Hello Scribd (and Internet) Readers This is an unpublished law review piece I wrote

back in 2004-2005 as a law student. Its admittedly nave in a number of respects. Its
also not final as this is the latest version I could find (this was before the days of Dropbox
so I had to remember to email myself everything, which, sometimes, I did not do).
Thought it might be interesting as an artifact.
Ive left comments from my editor, as well as some of my own, inline.
Hope you find it interesting.
Thanks,
Dan
February 11, 2015
I. Introduction
At a large downtown law firm a partner is finishing up her day. She has just
completed a conference call with a client. Their discussion has raised an issue of first
impression for the attorney. As she prepares to walk out the door she drafts a quick email
to her associate, outlining the issue and requesting that the associate draft a memo
addressing the question. The email arrives in India just as the associate is beginning his
day. The associate will draft the memo by the end of his day, and return it to the partner,
just as she is coming into the office for the day.
Simultaneously, across town, a small solo practicioner is buried in a stack of
virtual paper. She recently began representing a family in a wrongful death suit against
their mothers former employer. Her requests for discovery and interrogatories have
yielded a significant volume of documents. As she prepares to catch her bus for the short
ride home, she uploads the documents to the secure server of an international legal
research firm. The firm will review the documents, organize them, and return them with
suggestions for further interrogatories and discovery requests in less than seventy two
hours.

These scenarios are exaggerated, but they are not unrealistic. While much of the
US legal community has yet to embrace the India legal outsoucing trend, the temporal
and economic efficiency of these services is making this type of opportunity harder and
harder for domestic legal service providers to ignore.1 Increasing global economic and
technological interconnectivity have made this type of corroboration cheaper and more
effective.
In concert with, or probably more accurately, as a result of, these increased
international connections, many US attorneys now have a much larger presence abroad
then they did two decades ago2. Whether they are doing so by default, in providing
counseling services to large corporations whose actions have significant global
consequences, or directly, by taking advantage of increasing reciprocity offered to US
legal professionals by the international jurisdictional bodies, these attorneys are making
their presence felt outside of both their state and national legal jurisdictions.3
In contrast, jurisdictions within the United States have been slow to provide
similar reciprocity to international legal professionals who wish to gain access to the
American legal market.4 The ABA, as well as local jurisdictional bodies, has assumed a
1

See generally Zachary J. Bossenbroek and Puneet Mohey, Should Your Legal Department Join the India
Outsourcing Craze?, 22 NO. 9 ASSN CORP. COUNS.46 (2004) (discussing general outsourcing trends and
successes among entities that have outsourced legal work).
2
See Jay L. Krystinik, The Complex Web of Conflicting Disciplinary Standards in International Litigation,
38 TEX. INTL L.J. 815, 815 (2003) (citing an increase in the export of US legal services from $97 million
to $1.453 billion between 1986 and 1993, reaching $1.9 billion in 1996).
3
Louis B. Sohn, American Bar Association Section of International Law and Practice Report to the House
of Delegates, 28 INTL LAW. 207, 212-13 (foreign lawyers emphasize the fact that American lawyers
enjoyed broad rights of practice in various foreign jurisdictions).
4
Id. It should be noted that this assertion, as well as the one before it, are drawn from a formal
recommendation of the American Bar Association International Law and Practice Section report to the
ABA house of delegates in 1994. This report was commissioned largely as a result of the seeming disparity
between reciprocity offered American lawyers by other countries and the lack of any formal practice status
offered foreign lawyers in the US. The section recommended that the ABA advocate for a widespread
adoption of The Model Rule for Foreign Legal Consultants. Id. This model rule has been more broadly
adopted; as of March 12, 2005, 23 of the 50 state jurisdictions have adopted some form of this rule. ABA
Center for Professional Responsibility, Commission on Mulitijurisdictional Practice, Chart with State
Foreign Legal Consultant Rules, (2005), available at http://www.abanet.org/cpr/mjp-home.html. However,

duty to ensure that those practicing law in a given jurisdiction meet certain minimum
standards of competence in order to practice law. However, these local bodies can no
longer afford to ignore the political reciprocal repercussions,5 as well as the
overwhelming economic efficiency,6 of outsourcing.
The Washington legislature should take action to clarify the status of these
international legal professionals. Conclusive action by the legislature to define the
scope of practice for these individuals will allow Washington entrepreuners to capitialize
on what is sure to be a profitable market in international legal outsourcing. Concerted
action by the legislature will encourage the development of this young industry in
Washington. It will also establish Washington as a key player in this emerging7 industry.
Part II of this Article will describe the international legal outsourcing trend, and its
development. Part III will focus on the unique situation of outsourced international legal
professional in light of current admission to practice and unauthorized practice of law
guidelines and cases and why those rules are inadequate to handle the influx of
outsourced international legal work. Part IV will outline the reasons that Washington
should take this specific step in order to facilitate the participation of international
outsourced legal professionals in the Washington legal market. And Part V will give a
brief outline of what a possible new set of legal guidelines might look like.
it is the position of this author, as discussed in detail below, that this rule does not extend sufficient practice
flexibility to foreign legal professionals to maximize the efficiency of this resource. See discussion supra
Parts III(A) and III(E).
5
Carol A. Needham, The Licensing of Foreign Legal Consultants in the United States, 21 FORDHAM INT'L
L.J. 1126, 1134 (1998); See, e.g., Howard Fischer, Supreme Court Considers Access for Foreign Lawyers,
ARIZ. BUS. GAZETTE, Mar. 31, 1994, at 15 (stating that Harriet Turney, chief Bar Counsel for Arizona had
stated that Arizona attorneys who had been denied the opportunity to practice law in Japan was a "driving
force" behind proposal to institute the foreign legal consultant rule in Arizona); See also Robert E. Lutz,
Ethics and International Practice: A Guide to the Professional Responsibilities of Practitioners, 16
FORDHAM INT'L L.J. 53, 77 (1992-93); William R. Slomanson, California Becomes Latest State to
Consider Foreign Legal Consultant, 80 AM. J. INT'L L. 197, 198 (1986).
6
See supra Section II(B)
7
See supra Section II

