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Brexit and practising certificates

17 May 2021 / Brexit Print

The PC brigade

Brexit is the gift that keeps on giving. Duncan Grehan explains international law practice post-Brexit and solicitors’ practising certificates in Ireland.

On 11 November 2020, the Law Society – anticipating Brexit – published on its website a detailed review of the regulatory framework for issuing practising certificates to lawyers based outside of the jurisdiction.

This review remains applicable today, due to the Society’s recent discussion and settlement of issues post-Brexit with the law societies of England and Wales, and Northern Ireland. It sets out various guides for those lawyers falling into any of the three categories reviewed, namely:

  1. Changes now to the annual certification process by the Law Society of Ireland,
  2. The post-Brexit practice rules applying to UK lawyers,
  3. The conditions for lawyers qualified in an EU member state practising in Ireland or other EU member states, and the possibility of lawyers from other countries in the world practising law in Ireland and in other EU states.

Items (1) to (3) take into account the definition of EU lawyers’ free movement and establishment rights, as provided in the Establishment Directive (98/5/EC) of 16 February 1998, and as clarified by the CJEU decision of 7 May 2019 in the case of Eirinaios v Athinon (C-431/17), in which a monk in Greece, having acquired the professional title of a lawyer in another EU member state (Cyprus) was wrongfully refused entry to the Athens Bar.

The directive’s article 3 provides that any EU lawyer registered by the competent authority in his home member state shall be entitled to pursue, on a permanent basis, in any other member state under his home country’s professional title, the activities then specified in article 5.

Article 6 states that the lawyer “shall be subject to the same rules of professional conduct as lawyers practising under the relevant professional title of the host member state in respect of all activities he pursues in its territory”. 

Annual certification

The annual certification process by the Law Society of Ireland of permitting the practice and supply of legal services as solicitors has a new regulatory basis, replacing (although not much changing) the old rules with effect from 1 January 2021.

As before, any breach may be considered misconduct, which can result in criminal charges and in permanent strike-off from the Roll. This process is interlinked to items (2) and (3).

The Solicitors Acts 1954-2015 and their implementing regulations confirm that a practising certificate (PC) only entitles a solicitor to practise in Ireland from a physical establishment here, and a PC will only issue to someone so established in Ireland and who meets all the other requirements, such as proof of professional indemnity insurance (PII). Irish-qualified solicitors based in the UK or elsewhere seeking a PC from the Law Society have no entitlement to one.

The 2021 rules on PCs are found in SI 655 of 2020 (Irish solicitors’ PCs) and in SI 642 of 2020 (registered EU lawyers’ ‘qualifying’ PCs). Each statutory instrument defines ‘practise’ as the provision of legal services, or the intention to do so, “from an establishment in the State” where such services “relate to the law of the State”, including EU law as it forms part of the law of the State. These certificates, which are only valid for a year, define the free movement and territorial scope of an Irish solicitor’s law practice to one that is established in the State.

The admission of non-Ireland qualified lawyers to practise in Ireland (or elsewhere) is largely dependent on the terms of any bilateral agreement between the Law Society and the competent authority or bar association of the applicant’s country.

The professions of solicitors and barristers in Ireland are trained in two separate independent institutions – the Law Society of Ireland and the Bar of Ireland – although both have a common statutory regulator of their services. This article deals primarily with the former.

The right of solicitors qualified in Ireland to practise as a solicitor is limited. It is subject to a year-to-year, one-year term, and a valid PC. It must be from a physical establishment in Ireland and relate to the laws of Ireland, including EU law. Irish barristers’ professional service is not subject to any similar limited right.

Post-Brexit regulation

Since 1 January 2021, the thousands of lawyers from the UK who have enrolled as solicitors here in recent years have no EU law-based right to call themselves practising Irish solicitors. In March 2021, following talks, a bilateral agreement with the Solicitors Regulatory Authority (Britain) was concluded. It was agreed to reintroduce mutual recognition on the same basis as had been in place before 31 December 2020.

It has the status of public law by SI 741/2020, by which, from 1 January 2021, section 44 [inserted by section 52 of the Solicitors (Amendment) Act 1994] of the Solicitors Act 1954 came into operation for the profession of solicitors in England and Wales.

PC applications will still need to be successful, and renewed annually. An equivalent SI to cover the members of the Law Society of Northern Ireland has also been enacted on the same bilateral basis.

With the Law Society of Scotland – a separate jurisdiction within Britain, but with a mix of civil and common law and now outside the EU – there is a different agreement in place on the basis of mutual examination arrangements.

The mutual recognition and reciprocity arrangements between the barristers’ profession in the UK and Ireland is unclear and unknown. As matters stand, the former have no EU professional practice rights in Ireland, unless as ‘frontier’ workers whose rights have been preserved by the EU/UK Withdrawal Agreement.

Leading lawyers from Ireland, the UK, France and Belgium (in an informal network called the ‘European Circuit’) presented their views on cross-border legal practice in post-Brexit Europe in an online conference on 28 January 2021.

