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Cite as: March 2013 87 (3) LIJ, p.30

Many practitioners toy with the idea of working in the US, but few know what is involved in getting that prized certificate. One Melbourne lawyer tells how it is done.
 

By Naomi Sheridan

Like many Australians, working overseas was something I had always wanted to do and the thought of practising law in the US particularly appealed to me.

Unfortunately, given that I am not from a commercial law background, I found that recruiters were mostly unwilling to help me find a role. I was also faced with many rejections and no one who was willing to offer advice on how I might be able to make my ambition a reality.

After almost two years of hard work, commitment and perseverance I have joined Littler Mendelson, the largest US-based employment law firm. I am therefore sharing my experience so that others hoping to work in the US can see that with determination it is possible to work there despite the tough job market.

My first piece of advice is to become US qualified. No longer is it possible to get a firm to take interest in you if you don’t take the Bar exam and get admitted.

In the past some larger US firms have been willing to employ foreign lawyers without US state Bar admission. However, given the state of the economy and the tough job market, firms can afford to be much more selective when considering candidates.

As such, if you are serious about working in the US, you need to do the same hard slog that all US attorneys do and sit the Bar exam for the state in which you would like to practise. I recommend spending time in the US to get a feel for a few states before you decide which Bar exam to sit. Each state is different and their state laws differ widely in some areas. California and New York are generally considered to be the hardest two states in which to obtain admission as their exams are known to be the most difficult.

Bar review course

Once you decide on the state I strongly recommend enrolling in a Bar review course. I selected Barbri, but there are many different options. For me Barbri was excellent and I do not believe I could have passed the exam without doing the course. I particularly liked it because of the flexibility with which you can study. They offer a mobile application, which can be used on an iPhone, iPad, iPod touch or Android. Through the “app” you can listen to lectures, read course materials, do practice exam questions and multiple choice questions, chat with other students and track your progress and results against others doing the course. It is impressive technology.

Like many other Bar review course providers, Barbri also offers help to people undertaking the Multistate Professional Responsibility Examination (MPRE). In addition to taking and passing a state Bar exam, taking and passing the MPRE is a prerequisite to anyone seeking admission to practice in the US. I chose to do the MPRE first to get it out of the way before undertaking my Bar exam study, but you can elect to do it at any time before or after sitting the Bar exam. Students in the US typically take the MPRE during their first or second year of law school.

You have three opportunities in which to sit the MPRE each year: March or April, August and November, and the good news is that once you have passed you never have to sit it again. The results are applicable to any state in which you choose to practise. Further details on the MPRE can be found at www.ncbex.org/multistate-tests/mpre.

I chose to practise in California and therefore sat the February Bar exam. California offers two sittings each year, February and July.

Register as foreign

Before being permitted to take a Bar exam, however, you need to register as a foreign attorney with the Bar of the state in which you will be seeking admission. The registration process takes some time, so be patient and plan.

To be able to register you need to demonstrate that you are a qualified lawyer and that you hold a current practising certificate. Generally, the US state Bars require you to provide a Certificate of Good Standing as well as certified copies of your academic transcripts and your current practising certificate.

In Victoria, the Law Institute of Victoria (LIV) prepares Certificates of Fitness, while the Supreme Court of Victoria prepares Certificates of Good Standing. To obtain a Certificate of Good Standing you must first apply for a Certificate of Fitness from the LIV. The LIV will then provide you with the certificate so that the Supreme Court can process your Certificate of Good Standing. To expedite the process, you can request that the LIV send the Supreme Court the certificate directly. This process may differ slightly in other states.

Once you have been registered, you will be granted approval to sit the Bar exam and apply for admission after passing the exam, the MPRE and satisfactorily completing a moral character determination.

Sitting the Bar exam is a gruelling process and its difficulty should not be underestimated. In my view, you need to be able to commit to at least three months of full-time dedicated study before sitting it. If you combine this with the completion of a Bar review course, you will be in the best possible position to pass. Do not, however, be discouraged if you do not pass on the first attempt. While I was lucky enough to have to sit it only once, the average pass rate is about 55 per cent and most people sit it at least twice. Some of the most famous US attorneys sat the Bar exam many times before passing.

Hillary Clinton failed the DC Bar exam in the 1970s, but passed the Arkansas Bar and went on to have a successful legal career as a partner in the Rose Law Firm and then an even more successful political career.