As an overarching theme of this article, the author would also like to spur debate
on the topic of international legal outsourcing. There has been surprisingly little academic
writing on this important and impending topic.8 Specifically, the topic was hotly debated
during the 2004 presidential race.9 While the issues of protectionism and free trade are
common among both other types of outsourcing and legal outsourcing, the barriers to the
outsourcing of legal work present important jurisdictional issues that are not found in
other industries.10It is the authors hope that this piece will inspire others to engage this
emerging phenomenon.
II. The Nature of the Current International Outsourcing Trend
A.

Predictions Indicate Continued Growth of Outsourcing

The international legal outsourcing industry is still very young11 but predictions

suggest that it will to continue to grow. It is anticipated that, in the years from 2001 to
2005, the amount invested nationally in business process outsourcing, including those
focused on legal services, will triple. Specifically, the worldwide legal outsourcing
12

Westlaw search on March 12, 2005 in law review database for "international legal outsourcing" produced
no documents; a search for: legal outsourcing and India, produced three documents, one of which is cited
in this work, another was a CLE dealing with the ethics of offshore outsourcing and the third was unrelated
to the present topic.
9
See, e.g. Commission on Presidential Debates, Debate Transcripts, 2004 Transcripts, available at
http://www.debates.org/pages/debtrans.html (last visited March 12, 2005); see also Yahoo News (Press
Release) Indian Legal Support Center Expands, available at http://www.openoutsource.com/resourcedated5583-Indian%20Legal%20Support%20Center%20Expands.phtml (June 16, 2004) (reporting that the
outsourcing of white collar jobs to India had become a hot topic in the presidential campaign and reporting
the response by an outsourcing professional to recent comments made by then presidential candidate
Senator John Kerry, defending the economic benefits of outsourcing).
10
For a discussion of restrictions on general outsourcing see Nick Steidel, Congress has Its Say on Sending
Jobs Offshore, ST. LEGISLATURES, May 2004, Vol. 30, Issue 5, 31 (reporting on federal legislation passed in
January 2004 prohibiting the federal government from outsourcing any federal job to a contractor that plans
to send the job overseas); Justin Marks, The Outcry Over Outsourcing, ST. LEGISLATURES, May 2004, Vol.
30-32, Issue 5 (reporting on legislation passed in some state legislatures that would prohibit state contracts
with contractors outsourcing jobs overseas); See supra Section III for a more detailed discussion of the
possible restrictions on legal outsourcing specifically in Washington State.
11
Email from Leon Steinberg, Chief-executive-officer, Intellevate, LLC, to author, (Jan. 28, 2005, 07:10
PST) (on file with author) (most major organizations involved in international legal outsourcing started up
in the last five years).
12
Earl Ainsworth, Huh? Legal Work Farmed Out To India, 12 N.J. LAW.: WKLY. NEWSPAPER 561, Mar. 31,
2003 at col.1. (stating that revenues from all such business process outsourcing operations, including those

industry is expected to grow to a $163 billion by 2006.13 A senior director at a major legal
consulting firm has stated that the outsourcing of legal work strikes me as the biggest
wave in the last five years in its ability to rework both sides--law firms and law
departments" of the legal services industry.14 By 2015, it is predicted that 489,000 U.S.
lawyer jobs, nearly 8% of the field, will shift abroad.15 Listed below are a few notable
characteristics of the industry that demonstrate the inevitably of this trend.
1) These International Legal Professionals are Lawyers
Many of these international legal professionals are lawyers.16 Most are Indian,
speak fluent English and were educated in Indias common-law legal system, a system
that is very similar to that of the United States.17 These attorneys undergo three to five
years of post-secondary studies in law.18 All levels of legal education in India are taught
in English, including the rigorous legal training and Socratic teaching style.19 Some of
these Indian attorneys were actually educated in US law schools.20 Other alternatives
include lawyers in law firms of predominantly English-speaking countries, like New
Zealand. These firms often have not only first-language capabilities in common, but also
frequently share strong commonalities in various legal disciplines.

21

2) These outsourced legal professionals are performing the work that US

attorneys have traditionally performed

focusing on legal services, will exceed $17.5 billion by 2005 compared with $5.5 billion in 2001).
13
Bossenbroek, infra note 1, at 49.
14
Id. at 49-50.
15
Jennifer Fried, Offshore Outsourcing Hits the Legal Marketplace, DEL. L. WKLY. 5, (Sept. 1, 2004) at 5.
16
William OShea, Caseload Grows for Advocates in Absentia, FIN. TIMES, Oct. 4, 2004, at 10.
17
Karl Schoenberger, Legal Work Heads Offshore, SEATTLE TIMES, Feb. 20, 2005 at G3.
18
Bossenbroek, infra note 1, at 52.
19
Id.
20
Ainsworth, infra note 12.
21
Fried, infra note 15.

Not only are these outsourced legal professionals are attorneys, but they are
performing the same work that US lawyers perform. Specifically, patent pre-filing search
and analysis work,22 patent application work,23 vendors contracts,24 consumer finance,25
confidentiality contracts and, somewhat ironically, outsourcing agreements;26 plans are
also being developed to move legal electronic databases abroad.27
Furthermore, while these international lawyers are not only doing the same work
as US lawyers, one individual close to the industry believes that the quality or technical
skill of international lawyers to perform these tasks may actually meet or exceed the skill
of US attorneys.28 Another individual involved with legal outsourcing has boasted that
these international attorneys could handle nearly any kind of legal work.29 The potential
of international legal professionals as attorneys is further demonstrated by the fact that
many corporations use these professionals instead of hiring a domestic temporary
attorney.30
Despite the confidence that some may have in these international legal
professionals, the actual ability of these international legal professionals to handle more
complex work is still largely untested.31 At this point, most of the work that these
outsourced professionals are handling is the fairly repetitive, elementary, work that does
not require significant expertise in a particular field.32
22

Helen Coster, Briefed in Bangalore, AMERICAN LAWYER, Nov. 2004, at 98.

