to
qualify in California and what they're allowed to do and what they're not allowed to do.
DIANE YU:
Thank God I brought the brochure. Okay. Well, the basic provisions are the attorney must
be admitted in good standing in the country of licensing for at least four of the last six
years. He or she must provide a satisfactory proof of good moral character requisite to be
a member of the California Bar and must provide proof of security as required by the
Registered Foreign Legal Consultant Rules and Regulations. They agree to be bound by the
same Rules of Professional Conduct as the California lawyers are bound by. It's a lengthy
application, but our normal application is longer than this one. This takes some time. Not
a whole lot of people have applied. For instance, the countries represented so far are:
Armenia, Granada, Egypt, England and Wales, Germany, Greece, Japan, Lebanon, Malaysia,
Peoples Republic of China, The Republic of China and Singapore. They have annual updates
that they need to provide us that they are still in good standing and that they do
continue to have proof of security for malpractice or dishonest conduct. Those are the
requirements.
DEAN WALSH:
And what are they allowed to do in California?
DIANE YU:
Well, they are allowed to practice in a limited manner. They cannot appear in court. They
can give advice in California without being subject to the unauthorized practice of law
statutes, but they may not advise an American on California law.
NORMAN REDLICH [Dean
Emeritus of NYU Law School]: What Diane has been describing has
just been misunderstood. She's simply been describing the foreign legal consultant. And,
indeed, the American Bar Association has approved the Model Foreign Legal Consultant's
Rule, the same as it has approved Model Rules of Professional Conduct. They approved it a
couple of years ago. And New York has far more legal consultants, more than California.
I'm on a Committee that developed the foreign legal consultant rule for the Bar
Association of the City of New York. The New York rule served as the basis of the ABA
Model Foreign Legal Consultant Rule. But one should not confuse that with membership in
the Bar. It's very, very different. That's why you're seeing very limited numbers. The
question that troubles me, still, I hope, as an educator, is that we are very concerned in
this country about the quality of the bar and the thing we rely on more than anything else
is not the bar exam, not the licensing procedure, but on the quality of our law schools.
We rely on the accrediting process of the law schools. We say, okay, you graduated from an
ABA approved law school, you can sit for the Montana Bar. There are some states that don't
require ABA approval. Something like thirty-three or thirty-eight percent of non-ABA
approved law schools were in your state of California, which may account for why the
California people are so concerned about the competency of lawyers. But, we rely on
accreditation of the law school. If you start thinking globally, and you can get accused
of protectionism and all that, what device does one create? The licensing system is not
going to do it. It doesn't do it with regard to people who go to American law schools, so
it's not going to do it with regard to people who go to law schools in Spain, or Russia,
or anywhere else. What device are we going to use to satisfy the American public about the
quality of those people who are admitted to practice? How do we deal with the education
problem? Can I have the ABA go ahead and start inspecting law schools all over the world?
It is out of the question. If I lived in another country, I wouldn't put up with it. So
how does one maintain the quality of the Bar? It's not a licensing issue, not a bar exam
issue. How does one maintain the quality of lawyers? That is why it is a major concern. It
is what is driving what seems to be protectionism -- it's what's driving the concerns in
the United States.
DEAN KRAMER:
Phil, how do your directors feel?
PHILLIP SYCAMORE:
In terms of our American colleagues we are mystified that you seek to look behind the
qualifications of the solicitor to the academic stage at the university in an attempt to
discriminate between solicitors who actually all qualify at an equal level.
NORMAN REDLICH:
We do the same thing here. We do not accept the fact of a law degree. We precisely do look
behind the degree to the law school before most of our states would allow you to sit for
the Bar. I think to say that if you're qualified to practice law in a particular country,
therefore, you ought to be licensed, or sit for the bar in an American jurisdiction, we
have a long way to go before one does that. We reached a point in this country about a
hundred years ago, and certainly developed in the twentieth century, that we are not
satisfied with that. We want somebody to go to a school that will assure the consumer in
Idaho that the lawyer, who went to a law school on the East Coast, is a qualified person
to sit for the bar. That doesn't just mean what courses you took, it means the kind of
school, the level of scholarly research, the availability of skills training, a whole
range of things that are part of our accreditation standards. Now you can say that our
accreditation standards are ridiculous, that we ought not to have them, that anyone who
graduates from a law school in the United States ought to be able to practice law anywhere
in the United States -- that is a position and I don't agree with it. And I would say
we're a long way from adopting that position with regard to graduates of American law
schools, let alone graduates from countries where you don't have four years of
undergraduate, three years of graduate school and where on your own description one can go
directly from a non-law background into a kind of training and then apply as a solicitor,
we don't accept that.
DEAN KRAMER:
John Sexton?
DEAN JOHN SEXTON:
If you recall, on the issue of admission to practice, I tried to seize the ground here
earlier today that we never viewed in this country, I think, the bar exam or legal
education, or for that matter both of them together, as being sufficient to demonstrate
competency. We're doing something else. We require both, but we also maintain that's there
a continuum of education and competency that goes on after law school. If there is a
justification for the apparatus of the Section and accreditation and so forth, then that
justification has to be in a certain vision of what it means to be a lawyer. There's room
for us to reconfigure that. I don't think that the existing standards necessarily match
what we want. But when we move now to the global context the question is: Are we willing
to bring into that context this same vision of a lawyer? I would argue we should. If so,
what is the apparatus? The notions of equivalency become then, the heart of the matter.
Today we haven't touched upon what is and is not equivalency and how it works out. But we
should know where we are starting from, and it's not, I would submit, competency, but a
different and higher view of what it means to be a lawyer that's tied very much into the
Jeffersonian decision to move law schools into this process.
DEAN KRAMER:
As I said at the start of the conversation, it is ultimately a question of what we are
doing and why. This is the start of conversations, we're going to have to have many more.
We haven't gotten to the question of where GATT falls in all of this. Of course, the
European Community is governed by the Treaty of Rome -- Phillip can't give Norman's
answer, because there's governing law that controls him.
And of course, we haven't fully said what the
market is going to do through all of this, so there are witches out there that are gonna
get us. I would like to have many more conversations of this sort, while the world
crumbles around us. Thank you all for coming.
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