Minnesota needs more foreign-trained lawyers

The business case for making it easier to license attorneys trained outside the U.S. in Minnesota

By Inti Martínez-Alemán

Imagine deciding to resettle in a foreign country and having to quit your job as an attorney in Minnesota. You got a great job offer in England. Or your spouse is relocated to Brazil. Or you want to return to your home country of Japan. You want to continue being a lawyer and practicing law, but it’s a new country with new laws and new licensing requirements. What do you do?

Good news! These jurisdictions—like most jurisdictions around the world—will allow Minnesota lawyers to get credit for their U.S. Juris Doctor degree before allowing the applicant to get admitted to the practice of law in that jurisdiction. Many jurisdictions also establish additional requirements like a bar exam, an apprenticeship, a few courses in that jurisdiction’s domestic law, a specific immigration status, and the like. 

Now imagine that your new home has no viable path for you to become a lawyer there. Your education and experience working in Minnesota have little to no value. There are some restrictive nations out there, but they are few and far between. 

What if I told you that progressive Minnesota is a restrictive jurisdiction for foreign-trained lawyers? It’s true: Foreign-trained lawyers like myself were required to go to law school all over again. Our legal education, training, and experience abroad are worth very little according to the current Minnesota bar admission rules. Per ABA rules, you get no more than one year of credit from your foreign legal education.

Other states are friendlier to foreign-trained lawyers. In fact, over a dozen states will allow a foreign-trained lawyer to sit for the bar exam after completing a 1-year LL.M. (Master of Laws) degree from an ABA-accredited law school. Sadly, Minnesota has resisted joining the ranks of these more modern states.

There is a strong business case for Minnesota’s adoption of more welcoming admission rules, while still protecting the public and honoring our profession. It is in the interest of our great state to change its bar admission rules.

There are four sectors of our legal profession that would greatly benefit by changing the rules: (1) multinational corporations; (2) law firms with an international presence; (3) law schools; and (4) underrepresented immigrant communities. Let me tackle each of these.

Multinational corporations

At the 2019 MSBA Corporate Counsel Institute, I had the honor to share about this topic. A show of hands revealed that an overwhelming majority of corporate counsel deal with foreign jurisdictions on a regular basis. In the last five years, Minnesota has boasted of being home to 17-21 Fortune 500 companies—a figure that does not include private equity companies with comparable revenues! I don’t need to go to great lengths to explain our state’s privileged position. 

All these companies have an international presence. They deal with foreign jurisdictions regularly. It comes as no surprise, then, that a Minnesota multinational corporation would benefit tremendously from having legal counsel licensed to practice both in a targeted foreign jurisdiction and in Minnesota. 

Multinational corporations retain local counsel when they explore expanding or developing contacts in an international market. For instance, wouldn’t it be easier for 3M’s general counsel to call up a Minnesota-licensed attorney from Brazil, than to go through the hurdles of talking to a Brazilian attorney who may or may not understand U.S. law? You bet!

Certainly, many Minnesota multinational corporations already retain law firms abroad that employ attorneys familiar with U.S. law, many of whom have LL.M. degrees. But wouldn’t it be better if an increasing number of these attorneys were also licensed in Minnesota? You bet!

Navigating the differences between U.S. common law and foreign civil law is hard enough. Having a foreign-trained lawyer complete an LL.M. degree and then sit for the Minnesota bar exam would make work much easier for multinational corporations.

Law firms with international presence

In line with national trends, Minnesota is seeing more mega-law firms establish a presence here. Competition is cutthroat. Longstanding Minnesota law firms like Briggs and Morgan and Gray Plant Mooty have merged with even larger national or regional firms. One measure that would help local Minnesota law firms with an international presence reach the cutting edge in competitiveness is hiring more foreign-trained lawyers. 

Imagine Dorsey & Whitney or Fredrikson & Byron employing a cadre of foreign-trained lawyers licensed in Minnesota. Such an arsenal of talent would place these BigLaw firms in the vanguard of innovation for multijurisdictional and international practice. If an international client needs help in a foreign jurisdiction, these firms wouldn’t need to scramble to find local counsel in that jurisdiction with the hopes that they’re also versed in US law. These firms would simply tap into their own foreign-trained lawyers and get the ball rolling. 

Frankly, this is true not only for BigLaw. It also applies to solo and small law firms. I have witnessed it myself in my own solo practice. A European corporation retained me for a matter involving Minnesota law. They decided to hire me because, among other things, I speak their language, I understand how civil law in their jurisdiction works, and I am licensed in Minnesota. Had I only offered them the first two without a law license in Minnesota, they would have hired a competitor—obviously. 

