Ever Wondered about Working Overseas?

by Susan Waywood from FindLaw

Australian lawyers are inundated with advertisements for overseas positions in places such as London, Hong Kong, New York and Dubai. The volume of postings raises questions related to inter-jurisdictional practice and how it is that Australian lawyers are able to practice law in a foreign jurisdiction.

Judging by the number of postings, English law firms appear eager to recruit talented Australian lawyers. Given licensing requirements for legal practitioners, how is it that Australian lawyers are able to practice law in England? Is it only Australian or perhaps Commonwealth lawyers who are being recruited by these English firms? Are these same opportunities available in other Commonwealth countries such as Canada?

England (and particularly London) is a cosmopolitan legal environment. The Law Society of England and Wales estimates that there are lawyers from over 50 countries practicing some type of law in the country, including English law, European law, international law, and the law of their jurisdiction of origin.

This cosmopolitan blend appears to be the direct result of the fact that in England and Wales, anyone at all may provide legal advice or most legal services. This includes foreign-qualified lawyers (provided, of course, that immigration requirements for the necessary work visas are met).

There are a few restrictions on what type of legal advice or services may be provided by individuals who are not qualified as a barrister or solicitor in England and Wales. For instance, there are restrictions regarding the conduct of litigation, the drafting of court documents, rights of audience, property transfers, and succession, as well as the provision of financial advice, immigration advice or immigration services.

Only barristers or solicitors certified in England and Wales may use those titles and it is an offence for an unqualified person to take or use any name, title or description to imply they are qualified to act as a solicitor. Foreign lawyers from jurisdictions such as Australia must use titles such as "Australian lawyer", "Australian solicitor" or "solicitor, New South Wales".

Despite these limitations, there are many ways in which foreign lawyers can practice law in England and Wales without re-qualifying as an English solicitor or barrister. Foreign lawyers may work as a sole practitioner or may work as a partner, assistant or consultant to a firm of foreign lawyers. They may also practice in partnership with English solicitors (provided that the foreign lawyer is appropriately registered by the Law Society as a registered foreign or European lawyer). Foreign lawyers may also be employed by English solicitors or by a company as an in-house lawyer. Opportunities abound.

Of course foreign lawyers may also re-qualify as a solicitor or barrister in England and Wales. Foreign lawyers seeking re-qualification must satisfy the Law Society that they have gained two years of qualifying common law experience within the past five years. Applicants from Australia would ordinarily be required to complete the Qualified Lawyers Transfer Test. This conversion test may coves four subject areas, including property, litigation, professional conduct and accounts, and principles of common law. The Law Society of England and Wales determines which subject areas must be completed by each candidate. Candidates must also be of good character.

The extensive recruitment of Australian lawyers for positions in England is closely linked to the ease with which foreign lawyers may practice law in England and Wales. In other Commonwealth countries, such as Canada, the situation is very different. For instance, there are few, if any, postings seeking to recruit Australian lawyers to positions in Canada.

In Canada, like Australia, is a federal state. The ability to practice law is regulated at the provincial rather than the national level. Requirements differ between provinces. Nine of the ten provinces are common law jurisdictions, while the Province of Quebec is a civil law jurisdiction.

Canadian common law jurisdictions generally require foreign lawyers wishing to practice the law of their home jurisdiction to apply for a permit.

The process becomes much more onerous for foreign lawyers wishing to practice Canadian law. Foreign lawyers wishing to re-qualify must apply to the National Committee on Accreditation for an evaluation of their legal credentials. The purpose of this evaluation is to ensure that applicants have an understanding and knowledge of Canadian law equivalent to that of a graduate of a Canadian LL.B. program. The NCA may require foreign lawyers to:

  • pass examinations in specified areas of Canadian law; or
  • complete courses at a Canadian law school (including, in some circumstances, completion of a Canadian LL.B. program.

    Once an applicant has satisfied these requirements, a Certificate of Qualification is issued. Foreign lawyers must then determine the province in which they wish to practice law and then meet additional requirements established by that province. Provinces may require an applicant to be a permanent resident of Canada prior to accepting them as am Articling Student-at-Law.

    Everyone wishing to be admitted to a provincial law society must apply for and be accepted as an Articling Student-at-Law. The articling experience involves:

  • completion of that Law Society’s practical legal training program (in some provinces these courses are offered in a 10-week block while in others they are offered on a part-time basis, often extending over six months); and
  • work experience for a specified period of time (generally ranging from nine to twelve months).

    Provincial law societies may offer foreign lawyers who have significant experience some reduction in their articling term and may provide partial exemptions from the practical legal training program. The reality, however, is that the Canadian requirements are so onerous that it is impractical and unappealing for foreign lawyers to seek temporary or short-term opportunities in Canada.

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