Former Bar Council chair Paul McGarry SC explained some of the statutory and regulatory changes in the regime now operating here since 1 January and noted that barristers and solicitors now have a common regulator, the Legal Services Regulatory Authority (following the Legal Services Regulation Act 2015).

Hugh Mercer QC maintained that the Withdrawal Agreement offers certain UK lawyers the right to practise in the EU if qualifying as vouched ‘frontier workers’ (article 26), and may have other practice rights where there is an inter-state bilateral agreement.

Equally, lawyers from the EU can also so qualify to practise in the UK, but cannot then describe themselves as solicitor or barrister, cannot appear in court, and cannot engage in conveyancing; nor must they register with the law society or the bar unless they are partners in a UK firm or chambers.

Such EU lawyers must, however, be “under the supervision” of a licensed UK lawyer who will then be liable to the consumer who receives that EU lawyer’s professional services. The reason for this, Mr Mercer explained, is to ensure the quality of the profession and the safety of the consumer.

The panel accepted that the UK withdrawal from the EU does now complicate issues beyond professional practice rights, such as first seisin of jurisdiction, where there may be parallel proceedings about the same dispute issued in one or more of the courts of the 27 EU states and also in the UK courts.

This creates controversy about how service of proceedings is effective to secure jurisdiction priority, with subrogation and lis pendens consequences, as well as comity of nations’ principles.

Freedom of movement

In many countries, a license to practise (for example, to either a non-national, where nationality is a decisive condition to any application’s success, or to a lawyer trained in some country’s laws but not those of the issuing country) will depend on various different factors irrespective of whether the applicant is from an EU member state. This was made clear during the ‘European Circuit’ webinar.

Prominent Paris lawyer Louis Buchman said that all lawyers can seek registration in France as a ‘foreign legal consultant’ if there is a bilateral agreement between France and the state of the applicant lawyer. But if registered, such a lawyer cannot appear and advocate in a French court, although there are no such role limits in arbitration hearings.

Peter Callans, president of one of the multiple Belgian bars, mentioned that Brussels is packed with lawyers from all over the world and so its local bar operates a ‘tableau’ tiered system. Those on its List A, who must be nationals of one of the 27 EU states, are subject to the local regulatory laws and at the moment will see no changes to their practice license before 2022.

Those on List B are from the USA and other non-EU states and have no right to appear or advocate in the local courts and enjoy no lawyer professional privilege rights, but may engage in transactional work and arbitrations.

For those qualified in EU states, admission to practise anywhere within the EU is governed by EU statutory and case law as outlined already above. However, again, admission is also a matter for domestic laws and for bilateral agreement between international bars.

In Ireland, the Law Society website has helpful guidelines and sets out the requirements and conditions. These have the force of law by SI 35/2010, which shows how much possible arrangements require the interplay of national competent authorities to conclude bilateral agreements to enable cross-border practice, irrespective of membership of the EU.

Currently, there are only eight categories of qualified lawyers who are eligible to apply here for the issue by the Law Society of certificates of eligibility, and only such qualified lawyers are eligible to sit the Law Society conversion test, called the Qualified Lawyers Transfer Test (QLTT).

They must then pass it and register to qualify as solicitors in Ireland. These tests happen in Dublin twice a year. Applications must be by post, not by email. The eight include Scotland, some US states (New York and Pennsylvania with restrictions, and California), one Australian province (New South Wales, though under Australian reciprocal rules this now extends to all Australian jurisdictions), New Zealand, all EFTA lawyers, and all those from the 27 EU member states.

If qualified and eligible to apply, even then the application (which can be downloaded from the Law Society website) and its vouchers are subject to a review by the Education Committee of the Law Society.

Solicitors from England and Wales and Northern Ireland are exempt from having to pass the QLTT; but must successfully apply for a certificate of admission.

Such freedom to apply and be registered is costly. The application alone requires a processing fee of €350 to be paid. The registration fee for those less than three years qualified on 1 January 2020, including all additional levies and voluntary contributions, comes to €2,300. It’s more once the applicant has passed the first three years.

In conformity with the Establishment Directive’s basic standard (article 6), the registration applicant must meet the local regulatory standards, as must all solicitors with PCs practising in Ireland, and also submit a declaration of compliance with standards proof as part of the application.

All other lawyers outside these categories who seek to practise under the annual license of the Law Society must start from scratch and undergo the full standard training process to become an admitted solicitor (such as the FE-1 and two exams, and the traineeship).

The term ‘lawyer’ is generic. Most local laws and regulations apply merely to those lawyers seeking registration. This is not mandatory for legal consultants or academic lawyers.

As article 6 of the Establishment Directive makes clear, a ‘foreign’ or ‘immigrant’ or other titled lawyer “shall be subject to the same rules of professional conduct as lawyers practising under the relevant professional title of the host member state in respect of all activities he pursues in its territory”.

Read and print a PDF of this article here.

Duncan Grehan
Duncan Grehan is a solicitor and member of the Law Society’s EU and International Affairs Committee