British educated lawyers and the commonwealth.

[Capt. Ridley's Shooting Party]

Please settle a debate that I'm having on another forum.

A member states that "in most cases", a British lawyer is free to practice law immediately in many countries around the world (I presume he's referring to commonwealth countries, I don't think this argument would make much sense in a system not based on English common law), without taking another course, whereas, for example, an American lawyer, would be compelled to take another course in that particular jurisdiction before starting practice.

I find this claim extraordinary. For one, as far as I understand it, English lawyers cannot practice in Scotland without taking an additional course, never mind somewhere like Australia. Add to this the large body of case law different between the nations and the natural differences between the two systems since separation.

What's the SD here?

[Polycarp]

IANAL, IANABritCommonwealthL, and other relevant disclaimers:

I don't pretend to know the answer, but I have a hunch your friend is operating from something true at one point in the past, but over 75 years out of date. The British common law was in fact the foundation of the legal systems of Canada, Australia, New Zealand, South Africa, Barbados, etc. And a lawyer could find it easy to pick up on the minor local differences. But since the Statute of Westminster, each of the former dominions has its own case law, precedents, variant statute law, etc., to the point that no English lawyer would ipso facto understand how something might be proper or improper under laws related to the Canadian Constitution Acts, the complex and unusual legal system of Australia, etc.

[Baron Greenback]

Originally Posted by Polycarp

The British common law...

Just a nitpick, but the basis for the other countries is almost certainly English common law. Scotland has a different legal tradition.

[Leaffan]

Originally Posted by Struan

Just a nitpick, but the basis for the other countries is almost certainly English common law. Scotland has a different legal tradition.

Google Fight would confirm that at:

72,700,000 for English Common Law, vs
26,800,000 for British Common Law.

[Baron Greenback]

According to the wiki article on Scots Law, South Africa seems to be the only Commonwealth place that has a similar system.

[Princhester]

There is an element of truth in what your friend says. There is sufficient in common between the legal systems of Australia, Hong Kong, New Zealand, Fiji and various other places that lawyers trained in one system can typically become admitted to practice in the others by taking only fairly minimal exams: typically in certain professional subjects rather than basic legal content. Contrastingly because there is much less in common between say Australia and the US that much more study is required to cross over.

Most laypeople overestimate the importance to lawyers of knowing about every case precedent off the top of their head. I'd have to do far far less study to be fully up to speed on English caselaw concerning a given problem in my area of speciality than I would to be fully up to speed on Australian caselaw concerning a given problem outside my area of speciality.

The important thing is having a grounding in the common law style of legal thinking.

[t-bonham@scc.net]

Originally Posted by Dominic Mulligan

whereas, for example, an American lawyer, would be compelled to take another course in that particular jurisdiction before starting practice.

Not quite correct.
To practice in another state, a person just has to pass the bar exam for that state. You don't necessarily have to take any courses in the state. In practice though, it's most common to take a course that's mainly a 'variations' course -- one that covers the variations & unique features in that state's laws.

In some states (like here in Minnesota), you can obtain a waiver from taking the bar exam if you have been practicing law in another state for at least 5 years.

[Northern Piper]

It's not the case in Canada that a British lawyer can autormatically practise law as soon as they hit ground. To practise law in Canada, they must be admitted by the Law Society of the province or territory where they wish to practise.

For candidates for admission from outside Canada, the Federation of Law Societies has a National Committee on Accreditation. An applicant from outside Canada who wishes to practise in the common law jurisdicitons of Canada applies to that Committee, which reviews the applicant's qualifications and reccomends what additional studies the applicant is required to take before they will recommend admission by a Law Society.

"Equivalence to an approved Canadian LL.B. degree" serves as the Committee's benchmark when it evaluates applicants with foreign legal education or training. The Certificate of Qualification does not, however, duplicate the LL.B. degree, which varies between law schools. NCA applicants may be asked to challenge examinations in subjects that all law schools may not require for the LL.B. degree.

The NCA bases its recommendation on the applicant's legal background, both academic and professional. It takes into account the source country of legal education (common law, non-common law, "hybrid"), subject matter studied, academic marks and standing, nature of the degree granting institution, professional qualifications and length and nature of professional legal experience.

Their web-site indicates that the Committee reviews each applicant's file individually, so there is no automatic rule for lawyers from another country, such as the U.K. Here's what their average approach will be:

Applicants from England (including External LL.B. degree programs), Wales, Australia, New Zealand, West Indies, Hong Kong and Singapore can expect to be required to take 30-60 credit hours in a Canadian law school or equivalent challenge examinations if they have obtained a Second Division standing (or better) in a 3 year honours law program following upon an undergraduate degree. Applicants who take a 2 year law honours program with a Second Division standing (or better) are usually asked to complete more credit hours or examinations than applicants with three year degrees. The Committee looks behind the applicant's class of degree and also takes into account actual grades (including first year grades) in all subjects. In particular, the Committee looks closely at Second Class degrees and evaluates the range of marks achieved.

[Billdo]

Under the New York Rules for the Admission of Attorneys, where someone has completed legal training in a common law country that qualifies for bar admission in that country and is "the substantial equivalent of the legal education provided by an approved law school in the United States", that person may sit for the bar exam on the same basis as a graduate of a U.S. accredited law school. If the person does not meet these requirements (or is from a non-common law jurisdiction), he or she may complete a one year (usually LL.M.) program in U.S. law to qualify.

As to admission to the New York bar by lawyers admitted in other jurisdictions, New York provides that lawyers may be admitted without taking the bar exam (waive in) if: (i) they are admitted in a jurisdiction that would permit a similarly situated New York lawyer to waive in; (ii) they have been practicing law for at least five of the last seven years; and (iii) they are graduates of an accredited U.S. law school. Lawyers waiving in are still subject to character and fitness and other requirements. Most states allow lawyers who have practice at least five years from other states to waive in to their bars, but there are some notable exceptions, including New Jersey and Florida, which want to protect their legal markets from lawyers from New York and Philadelphia, among other places.

[Ice Wolf]

It appears, according to this page, generally lawyers between Commonwealth countries apply to that country's law society or equivalent for assessment and qualification to practice.