Fried, infra note 15.
24
Fried, infra note 15; Ainsworth, infra note 12.
25
Ainsworth, infra note 12.
26
Fried, infra note 15.
27
Ainsworth, infra note 12.
28
Fried, infra note 15 (client of outsourced legal provider stated: We wouldnt be afraid to send anything
to [our outsourced counsel]; Bossenbroek, supra note 1, at 52.
29
Schoenberger, infra note 17 at G3.
30
Ainsworth, infra note 12.
31
See infra Part II(A)2 for a more detailed discussion of the work that is currently being handled by
outsourced legal professionals.
32
Id.
23

3) Lawyers Clients are Driving the International Legal Outsourcing Trend

Businesses, and not law firms, are driving the trend of international legal
outsourcing.33 Many corporations have already established R & D centers abroad, and as
a result, are comfortable dealing with the logistics of cross-border communications.34
This is especially true of technology companies, some of which have directly established
legal offices abroad. Specifically, in 2001, General Electric opened a legal office in
India.35 Other large corporations have also begun utilizing the services provided by
outsourcing organizations. Microsoft is rumored to have begun sending some of its patent
pre-filing work abroad,36 Cisco and Sun Microsystems are engaged in the process,37 and
Intel and Oracle have purportedly investigated the opportunities.38 A legal outsourcing
firm, engaged in the business of providing outsourcing solutions to corporate clients,
stated that its client base included seven Fortune 100 companies as well as 20 other
entities.39 In some situations, corporations are actually requesting that their outside legal
counsel utilize outsourced legal resources.40
B. The Benefits of Outsourcing

33

Telephone interview with Leon Steinberg, Chief-executive-officer, Intellevate, LLC (Nov. 22, 2004)
(stating that corporations tend to be less politically sensitive, at least compared to law firms; companies in
the technology field also seem to be particularly comfortable outsourcing legal work abroad; these facts
may be because these companies have, by nature, an international focus, and have already tested and
proven the competence of international professionals in other arenas).
34
Id.
35
Ainsworth, infra note 12.
36
Coster, infra note 22 at 98.
37
Bossenbroek, infra note 1, at 52.
38
Brenda Sandburg, India Inked, RECORDER (SAN FRANCISCO), January 14, 2005 at 1; Schoenberger, infra
note 17 at G3.
39
Telephone interview with Steinberg infra note 33.
40
Sandburg, infra note 38 (describing that the law firm of Carpenter and Kulas was approached by a Silicon
Valley client that requested that the firm utilize outsourced resources).

As far as benefits, international legal outsourcing is already showing signs that it

will be profitable for those involved in the process of outsourcing and cost effective for
those who utilize outsourcing services.
First, outsourcing is economically efficient.41 The disparity between the cost of
legal services performed by an American legal professional and those performed by an
Indian legal professional is significant; the cost of a patent search done domestically is
nearly 60% higher than one done in India.42 By utilizing this opportunity, organizations
save money on their legal fees. This influx of capital allows domestic companies to be
more competitive.43 Depending upon whether the organization is a law firm or
corporation, these new funds can then be reinvested in more innovative or specialized
business practices that, in turn, will bring greater profits and more jobs.
Outsourcing also allows attorneys to work, effectively, around the clock.44 The
time difference of roughly one-half of a day between India and the United States makes
for a very efficient legal practice. When attorneys finish up here in the States, they can
send requests for continued efforts to India, where the day is just beginning. When the US
attorney returns to the office, they are greeted with an email or electronic document
containing the answers to any outstanding legal questions.45 The turnaround time
involved in completing a project can be much quicker.46
In addition to time and capital efficiency, outsourcing will provide clients better
access to legal professionals with transnational experience. The global nature of the
41

Fried, infra note 15 (in two years of operating its India facilities, GE has saved more than $2 million in
legal fees); Bossenbroek, infra note 1, at 51 (Sun Microsystems and Cisco also boast that outsourcing has
saved them millions in legal fees).
42
OShea infra note 14 at 10.
43
Schoenberger, infra note 17 at G3.
44
Coster, infra note 22 at 98.
45
Id.
46
Bossenbroek, infra note 1, at 52; Ainsworth, infra note 12.

present economy is creating a demand for attorneys who can understand the complexity
and nuance of cross-border legal issues.47 Increasingly, those attorneys who have legal
experience in both the US and other countries are in great demand.48 Allowing
international legal professionals to participate more fully in the US legal system will
create a population that has those characteristics.
Providing international legal professionals increased access to the US legal
market will, in turn, encourage foreign legal jurisdictions to open their markets to US
attorneys. Reciprocity has been a driving factor in the development of regulations
governing access to cross-border legal markets.49 In certain foreign jurisdictions,
members of a specific State bar have been denied entry into a legal market because the
lawyers home jurisdiction did not provide access to the attorneys from the foreign
jurisdiction. It may also encourage the legal systems of other countries to offer greater
50

reciprocity to US lawyers seeking to assist clients in foreign countries.

