Brexit and practising rights for lawyers

9 July 2018

Two solicitor friends of mine recently asked me to sign their applications to register with the Law Society of Ireland.  I asked them if they were thinking of moving.  They weren’t, but they were making their applications “just in case, you know, because of Brexit”.  This brought home to me the fear and uncertainty which abounds amongst lawyers in relation to the implications Brexit may have upon their rights to practise in the EU.  Is this justified?  Should we be filing off applications to protect our position?  And will anyone ever provide a final, determinative answer on anything to do with Brexit?

The last question may have given the game away: as with most things Brexit-related the answer is we don’t yet know.  However, we can at least understand the current position with our practising rights, the potential risks in light of Brexit and the timetable for a more definitive answer.

Under the Lawyers’ Services Directive 1977, Lawyers’ Establishment Directive 1998, Professional Qualifications Directive 2005 and Framework Services Directive 2006, UK lawyers within the EU can currently:

  • provide legal services on a temporary basis;
  • establish permanently in another member state under their home title;
  • appear in court in conjunction with a local lawyer;
  • requalify without an equivalent examination after three years of regular and effective practice of host state law; and
  • set up a branch of a home state law firm using the firm title or use one of the legal forms of the host state to set up a new entity.

In short, UK lawyers currently benefit from free access to the EU legal services market. Contrast this with the position of lawyers in America, who are only licensed to practise in their home state and you may appreciate our privileged position in being able to work just as easily in Brussels as in Birmingham. 

Will this continue after Brexit? Theresa May hopes so.  On 2 March 2018, during the PM’s speech confirming that the UK will leave the single market, she proposed the continued recognition of professional qualifications and a “labour mobility framework”, so that UK businesses and individuals can continue to provide services across the EU. 

More specifically, the government is seeking to protect the position of lawyers currently practising in other EU member states.  The Article 50 negotiations on withdrawal matters aim to ensure that a lawyer whose professional qualifications are recognised under EU law in the country in which they live or work as a frontier worker before the withdrawal date can continue to rely on those qualifications to carry out their professional activities in that country after the withdrawal date. 

All well and good, but it remains to be seen whether the UK’s proposals are accepted by the EU.  Should we fail to reach a final agreement on the transitional arrangements before the UK leaves the EU, or on preferential market access at the end of the transitional period, the position for UK lawyers and law firms would default to the provision of services under the restrictive World Trade Organization rules.  Each member state would also be able to specify additional restrictions or grant a higher level of access than that granted under the WTO rules.  This means that the hurdles facing UK lawyers wishing to practise in the EU may differ between member states, adding another layer of uncertainty and complexity.   

The good news is that, under the Draft Withdrawal Agreement, the EU has proposed that all EU citizens arriving in the host state during the transitional period (from the date of withdrawal until 31.12.20) should have the same rights as those who arrived before the withdrawal date.  Hopefully this should provide some reassurance that there’s no need to panic (at least for now): UK lawyers should continue to be able to provide legal services throughout the EU for the next couple of years.

So what should we do next?  Sit tight, and keep an eye on the helpful Brexit papers produced by the Law Society.

It’s clearly in our interests to continue to be able to practice throughout the EU in an unfettered way.  But it’s worth remembering that this is also in the interests of other member states: the Bar Council states in its Brexit papers that “around 100 EU law firms together with a significant number of individual lawyers are established in London and high ranking French Bar representatives have expressed their strong desire to retain free movement rights for French lawyers in the UK, both for establishment of new law firms and also fly in fly out provision of services”.   Let’s hope the government will therefore be pushing at an open door in seeking to maintain free access to the EU’s legal services market. 

However, even if we don’t continue to enjoy the same unfettered access, it’s worth remembering that, in the global internet age, any restrictions we face will be less of a practical impediment than they would have been 20 years ago.  While Brexit may draw some boundaries between us and the EU legal services market, improvements in technology mean that we shouldn’t feel the impact of this so acutely.  Indeed, it may be that lawyers of the future who can access the world from their keyboard (or touch screen) just as easily as they can access the lawyer in the next room will look back and wonder what all the fuss was about. 

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