Should a Foreign Lawyer Take the QLTS or the New York Bar Exam?


ny bar exam for foreign lawyersIn one of our recent blog posts, we discussed the impact of the globalisation of business on the world of legal practice. One trend that we identified, in particular, is the need for young lawyers to find ways to differentiate themselves in the fiercely competitive junior ranks, by developing their profile as an international lawyer.

Junior lawyers increasingly seek a competitive edge through admission to practice in a second jurisdiction. Dual-qualified lawyers offer the breadth and depth of multi-jurisdictional advice that makes them truly international legal advisers, able to deliver great commercial advice on an international scale to key clients or in-house on important matters.

If this is something that appeals to you (and it really should), you’ll need to decide which jurisdiction it should be. For most people, the choice invariably comes down to qualifying either as an English solicitor or a New York attorney.

London and New York City are the two leading financial centres in the world; home to the largest international law firms; capitals for transactional, regulatory and litigation practice, and attract the greatest number of foreign and internationally-qualified lawyers. Indeed, research into international commercial arbitration conducted by Queen Mary University of London in 2010 found that English law is the leading choice of law for international commercial agreements, with New York law a distant second. London was also singled out as the most popular seat for international arbitration hearings, although New York is striving to become more prominent as an arbitration centre.

But even lawyers with no intention of moving to London or New York stand to gain in their home jurisdiction from dual-qualification. The increasingly globalised nature of business means that demand for lawyers qualified to advise on cross-border deals and disputes, as well as local issues, is growing. Indeed, in certain jurisdictions, English law is the preferred choice of law even for domestic commercial transactions.

In order to help you decide which qualification to choose, we’ve prepared a comparison of the New York Bar Exam for foreign lawyers and the process for becoming a dual-qualified English solicitor, focusing on what we think are the most important aspects of the respective qualification process for each jurisdiction. We’ve had to take the human element out of the equation for obvious reasons (e.g. whether you have friends or family in either city, friends who have gone through the process already, a job lined up in one of the cities etc.), and we fully recognise that for some people the human element could be the decisive factor in making up your mind. First let’s introduce the two alternatives.

The Qualified Lawyers Transfer Scheme

The process for lawyers qualified outside England and Wales to become an English solicitor (the full title is Solicitor of the Senior Courts of England and Wales) is called the Qualified Lawyers Transfer Scheme (QLTS). It should be clarified that technically, there is no such thing as a British lawyer, as the UK is made up of three different jurisdictions – England & Wales, Scotland and Northern Ireland. The legal profession in England & Wales is in fact sub-divided into three different professions – solicitors, barristers and legal executives. Barristers focus on advocacy and specialist legal advice, and are usually self-employed, working in shared offices known as chambers. Solicitors and legal executives usually work within law firms, the key difference being that certain types of legal work cannot be carried out by legal executives unless supervised by a solicitor. The QLTS is administered by the Solicitors Regulation Authority (SRA), which regulates the legal profession in England and Wales.

The New York State Bar Exam

To become a New York attorney or to practise law in New York, you need to sit the New York Bar Exam as a foreign or internationally-qualified lawyer. The process is governed by the New York State Board of Law Examiners. Although foreign lawyers sit the same exams as candidates from New York or elsewhere in the United States, there are differences for foreign lawyers, such as the eligibility requirements and the fees.

Eligibility

There are no formal eligibility requirements to register and sit the QLTS assessments, but in order to be admitted as an English solicitor by the SRA after passing the assessments, you need to be a qualified lawyer of good standing in a recognised jurisdiction. There are no experience requirements and there is no vocational training period.