I know of boutique law firms that routinely serve international clients. In this competitive market, they would stand out and remain competitive if they hired foreign-trained lawyers licensed in Minnesota.

Law schools

Law school admissions staff have a hard time explaining to prospective international students that they can come to Minnesota for an LL.M. but remain unable to sit for the bar exam. That’s a tough sell. 

Nevertheless, the law schools at University of St. Thomas and the University of Minnesota have very robust LL.M. programs (my alma mater, Mitchell Hamline, is MIA). It is impressive how UST and the U of M are able to attract so many talented foreign-trained lawyers from all over the world to come to frigid Minnesota to complete a Master of Laws in one year. When they are done, these colleagues move back to their home country without the opportunity to sit for the bar exam in Minnesota even if they want to. What do they do instead? They study and sit for the bar exam in another U.S. jurisdiction—New York is a popular choice.

 Allowing foreign-trained lawyers to sit for the Minnesota bar exam after completing an LL.M. from an ABA-accredited school would make Minnesota law schools even more attractive and competitive among international students. 

Underrepresented immigrant communities

Think back to the most complicated case you ever handled. Now imagine that same case with an extra layer of linguistic and cultural differences between you and the client or the other parties. 

Any case can grow more difficult when the lawyer is not on the same page with their client. Language and cultural differences are two big obstacles. One of the best ways to address the need for legal representation in immigrant communities is by allowing foreign-trained lawyers licensed in Minnesota to serve these communities.

The unauthorized practice of law (UPL) is rampant in Minnesota immigrant communities. Tax preparers, real estate agents, insurance agents, and the like are all giving legal advice, providing legal assistance, drafting legal documents, and completing legal forms without a law license. (UPL is a crime under Minn. Stat. §481.02.)

It feels like every week I meet with a client who has been “helped” by one of these people. On a recent case, my Spanish-speaking client believed he was signing a loan and security agreement over his home, when in reality he was signing a quit claim deed written in English. Big difference. The client had to spend thousands of dollars to undo this mess in court, all of it caused by someone who offered to help him and appeared to know what he was doing.

The Minnesota Attorney General and local law enforcement are not doing anything about UPL. The MSBA and local bars are mum. Meanwhile, immigrants are blindly entrusting their homes, businesses, cars, and other assets to unlicensed individuals. 

What does this have to do with foreign-trained lawyers? Well, many of those tax preparers, real estate agents, insurance agents, and the like who are engaged in UPL are foreign-trained lawyers. In our exchanges, nearly every single one of them tells me they would like to be a lawyer in Minnesota. What prevents them? Cost is one factor, for sure. The other is time. Doing law school all over again is not feasible.

Going back to my first illustration, imagine having to do law school all over again just because the bar admission rules haven’t caught up with the times. Nonsense. There should be a viable path. If many other states have created one without reported regrets, why can’t Minnesota? 

Let’s rein in these unlicensed individuals and take them out of the shadows. They should be regulated like the rest of us. If this doesn’t happen, they will continue to engage in UPL with no end in sight, further imperiling the rule of law. 

Signs of hope

The Board of Law Examiners has been receptive on this issue. They are considering taking steps in the right direction. However, we faced two initial reactions that left us awestruck: (1) this topic is too complex; and (2) how are we going to pay for it with our limited resources? 

To the first point, we responded by stating that the first thing they tell us in law school is that lawyers are problem solvers. That’s it. Full stop. Let’s figure this out. Regarding the second, our proposal is not that different from conventional JD admissions. You hire staff with the application fees you collect. And if you want to charge a premium to LL.M. applicants, so be it.

Once we got through these hurdles, two others came up: (1) why would Minnesota make it easier for others to sit for the bar? And (2) what are other jurisdictions (foreign or domestic) doing about foreign-trained lawyers? We addressed these two issues in a report you can see here: http://j.mp/2DsJnaw

Conclusion

No matter how you look at it, Minnesota would benefit by allowing foreign-trained lawyers to sit for the bar exam after completing an LL.M. program from an ABA-accredited law school. In turn, our law licenses would become more internationally recognized and validated because we would have more colleagues worldwide. We would join the ranks of more cosmopolitan jurisdictions like New York, California, or Texas. 

Minnesota deserves bar admission rules more in tune with the times. Otherwise, we’ll continue losing business to more welcoming states.