If allowed to truly permeate all levels of the legal profession in this country, the
outsourcing trend could also provide legal services at a cost so low as to make legal
services available to those who do not have access to them today.51 Studies have shown
that roughly half of those below the poverty line go without legal services because they
are too expensive.52 International legal professionals can provide many of these same
47

Needham infra note 5 at 1128; see also John A. Barrett, Jr., International Legal Education in U.S. Law
Schools: Plenty of Offerings, But Too Few Students, 31 INT'L LAW. 845 (1997); Mary C. Daly, The
Cultural, Ethical and Legal Challenges in Lawyering for a Global Organization: The Role of the General
Counsel, 46 EMORY L.J. 1057 (1997), Andrew Pardieck, Foreign Legal Consultants: The Changing Role of
the Lawyer in a Global Economy, 3 J. GLOBAL LEGAL STUD. 457 (1996); Richard L. Abel, Transnational
Law Practice, 44 CASE W. RES. L. REV. 737 (1994).
48
Id.
49
Id. at 1134.
50
See infra note 6
51
Kathleen Eleanor Justice,There Goes the Monopoly: The California Proposal To Allow Nonlawyers to
Practice Law, 44 VAND. L. REV. 179, 180 ( 1991).
52
Id. at footnote 6.

legal services that domestic providers do, for roughly half the cost.53 Integral to this idea
is the role of telecommunications technology. While it is difficult at this point to
anticipate how, exactly, an outsourced attorney will aid an indigent individual, it is not
impossible to describe a few likely scenarios. An outsourced lawyer represents a tenant
against a landlord seeking to evict. The outsourced lawyer first meets with the client, via
telephone or video teleconference. The attorney then prepares a motion or brief that the
he either submits online to a judge, or argues, via teleconference or video teleconference,
at the hearing. Similarly, a couple seeking divorce could meet with a trained legal expert
via teleconference. While both partners will eventually require individual representation,
the initial visit can serve to help the couple begin the process and understand what
avenues to follow up on.
III.

The Current State of International Legal Professionals

Arguably there are, already, sufficient measures in place to provide for the

appropriate and economically beneficial use of the international legal outsourcing

industry in this state. There are a number of avenues available to international attorneys
generally, to participate in Washingtons legal market.54 The following discussion will
outline these methods and explain why they are insufficient to meet the needs of the
international outsourcing trend.

53

See supra Part II(A)(2), while specific cost data is not available for matters in which international
attorneys might represent indigent individuals, it can be assumed that if patent searching, a more
specialized type of work, is 60% cheaper, representation in various civil matters would be less expensive by
a considerable margin.
54
See supra Part III.

First is should be stated that a search by the author has revealed are no current
court rules or legislation, in Washington or any other jurisdiction, specifically governing
the outsourcing of legal work to international legal professionals.55
The Washington State Rules of Professional Conduct (WRPC), Admission to
Practice Rules (APR), and General Rules (GR),56 define the scope of the practice of
law, who may practice law and how that practice is to be conducted.57 The general policy
behind the Admission to Practice Rules is to keep non-lawyers from engaging in the
practice of law. While attorneys that violate the Rules of Professional Conduct are subject
to sanctions from the bar, the public has no recourse for poor, illegal, or negligent
performance of these functions by a nonlawyer.58 By limiting access to the lawyering
profession, the Admission to Practice Rules, and their effective enforcement, establish a
minimum standard of both ethics and performance that all legal practitioners in this state
must uphold.
Regarding the practice of law itself, even drafters of GR 24, which defines the
practice of law in Washington State, were hesitant to place any clear boundaries on
what is and what is not the practice of law. However, GR 24 does establish a few specific
actions or behaviors as the practice of law:
(1) Giving advice or counsel to others as to their legal rights or the legal rights
or responsibilities of others for fees or other consideration.
(2) Selection, drafting, or completion of legal documents or agreements which
affect the legal rights of an entity or person(s).
(3) Representation of another entity or person(s) in a court, or in a formal
administrative adjudicative proceeding or other formal dispute resolution process
55

A number of searches for legislation or rules governing outsourcing came up fruitless; however, the
references discussed in supra note 10 regarding possible bans on state contracts going to companies
involved in outsourcing may eventually have an influence on legal outsourcing; See HB 1724 , 59th Reg.
2005 Sess., (Wa.) for a copy of a current house bill in Washington state that would serve a similar purpose.
56
See WASH. REV. CODE SECTION 2.48.170-80; WASH. CT. A.P.R.; WASH. CT. G.R.; WASH. CT. R.P.C.
57
See id.
58
See Authors Comments, KARL B. TEGLAND, 2 WASH. PRAC., RULES PRACTICE GR 24 (6th ed).

or in an administrative adjudicative proceeding in which legal pleadings are filed

or a record is established as the basis for judicial review.
(4) Negotiation of legal rights or responsibilities on behalf of another entity or
person(s).59
The present analysis will not delve much further into this topic. However, there is a body
of case law and other scholarly works on the topic to which the reader may turn for
further elucidation.60
Given this definition, Admission to Practice Rule 1 establishes that Except as
may be otherwise provided in these rules, a person shall not . . . practice law in this state,
unless that person has passed the Washington State bar examination . . . 61 Outside of this
fairly conclusory rule, there are a few narrow exceptions, discussed below, that allow
non-lawyers, or other legal professionals, to participate in the practice of law in
Washington.62
Attorneys from other US jurisdictions may swear in under Washingtons
reciprocity rule: APR 18.63 This rule provides for reciprocity between Washington and
other US jurisdictions provided that a few other specific requirements are met. These
applicants need not take and pass the Washington State Bar Exam.64 Therefore, an
59