To be eligible to sit the New York Bar Exam, a foreign lawyer must satisfy four eligibility tests:

  1. The candidate must have a qualifying degree in law
  2. The law degree is from a law school accredited by the accrediting agency of the government of the country of origin
  3. The period of study of the law degree must be substantially equivalent in duration to the law degree requirements of the American Bar Association (ABA)
  4. The foreign country’s jurisprudence must be based on the English Common Law, and the law degree must be substantially equivalent in content to an ABA-approved law degree

It should be pointed out that these rules do not require you to have been admitted to practise law in your home jurisdiction, as long as you fulfil the educational requirements. In addition, you cannot register for the exam unless you are 21 years of age. A candidate that meets the above requirements is eligible to sit the New York Bar Exam. Candidates that are qualified to practise in a common law jurisdiction or a non-common law jurisdiction, but who did not complete a qualifying law degree of equivalent duration or equivalent substance, can “cure” the deficiency in their application by completing a one year LLM in an ABA-approved law school in the US. The eligibility rules are complicated, and all foreign applicants are required to complete an online Foreign Evaluation Form in advance.

Exam Structure

The QLTS consists of two assessments: Part I, the Multiple Choice Test (MCT), consists of 180 questions on 11 “outcomes”, or core areas of English law, divided into a morning and an afternoon session of three hours each. Candidates are tested on their knowledge and application of the law. The MCT is held twice a year, usually in February and July.

Part II, the Objective Structured Clinical Examination (OSCE), assesses candidates on five legal skills, namely interviewing, advocacy, legal research, drafting and legal writing in the subjects of business, civil and criminal litigation, property and probate. The OSCE assessments take place over a few days, and are held twice a year, usually in June and November.

The New York Bar Exam takes place over two days. Day one includes the New York section of 5 essay questions and 50 multiple choice questions, and a multistate performance test question.

Day two consists of 200 multistate bar multiple choice questions, covering legal principles across a range of subjects.

In addition to the New York Bar Exam, if you want to be admitted to practise in New York, you need to pass the Multistate Professional Responsibility Exam. This can be done either before or after passing the New York Bar Exam.

Test Provider

The QLTS assessments are administered by Kaplan QLTS, as a result of an arrangement with the SRA. As the sole assessment provider, Kaplan QLTS is not permitted to provide any preparation courses for the QLTS.

The New York Bar Exam is administered by the New York State Board of Law Examiners, while the Multistate Professional Responsibility Exam is administered by the National Conference of Bar Examiners.

Place of Examination

The QLTS assessments currently take place in London only, with the MCT at the ExCel London Exhibition and Convention Centre in the Docklands area of East London, and the OSCE in Central London. However, there are plans to open MCT test centres in several international locations by way of computer-based online delivery, possibly in 2016.

The New York Bar Exam can be sat in any of five different locations across the State of New York. These are Albany, Buffalo, New York City, Saratoga, and White Plains.

Exam Rules and Restrictions

There is no limit on the number of attempts a candidate may make on the QLTS, but they must pass the MCT before they can sit the OSCE assessment. No books, notes or equipment may be brought into any of the assessments.

Candidates for the New York Bar must abide by two sets of rules; the Court Rules for Admission of Attorneys and Counselors at Law, and the State Board of Law Examiners Rules. The details of the rules are beyond the scope of this article, and more information can be found here.

Exam Fees

The two parts of the QLTS assessments are sat separately, and therefore there are fees for each of them. The fee for the MCT is £565 plus VAT, and the fee for the OSCE is £2,925 plus VAT.

The New York Bar Exam is priced according to the origin of the candidate. Candidates that have a law degree from a foreign university must pay a fee of $750, while other candidates only have to pay $250. In addition, there is a fee of $80 for registering on the Multistate Professional Responsibility Exam, which as mentioned earlier must be passed in order to be admitted by the New York Bar.

Pass Rates

On the QLTS, the average pass rate for the MCT between 2012 and 2014 was 53%, while the average pass rate on the OSCE in 2014 was 80%.

The average pass rate for foreign-educated candidates on the New York Bar was 36% between 2010 and 2014, compared to an overall average of 68% for all candidates. For the Multistate Professional Responsibility Exam, each state sets its own pass mark. The New York pass mark is 85%, and the mean scaled score in 2014 across all states was 94%.