John F. Kennedy Jr failed the New York Bar exam twice before passing on the third try.

So don’t despair. Even if you don’t pass the first time you can still go on to achieve a successful US legal career.

The format of the exam differs from state to state so you will need to refer to the relevant state Bar to determine the state’s specific testing requirements. In California and New York, the exam consists of three days of testing. Days 1 and 3 involve a half-day of essay questions and a half-day of practical testing on each day. The practical testing component requires examinees to read and absorb a mock client file and library of reference materials which may contain a combination of legislation, case law, bylaws and so on. You cannot study black-letter law for this portion of the exam because the library will often contain fictitious law. Day 2 tests examinees on US federal law through multiple choice questions. Once you take and pass the federal law component of one state Bar exam you do not have to sit that part of the exam again if you wish to seek admission in other states.

Moral character

Once you have studied hard, taken and passed the MPRE and taken and passed the Bar exam, the next step is to apply for your moral character determination. The process usually takes six months so the state Bars recommend that you start the application process once you are registered as a foreign attorney. You do not have to wait until you pass the Bar exam to apply.

To apply for moral character determination you need to complete detailed paperwork with a lot of personal information about both you and your family, your education and working history. You must submit digital fingerprints and a further Certificate of Good Standing. There is also a fee for processing the determination.

After the determination has been completed and provided you are granted status as a person of good moral character, you will be permitted to be sworn in as a US attorney. It is at this point that it finally feels like all the hard work has paid off and regardless of whether you decide to live and work in the US long term, you are likely to be very attractive to employers in Australia once you have dual qualifications because there are many US companies now operating in Australia and vice versa. It is a great selling point to be able to offer clients some general advice in relation to both jurisdictions.

Once you have obtained your US qualification the next step is to get an offer of employment. My best advice here is to start networking the minute you get to the US. I flew back and forth to the US many times over 18 months. Partly this was to sit the MPRE, to study and to sit the Bar exam, but it also helped me make business contacts. It is much easier to get people to take an interest in you and to develop confidence that you are serious about making the move if you are able to meet them face to face.

I joined many groups to expand my networks and I contacted as many firms as I could to introduce myself, get my name out there and to express an interest in attending any client networking events and/or other educational seminars they might hold. I learnt very quickly that confidence and perseverance are important to succeed in the US and unless you are prepared to put yourself out there and make the effort to connect with people then it will be very difficult to succeed. Littler Mendelson was the first firm I connected with in the US and I joined them in October 2012.

I also recommend setting up a good LinkedIn page and joining as many relevant work-related groups as you can. It is a great way to get your details in front of relevant organisations and recruiters who may be on the lookout for new candidates for their clients. It is also important to have your resume formatted to a US style. Australian resumes tend to be different and I found that many firms would not look at mine in the beginning because of this. Once I had my resume reformatted I was a lot more successful in generating interest.

The local Australian Consulate and any groups that cater for Australians living abroad, like Advance, are also great resources to tap into. They hold many social and business networking events throughout the year and can be a fantastic way of meeting new people in the US. The Consulate is also able to help Australians who run into issues while abroad.

Legal authorisation

Once you have obtained an offer of employment in the US, the next step is to obtain legal authorisation to work there.

It is advisable to see an immigration lawyer in the US early in your relocation process. It is important that you have the correct information about your ability to obtain legal work authorisation. While employers will be careful in discussing this with you at the start due to discrimination issues, it will inevitably come up as you go down the recruitment path with a potential employer. They will want to know how difficult it might be for them to hire you.

Australians are fortunate because we are the only non-Americans who have access to a special US work visa called the E3. It is available to certain “highly skilled” Australians and is generally much easier to obtain than the traditional US work visa or the green card lottery process. You should get advice early on whether you qualify for this type of visa as certain restrictions and limitations do apply, but most lawyers qualify based on education.

Once your work authorisation has been granted you must enter the US and apply for a social security number. You cannot legally start work until a number has been issued, but the good news is that this is the last step in the process before you start your new career.

I am happy to say that I am now at the end of what has been a very long but extremely rewarding time in my life and I am thrilled to be commencing the next chapter of my US story.



Naomi Sheridan worked for the Australian Industry Group, Hall & Wilcox and AJ Macken & Co before moving to the US, where she is an associate with Littler Mendelson in California.

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