In our modern global economy, many Massachusetts companies are finding themselves with a need not only for legal advice concerning Massachusetts and U.S. law, but also for legal advice concerning international law and the local laws of foreign countries in which they do business. As a result, foreign legal consultants–foreign lawyers who advise Massachusetts companies and residents on foreign law–are increasingly in demand. In order to avoid running afoul of prohibitions against the unlicensed practice of law, foreign legal consultants must become licensed prior to providing any legal advice in Massachusetts. There are specific rules issued by the Massachusetts Supreme Judicial Court (“SJC”) governing the licensing of foreign legal consultants and the limits of their practice. Both foreign attorneys seeking to consult in Massachusetts, and Massachusetts companies seeking to retain foreign legal consultants, should become familiar with these and other applicable rules.
Before providing legal advice regarding foreign law to Massachusetts companies and residents, a consultant must apply for a license with the Clerk of the SJC. SJC Rule 3:05 governs the application process. To be eligible, the applicant must be a member of a recognized legal profession in his or her home jurisdiction, in good standing, for the past five years. The applicant must have “good moral character and general fitness,” and he or she must intend to maintain an office in Massachusetts for the purpose of practicing as a foreign legal consultant. With the application, the applicant must provide (i) a certificate of good standing from his or her home jurisdiction, (ii) a letter of recommendation, and (iii) three affidavits from “reputable” Massachusetts residents (at least one of whom must be a licensed Massachusetts attorney) testifying to “the applicant’s good moral character and fitness,” in addition to any other documentation that may be required on a case-by-case basis. Interestingly, in deciding an license application, the Board of Bar Examiners may consider whether the applicant’s home jurisdiction would allow a Massachusetts attorney to become a foreign legal consultant there.
Once licensed, foreign legal consultants are protected by the attorney-client and work-product privileges, may affiliate with Massachusetts law firm, and generally have many of the same rights and obligations as Massachusetts attorneys. However, even when licensed, foreign legal consultants are prohibited by Rule 3:05 from appearing in court, advising clients regarding Massachusetts or U.S. law, and drafting certain legal documents, such as wills and trusts.
In addition to SJC Rule 3:05, there are many other laws and rules governing the practice of foreign legal consultants and foreign lawyers. To ensure compliance with all local laws and regulations, the retention and licensing of foreign legal consultants should only be done in consultation with a Massachusetts attorney familiar with SJC Rule 3:05, international law, and other applicable rules and regulations.