Training Options

As mentioned above, Kaplan QLTS, the assessment provider, is not permitted by the terms of its agreement with the SRA to provide any training or preparation courses for the QLTS assessments. QLTS School provides comprehensive training for both the MCT and OSCE assessments, through a combination of books, online video tutorials, hundreds of practice questions, mock assessments, and teleconference tutorials, which means you can study for the assessments any place, any time.

There are a number of providers of Bar Review Courses for the New York Bar, ranging in price from just under $1,000 to upwards of $6,000. The format of these courses vary, with some being classroom based, others being distance learning only, and others still combining both formats. A useful review of some of the leading courses can be found here.

Scope of Syllabus

The QLTS tests candidates on 11 core areas of English law, through the MCT assessment. These subjects are:

  • The English Legal System and European Union Law
  • Constitutional Law and Judicial Review
  • Professional Conduct and Solicitors’ Accounts
  • Financial Services, Money Laundering and Taxation
  • Contract Law
  • Torts
  • Criminal Law
  • Property Law
  • Equity & Trusts
  • Human Rights
  • Business Law

In addition, candidates are assessed on their problem-solving skills, transactional and dispute resolution skills, and professional values and ethics, through the OSCE assessment. As mentioned above, the OSCE assessment adds the subjects of civil and criminal procedure and probate

The New York Bar Exam syllabus is predominantly substantive law, but the multistate performance test does assess practical legal skills. Its legal syllabus includes several areas of New York law that do not feature in the equivalent QLTS syllabus, such as conflicts of laws, evidence and family law. It does not include accounts, taxation, financial regulations, or human rights, which are part of the QLTS.

The multistate bar exam covers civil procedure, constitutional law, contracts, criminal law and procedure, evidence, real property and torts, based on legal principles rather than specific local laws.

Duration of Studies

There is no fixed amount of time for a QLTS candidate to spend preparing for the assessments, but many candidates spend 9-12 months in total preparing for and completing the two parts of the QLTS.

Candidates for the New York Bar Exam must have completed an approved course of legal study, of a duration of at least three years. In terms of preparation for the Bar Exam itself, bar review courses vary in length, depending on the needs of the candidate, with intensive courses lasting for 6-8 weeks, and longer-term courses taking place on weekends over 5-6 months.

Exemptions

You may be eligible for a partial exemption from certain aspects of the QLTS’s MCT and OSCE assessments if you are either an intra-UK lawyer (i.e. a Scottish or Northern Irish lawyer), or qualified in the EEA/EU or Switzerland jurisdiction (the EU plus Iceland, Liechtenstein and Norway).

If you have graduated from the Legal Practice Course (LPC), which is the vocational stage of the domestic route for qualification in England, you may be fully exempt from sitting the MCT.

The New York Supreme Court Appellate Division has discretion to admit lawyers without sitting the New York Bar who are admitted to practise in the highest courts of another US state, or in another common law jurisdiction which admits New York attorneys to practise without an exam. Such lawyers must be at least 26 years old, have practised for at least 5 of the previous 7 years, and have a degree from an approved US law school.

Difficulty (Day One Outcomes v NY Standards)

It is far from straightforward comparing the level of difficulty of the QLTS and New York Bar Exam. While both sets of exams incorporate application of legal knowledge and application of legal skills, the QLTS has a greater emphasis on the practical aspect of legal practice. For more experienced lawyers, this can help them highlight their abilities, performing tasks they already do on a daily basis.

In terms of legal content, the QLTS Day One Outcomes do include areas of law which may be particularly unfamiliar to foreign qualified lawyers. In particular, Solicitors’ Accounts and Taxation are regarded by some as especially difficult. The OSCE assessment is designed to be a rigorous test of applied practical legal skills and legal knowledge, and is a form of assessment used to examine other knowledge-based professionals, such as medical students.

Number of Exam Takers

There were 398 candidates on the MCT assessment of the QLTS in February 2015, while there were 287 candidates on the OSCE assessment in November 2014.

