The regulations to implement the Establishment Directive for Lawyers were signed into law on 29 December 2003.
The Directive entitles a lawyer to move to any other EU Member State and practice law under his home title. After a period of three years the visiting lawyer may choose to take out the local qualification and cannot be required to pass any examination or test in order to do so.
Article 3 of the Directive makes it obligatory for the immigrant lawyer to register with the competent authority in the state in which he is practising. The regulations provide for registration of immigrant lawyers by the Bar Council and the Law Society (competent authorities), who must liaise closely with corresponding authorities in other members states to facilitate implementation of the Directive and prevent abuse. An application to register must be accompanied by:
- a certificate confirming the applicant's registration with the home authority,
- confirmation of an indemnity against any losses arising from claims against the applicant in respect of professional activities in the State, in accordance with the rules of the Law Society or Bar Council, and
- if the applicant wishes to pursue the activities of a solicitor, confirmation of payment of the annual contribution to the Compensation Fund payable by solicitors, or
- confirmation of professional indemnity insurance cover or membership of a professional guarantee fund, in accordance with the rules of the home member state and
- confirmation that the cover is equivalent in terms of the conditions and extent as that required for solicitors and barristers, or if not equivalent, that additional cover has been arranged, and
- where required, translations of documents and
- the fee specified by the competent authority.
This will result in a registration certificate and entry of the applicant's name on a public register established for this purpose. A registration certificate must be renewed annually. Registration may be subject to conditions. It is possible for an applicant to apply to the alternative registering body, but no lawyer may be registered with both. Regulation 4 (3) provides for representation at least involving the right to vote in elections to the professional governing bodies (Bar Council or Law Society).
Scope of the Immigrant Lawyer's Right to Practice
Article 5 of the Directive provides that the immigrant lawyer can carry on the same activities as he would be entitled to in his home state, under his home professional title. He can advise on the law of the host state as well as that of his home state and EU law, and has a right of audience before courts and tribunals in conjunction with a locally qualified lawyer. Art. 5 (2) provides that in states where conveyancing and probate work is reserved to a certain category of lawyers, lawyers coming from other states where such activities are carried on by non-lawyers can be excluded from practising such activities. This would seem to bar lawyers coming from most EU Member States from conducting conveyancing and probate work, with the exception of English and Scots solicitors (and possibly some Scandinavian lawyers), and is implemented in regulation 10(4).
Rules of Professional Conduct
Art. 6 (1) of the Directive provides that the immigrant lawyer is subject to the rules of professional conduct that apply to lawyers in the host state. Thus, immigrant lawyers in Ireland will be subject to the professional conduct and the solicitors' accounts rules if they register with the Law Society.
Article 7 provides that if the "obligations in force in the host Member State" are not complied with, the rules of procedure, penalties and remedies provided for in the host Member State shall apply. Therefore, immigrant lawyers practising as solicitors are subject to the full rigour of the Solicitors Acts and Regulations. This is reflected in Regulations 11 and 12 of the 2003 Regulations.
Under Article 10(1) an immigrant lawyer is entitled to be exempted from taking the aptitude test if he can show that he has "effectively and regularly" pursued "an activity in the law of Ireland" for a period of three years. An activity of Irish law includes EU law, and under regulation 16 (4), in certain circumstances, at the discretion of the competent authority, exemption may be granted if the period for which the applicant practiced Irish law was less than three years, provided professional activities were pursued for at least that period in the State.
Regulation 16 implements the requirement that the immigrant lawyer is to furnish the host competent authority with proof of the practice of Irish law. He is to provide the competent authority with any relevant information and documents, notably on the number of cases dealt with and their nature. The competent authority may verify the nature of the activity pursued. If necessary it can request the applicant to provide orally, or in writing, clarification or further details on the information and documents provided.
The Article gives very limited grounds for refusal. Article 10(4) provides that a refusal can be made by a reasoned decision, subject to appeal, where this is in the public interest, notably because of disciplinary proceedings, complaints or incidents of any kind. This right of refusal appears to be premised on conduct of the applicant, rather than legal competence or knowledge. It is reflected in Regulation 16 (7).
For further details in relation to the foregoing, please contact Nicola Kelly, Practice Regulation Administrator in the Regulation Department of the Law Society.
Prepared by Parliamentary & Law Reform Executive, Law Society of Ireland