Id.
See Johnstone, Quintin, Unauthorized Practice of Law and the Power of State Courts: Difficult Problems
and Their Resolution, 39 WILLAMETTE L. REV. 795-850 (2003). In addition to this article there is extensive
case law on this topic as well, see State v. Hunt, 75 Wash..App. 795, 880 P.2d 96 (1994) and accompanying
jurisprudence.
61
WASH. CT RULE A.P.R. 1; Washington Admission to Practice Rule 3 also specifies that foreign attorneys
educated outside the US are not excluded from practicing law in Washington, if that attorney takes the Bar
Exam. An attorney from any jurisdiction where the common law of England is the basis of its
jurisprudence who has active legal experience for at least 3 of the 5 years immediately preceding the
filing of an application for admission may sit for the Washington State Bar Exam. A 1990 amendment to
the rule expanded the list of potential admittees to those who are not residents of Washington or citizens of
the United States. The applicant must then pass the Washington state bar exam. The domestic applicant
must pay $735 to take the bar exam. As of January 1, 2005, the foreign applicant must pay $985. WASH. CT
RULE A.P.R. 3 (2005).
62
See discussion of foreign legal consultant supra Part III(B) and Washington Court Admission to Practice
Rules 12 and 18. WASH. CT RULE A.P.R. 12,18.
63
WASH. CT RULE A.P.R. 18
64
Id.
60

international attorney who has gained admission to one states bar may find it easier to
swear in as an attorney in Washington under this rule than to seek admission to through
APR 1.65
APR 14 provides further opportunities for an international legal professional to
gain access to this jurisdictions legal industry. The applicant must meet a number of
administrative requirements and pay an annual fee.66 This rule permits the foreign law
consultant to engage in the practice of limited practice of law provided that the applicant
not 1) appear in person in court for any person other than himself or herself; 2) prepare
any document relating to the transfer of real estate located in the US; 3) prepare any will
or trust instrument effecting the disposition on death of any property located in the US or
any instrument relating to the estate of a deceased person in the US; 4) prepare any
instrument effecting marital or parental rights, custody of children or rights and duties of
a resident in the United States; 5) render any professional advice on the law of this state
or of the US, except on the basis of advice from a person duly qualified and entitled

65

See discussion of APR 1 infra; the few qualifications required by APR 18 are hardly as strenuous as
taking the bar exam and meeting the other requirements of APR1.
66
(i) Present satisfactory proof of both admission to the practice of law, together with current good
standing, in a foreign jurisdiction, and active legal experience as a lawyer or counselor at law or the
equivalent in a foreign jurisdiction for at least 5 of the 7 years immediately preceding the application; and
(ii) Possess the good moral character and fitness requisite for a member of the Bar of the State of
Washington; and (iii) Execute under oath and file with the Bar Association two copies of an application in
such form as may be required by the Board of Governors; and (iv) File with the application a certificate
from the authority in such foreign country having final jurisdiction over professional discipline, certifying
as to the applicants admission to practice, and the date thereof, and as to the good standing of such lawyer
or counselor at law or the equivalent, together with a duly authenticated English translation of such
certificate, if it is not in English; and (v) File with the application a letter of recommendation from one of
the members of the executive body of such authority or from one of the judges of the highest law court or
courts of original jurisdiction of such foreign country, together with a duly authenticated English translation
of such letter, if it is not in English; and(vi) Provide with the application such other evidence of the
applicants educational and professional qualifications, good moral character and fitness and compliance
with the requirements of this rule as the Board of Governors may require; and (vii) Pay upon the filing of
the application a fee equal to that required pursuant to rule 3(d)(2) to be paid by an attorney applicant to
take the bar examination. WASH. CT RULE A.P.R. 14.

(otherwise then by virtue of having been licensed under this rule) to render professional
legal advice in this state; In addition, those who qualify as legal consultants under this
rule must also subject themselves to the professional disciplinary rules of this state.67
Currently under review in Washington State, as of January 31, 2005, is the Model
Rule for Temporary Practice by foreign lawyers.68 This rule is designed to facilitate the
practice of law by foreign lawyers who are seeking to perform temporary services in the
United States.69 This rule would simplify the admissions procedure for those foreign legal
professionals who come to the United States only briefly in order to negotiate a
transaction on behalf of a client in the lawyers own country.70 The rule provides five
limited circumstances in which this foreign legal professional may participate in the legal
process in the US. Such a lawyer does not engage in the unauthorized practice of law in
71

this jurisdiction when on a temporary basis the lawyer performs services in this
jurisdiction that:
(1) are undertaken in association with a lawyer who is admitted to practice
in this jurisdiction and who actively participates in the matter;
(2) are in or reasonably related to a pending or potential proceeding before
a tribunal held or to be held in a jurisdiction outside the United States if
the lawyer, or a person the lawyer is assisting, is authorized by law or by
order of the tribunal to appear in such proceeding or reasonably expects to
be so authorized;
(3) are in or reasonably related to a pending or potential arbitration,
mediation or other alternative dispute resolution proceeding held or to be
held in this or another jurisdiction, if the services arise out of or are
reasonably related to the lawyers practice in a jurisdiction in which the
lawyer is admitted to practice;
67

Id.
While the WSBA website does not indicate that this rule is currently under review, the ABA website, as
of March 3, 2005 states that this rule is under review in Washington. AMERICAN BAR ASSOCIATION,
CENTER FOR PROFESSIONAL RESPONSIBILITY, COMMISSION ON MULTIJURISDICTIONAL PRACTICE,
Comparison of Foreign Legal Consultant Rules available at (last visited Mar. 4, 2005) [hereinafter ABA
MJP Report]
69
Wayne J. Positan, Report of the Commission on Multijurisdictional Practice, 2002 available at http://
www.abanet.org/cpr/mjp/intro-over.doc.
70
Id.
71
Id.
68

(4) are not within paragraphs (2) or (3) and

(i) are performed for a client who resides or has an office in a
jurisdiction in which the lawyer is authorized to practice to the
extent of that authorization; or
(ii) arise out of or are reasonably related to a matter that has a
substantial connection to a jurisdiction in which the lawyer is
authorized to practice to the extent of that authorization; or
(5) are governed primarily by international law or the law of a non-United
States jurisdiction.
However, Washington has not yet adopted this rule.
Simultaneously, Washington Rule of Professional Conduct 5.5 limits the means by
which a licensed attorney may assist a non-lawyer in any action that might constitute the
practice of law. Specifically, a lawyer shall not b) assist a person who is not a member of
the bar in the performance of an activity that constitutes the unauthorized practice of law;
or c) permit his or her name to be used as a lawyer by another person who is not a lawyer
authorized to practice law in the state of Washington.72 Case law has clarified the
meaning of this rule; specifically the Washington State Supreme Court has also held that
an attorneys rubber stamping of instruments prepared by a collection agent, in essence,
had enabled the agent to practice law, and was held an infraction of the rule.