The New York Bar had 3,052 foreign-educated candidates, and a total of 11,195 candidates in July 2014.

Membership

Once you have passed both parts of the QLTS, you can apply to the SRA for admission as a solicitor. At this point, the SRA will require evidence of your eligibility, including a certificate of good standing from your home bar association or law society. If you do not intend to practise in England and Wales following successful completion of the QLTS, you can still maintain your name on the Roll of Solicitors without a practising certificate.

For the New York Bar, once you have passed the Multistate Professional Responsibility Exam and passed the New York Bar exam, you can apply for admission to the New York Bar. You have up to three years to apply after passing the New York Bar exam. All candidates for admission also have to demonstrate that they have completed a minimum of 50 hours of pro bono legal work. The pro bono work can be performed either in the US or abroad, but must have been supervised by either a law school faculty member, a practising attorney, or a judge.

CPD v CLE

English Solicitors are required to comply with the SRA’s Continuing Professional Development (CPD) regime. The SRA announced major changes to CPD in 2014, which is being implemented for all solicitors from November 2016. While under the current regime, solicitors had to complete a minimum of 16 hours per year of training, the new regime will simply require solicitors to ensure they comply with the provisions of a competence statement, concerning correct legal practice. This is a move away from a formalistic CPD regime, giving solicitors the discretion to develop CPD to suit their practising needs.

The New York Bar’s Continuing Legal Education (CLE) regime is also due to change, with reforms to come into force in January 2016. The current regime requires newly-qualified attorneys to attend 16 hours of CLE per year, for the first two years, and then they are required to attend 12 hours per year as experienced attorneys. These hours must be fulfilled in face-to-face classes or via remote learning. The reforms will allow certain aspects of the 16 hours to be fulfilled using alternative methods. Newly-qualified attorneys that practise in a firm based outside the US must also attend 16 hours of CLE per year, but are less restricted in the format for approved CLE.

Popularity

The number of foreign-educated candidates applying to sit the New York Bar Exam each year could suggest that the New York attorney qualification is more popular than the title English Solicitor. However, these numbers are somewhat misleading. The QLTS is open to qualified lawyers only, allowing them to use their existing legal qualification as a shortcut to gaining English legal qualification.

The New York Bar, on the other hand, is open to both foreign qualified lawyers and foreign-educated law students, and is the only route for foreign lawyers to practise in New York. Some foreign-educated students interested in becoming an English solicitor register for postgraduate studies in the UK and then follow the domestic route to becoming an English solicitor, with a training contract or Period of Recognised Training. Lawyers from the EU are also permitted to work in the UK as a Registered European Lawyer, without taking the QLTS assessments.

In addition, the QLTS remains relatively new, having been created by the SRA in 2010.

Demand

The demand for English solicitors remains high, and is growing, both in the UK and internationally. As business becomes ever more globalised, English law and the English civil justice system is helping maintain confidence in the viability of international contracts with parties from less robust legal systems. As a result, there is a growing need for lawyers capable of operating on a cross-jurisdictional basis, qualified and knowledgeable in English legal practice.

While New York law is significantly less prominent in international contracts and dispute resolution, as a financial powerhouse, the role of New York law firms and lawyers remains integral to the world economy.

To sum it all up…

There are undoubtedly significant and interesting opportunities for lawyers from around the world that are motivated to find a way to stand out from the crowd. Both the QLTS and the New York Bar Exam provide opportunities for foreign or internationally-qualified lawyers to enhance their professional profile. While the two schemes share many similarities, the QLTS is a more specialised course, specifically designed for foreign lawyers transferring their qualification, and is less generalist than the New York Bar Exam.

About 20% of the lawyers taking the QLTS assessments are in fact qualified US attorneys, who recognise the professional advantages offered by having English qualification. In fact, if you are already an English solicitor or US attorney, earning the other qualification may be the perfect step towards career enhancement.

qlts sra solicitor


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