73

Finally, on a more general note, Washington allows closing officers to perform

specific preparation of closing documents related to loans and transfers of property.74 APR
12 authorizes lay persons who have specified qualifications to prepare legal documents
related to real estate closings and personal property transactions.75 This rule limits
72

WASH. CT RULE R.P.C. 5.5

Yount v. Zarbell, 17 Wash.2d 278, 135 P.2d 309 (1943).
74
WASH. CT RULE A.P.R. 12; Written in response to public pressure after the Washington state Supreme
Court held that a law, authorizing closing officers to perform these types of tasks, was unconstitutional, see
KARL B. TEGLAND, 2 WASH. PRAC., ADMISSION TO PRACTICE RULE 12 (6th ed); see also Bennion v.
Kassler Escrow, Inc. 96 Wash.2d 443 (1981) (RCWA 19.62 held unconstitutional as violating the separation
of powers).
75
Specifically, a person certified as a closing officer under this rule may select, prepare and complete
documents in a form previously approved by the Board for use in closing a loan, extension of credit, sale or
other transfer of real or personal property. Such documents shall be limited to deeds, promissory notes,
73

transaction costs because an attorney is not required to complete routine legal

documents.76
The current admission to practice policies are insufficient to handle the both the
tremendous influx of demand for and significant economic benefits that the international
legal outsourcing industry will bring.
First, the barriers created for an international legal professional under APR 1 are
far too large. It is true that International attorneys that wish to practice law in Washington
State, need not, necessarily, attend law school in the US, or even be a US citizen or
Washington resident.77 However, the individual must take and pass the Washington State
bar exam.78 At first glance, this is a seemingly reasonable requirement; all domestic
individuals who desire to provide legal services as described under GR 24 must also pass
the bar exam.79
For an outsourced international legal professional, the bar exam requirement
presents serious logistical problems. First of all, the bar exam is offered only twice per
year, in Bellevue, Washington.80 For many international legal professionals wishing to
practice in from an outsourced location, the trip to Washington alone would present a
formidable financial obstacle. Further, if the applicant were actually to make it to
Washington, he or she would then have to pay $985 for the bar exam fee, $250 more than

guaranties, deeds of trust, reconveyances, mortgages, satisfactions, security agreements, releases, Uniform
Commercial Code documents, assignments, contracts, real estate excise tax affidavits, and bills of sale.
Id.; see also Robert C. Farrell, Limited Practice Officers and Admission to Practice Rule 12: Taking of
Not?, 23 SEATTLE U. L. REV. 735 (2000).
76
Jay Carlson, Interest or Principles?: The Legal Challenge To IOLTA In Washington State, 74 WASH. L.
REV. 1119, 1124 (1999).
77
WASH. CT RULE A.P.R. 3.
78
Id.
79
Infra note 61
80
Washington State Bar Association, Bar Exam Information, available at
http://www.wsba.org/lawyers/licensing/barexam.htm#2 (last visited March 5, 2005).

the domestic applicant.81 This is an amount for which many US law students must take
out a loan.82 Given that fact, it is certainly not unreasonable to expect that an
international legal professional, most likely from India or another country in which
income is less than that of individuals in this country, would not have the resources
available to meet that requirement.83
This requirement seems a bit superfluous because many international legal
professionals have likely already passed a bar exam of some sort.84 The Washington State
Bar Association is willing to, in effect, recognize the legal education obtained by
international attorneys educated outside of the US in a common-law jurisdiction by
allowing them to sit for the bar exam.85 It seems a bit counterintuitive that WSBA be
unwilling to recognize, at least on some limited level, the bar exam taken in that same
jurisdiction.
Finally, debating this issue at this point is probably a bit premature. Realistically,
any progress initially made in clarifying the role of outsourced international legal
professionals, is very unlikely to be made in the form of full reciprocity, such as that
offered to members of other US bar associations offered under APR 18.86 More likely is
some form of limited reciprocity. Furthermore, such an expansion would likely lead to a
87

81

See infra note 61.

Bar loans are offered to most law students at most law schools; a search of bar exam loans on a search
engine reveals that most US law schools provide this type of financing to law students.
83
To provide a basis of comparison, average Per capita GDP in India is $2,900 versus $37,800 in the United
States, Central Intelligence Agency, World Fact Book, Rank Order GDP Per Capita, available at
http://www.odci.gov/cia/publications/factbook/rankorder/2004rank.html
84
A cursory search revealed that bar exam and bar admission varies in a number of European countries. See
generall Peter E. Nahmias, Two Lawyers for the Price of One,Transnational Licensing in the EU for U.S.
Practitioners, 21 NO. 6 ACCA DOCKET 102 (2003); India also requires that individuals pass a bar exam
before practicing law there, Adrienne Sanders, The Jet Set: Shantanu Supure Belongs to a Generation of
Lawyers at Home in the World, THE RECORDER, August 3, 2004 at 1.
85
See infra note 77.
86
See infra Part III(A).
87
See infra Part V.
82

reexamination of the administration of the Washington State bar exam in general, the
means of whose administration, in many ways, is already outdated.88 As a result, this
question, of whether the bar exam is too significant a barrier, may be resolved by some
other means.
APR 14 is also incapable of handling the emerging trend of international legal
professionals. First of all, evidence suggests that, for any number of reasons, the there are
very few international legal professionals that have gained admission as Foreign Legal
Consultants.89 Further, the scope of practice for these foreign legal consultants is very
limited.90 To briefly review, these individuals are restricted from preparing any deed,
mortgage, will, trust, instrument related to marital relations, or rendering legal advice on
the law of the state of Washington, or any other territory in the US or District of
Columbia.91 Whatever abilities these individuals might have had to contribute to the
Washington legal industry are severely, if not completely muted by this limited practice
scope. In order to make the best use of these international legal professionals, they must
be permitted to act in a less limited arena.
Similarly, the new Model Rule for Temporary Practice by foreign attorneys, if
adopted, will not provide sufficient outsourced international legal professionals practice
flexibility.92 These professionals would be permitted to practice in a very limited scope;
essentially only under the supervision of a licensed domestic attorney and only on issues
88

In light of other professional exams, most of which are offered in a much more accessible fashion, the bar
exam seems a relic of an exam when many professional and other types of admission exams are taken
electronically. Among others, CPA exams are frequently administered at testing centers in many locations.
See American Institute of Certified Public Accountants, CPA Exam Information, available at
http://www.cpa-exam.org/test/index.html (last visited Mar. 10, 2005).
89
Needham, infra, at 1139. In the neighboring state of Oregon, the reported number in 1997 was less than a
dozen; will pursue WA stats
90
See infra Part III(E)3
91
WASH. CT RULE A.P.R. 14
92
See infra Part III(E)4

related to a matter that is pending in the foreign attorneys home jurisdiction.93 Policy
reasoning that the ABA has provided regarding the basis for adopting this new rule only
reemphasizes the rules limited scope.94
Obviously, international legal professional could also be licensed as LPOs.95
While this is certainly a possibility, provided that the individual met the requirements laid
out by APR 12, the practice scope of LPOs is so limited, and the performance of their
duties so closely bound to their actually being present, it would seem ridiculous to pursue
such a course.
Protection of the public need not be sacrificed on the altar of economic efficiency
of monetary gain. Washington was one of the first states to adopt the rule permitting
practice by foreign legal consultants.96 Further, it is the only state that permits limited
practice by LPOs.97 These facts prove that the Washington legal system has proven its
ability to define and oversee limited practice statuses within the boundaries of the
practice of law.98 There is no reason that the Washington State Legislature cannot carve
out an arena in which outsourced legal professionals can not be safely utilized by legal
practitioners in this jurisdiction. Furthermore, just like the status of Foreign Legal
Consultants created in APR 14 or the Limited Practice Officers in APR 12, outsourced
international legal professionals can be held to the same ethical standards as this
jurisdictions attorneys.99
93

Id.
See ABA MJP Report supra note 68; in an attempt to demonstrate the reasons for adopting this rule the
commission provided the following example: if a German lawyer came to the United States to negotiate
on behalf of a client in Germany, the lawyer would be authorized to provide only those services that the
lawyer is authorized to provide for that client in Germany.
95
See infra part III(D)
96
Louis B. Sohn, American Bar Association Section of International Law and Practice Report to the House
of Delegates, 28 INT'L LAW. 207, 214 (1993).
97
Search has provided no other jurisdictions
98
See infra Parts III(B) and (D)
99
Id.
94

IV. International Legal Consultants in Washington State

The case for creating a unique status for international legal professionals in
Washington State is strong. The inevitable growth of the industry combined with
Washingtons tech-heavy economy almost guarantees expansion of the penetration of
international legal professionals into the Washington legal market.100 Establishing a
specific practice designation for these professionals will serve a number of purposes.
First, specific legislation will clarify how an attorney may or may not use this valuable
resource. Second, such a designation will place Washington state and the Washington
State bar in a better position to regulate the influx of this work that will inevitably come
to the state as a result of the economic technology infrastructure that has made its home
in this state.101 It is an opportunity for Washington to provide the legal infrastructure for
an industry that will, undoubtedly, grow, creating jobs and bringing revenues to
Washington State. Third, expanding reciprocity in Washington is an opportunity for the
legal community in this state to encourage foreign jurisdictions to provide greater
reciprocity to attorneys from this state who wish to expand their practice abroad. Finally,
it is a significant opportunity to expand the services that are available to Washingtons
indigent population.102
Failure to clarify the role of outsourced international legal professionals will
inevitably result in the unauthorized practice of law in this jurisdiction.103 Many of these
international legal professionals are well trained attorneys.104 The work product that these
legal professionals will produce is likely to be on par with that which US paralegals or
100

Coster, infra note 22 at 98

See infra Part II(B)
102
Any statistics available on the lack of access to justice among indigent persons in Washington?
103
See discussion infra Part III(E) unauth prac of law
104
See discussion infra Part II(A)1
101

junior associates might produce.105 Given these facts, the temptation will be strong for a
practicing attorney in this state, either intentionally or inadvertently, to submit an
outsourced legal professionals work as their own. While there are no specific rules
forbidding the use of these international legal professionals on an administrative level, an
attorneys rubber-stamping of work performed by a non-lawyer is considered the
unauthorized practice of law in Washington.106 The creation of a specific designation or
practice for these international legal professionals will alleviate this possible problem.
There are many who could argue that the offshoring trend mounts no different a
challenge to the traditional legal infrastructure than have the professions of other
domestic non-lawyer legal professionals in Washington, like paralegals, paralegal
assistants or even legal secretaries. While the scope of the practice of law has changed
over the years as a result of these challenges, the lawyers profession remains a viable
and recognizeable entity.107
There are a number of reasons that the emergence and availability of foreign legal
professionals presents an altogether different challenge than have those brought by other
legal professions. First, these international legal professionals have been trained as
jurists.108 Therefore, their thinking, reasoning, and writing skills are much more likely to
approximate those of US lawyers than those of other legal professionals. Further, having
seen their work product, US lawyers are likely to recognize the significant abilities of
these international legal professionals. Second, it is businesses, a major client of

105
106

107

See discussion infra Part II(A)2

See discussion infra Part III(E) unauth prac of law

You might cite to the number of graduations from WA law schools last year and the number of attorneys
who were licensed to practice in WA last year (as well as the number of new licensees).
108
See discussion infra Part II(A)1

attorneys, who are not only innovating the use of international legal professionals,109 but
also beginning to insist that their outside legal counsel do so as well.110 While much has
changed, and is changing, about the legal profession, lawyers still must be very sensitive
to the requests of their clients. Therefore, whether from within or without, law firms of
the more traditional form will be forced to deal with this emerging trend. Finally, many in
the industry already view these international legal professionals as additional contract
attorneys, not paralegals or legal assistants. Therefore, as these outsourced lawyers
111

prevalence increases, the natural transition will be into positions as lawyers and not as
any other type of legal professional.
Adopting an additional admission to practice rule that more clearly defines the
practice confines of these international legal professionals will not be a radical change,
because unique practice statuses for non-lawyers are not uncommon in Washington. As
mentioned above, Washington is the lone jurisdiction offering limited practice
capabilities to Limited Practice Officers under APR 12.112 Washington was also one of the
first jurisdictions to adopt the rule creating the position of Foreign Legal Consultant,
under APR 14.113
By providing greater reciprocity for international lawyers, Washington will
greatly increase the ability for its attorneys to gain access to foreign legal jurisdictions.114
Washington is home to an increasingly international population.115 It is also a home to
corporations and industries with an increasingly international scope.116 These businesses
109

See discussion infra Part II(A)3

Sandburg, supra note 38 at G3
111
Ainsworth, supra note 30; Fried, infra note 15.
112
Search by the author has yet to uncover any other jurisdiction with a rule similar to that of Washington
113
Sohn, infra note 94; Washington State adopted the rule in 1990, three years before the ABAs model rule
in 1993.
114
See infra Parts III(B) and (D)
115
Footnote needed.
116
Footnote needed.
110

and industries will benefit from greater access to foreign legal markets. As mentioned
above, lack of reciprocity is one of the greatest barriers for US attorneys seeking
admission to practice in a foreign jurisdiction.117 By extending greater practice breadth to
international attorneys in Washington, this state is guaranteeing itself and its attorneys
greater economic opportunity and practice flexibility in other jurisdictions.
Granted, not all jurisdictions will respond in kind to increased practice breadth
that Washington may provide international attorneys. Similarly, many attorneys from
many countries that would be eligible for access to this jurisdiction may not take
advantage of the opportunity, thereby making their home jurisdictions less likely to open
their doors to Washington attorneys. However, there is strong evidence that increased
reciprocity by one party leads, at the very least to dialogue about, if not the granting of
increased reciprocity by the other.118 Given Washingtons increasing international
position, greater international reciprocity for its legal professionals can only bring greater
benefit home to this state.
Finally, increased access for international legal professionals to this jurisdiction
will open the door to more affordable legal representation for Washingtons indigent
population. As mentioned above, there is an increasing crisis of legal under representation
among the poor of this state and nation.119 Many of these parties cite cost of legal services
as a major barrier to access. By opening its doors to international legal professionals,
Washington will be able to provide lower cost legal services for its poor and indigent
population. While it could be argued that this work is already being provided by pro-bono

117

See above
Footnote needed.
119
See section above
118

attorneys, there is no doubt that there is a much greater demand for these services than can
be filled by the supply of pro-bono attorney hours.
Lest there be any confusion, this proposed legislation is, by no means, an attempt,
or a proposal, to outsource the entire legal industry. There can be no doubt that there is,
and will continue to be, a demand for legal services provided in person. Assuming,
arguendo, that a significant portion of the Washington legal community were outsourced,
there would still remain a need for some kind of go between, or an on-site legal
professional who works here in Washington. More realistically, those tasks that are most
efficiently performed abroad will be, while those that cant be outsourced, for one reason
or another, will not be. Further, there may emerge a market in which those who still seek
out the personal touch, or prefer working with the attorney with whom theyve
established a personal relationship by some other means, and are willing to pay more for
those services.
Outsourcing work to international legal professionals presents a unique
opportunity for the Washington legal community to capitalize on an emerging, profitable
industry. As mentioned above, the legal outsourcing industry is bound to grow, especially
among technology companies. As Washingtons legal community grapples with ways to
better serve their technology clients, international outsourcing will undoubtedly emerge
as a significant possibility. By making clear the status of these international professionals,
Washington will create a clear and welcoming legal infrastructure for both the innovators
and consumers of this fledgling industry.
V. What A Possible Framework Might Look Like for International Legal
Professional As Ive finished this up, Id realized that like to put a section in here
outlining what a potential APR (or practice framework) might look like to provide greater
practice flexibility for outsourced international legal professionals. This section shouldnt

be too long most will be copied from APR 12 and 14. However, I think that it would be
good to outline in more detail what a proposed practice situation might look like.
VI.

Conclusion
The international legal outsourcing trend presents a unique economic and strategic

opportunity for the Washington legal community. While the trend in its current form may
not violate any specific ethical rules, its growth an expansion is inevitable. With swift,
caluculated action, the Washington legislature will have an opportunity to maximize the
potential of this emerging trend.