The Law Society of Ireland has conducted an in-depth review of the regulatory framework for issuing practising certificates to lawyers based outside of the jurisdiction.
Background
The Law Society's long-standing position has been that the Society's practising certificate does not permit practice outside Ireland. The Society had previously determined that it was necessary to emphasise that practising solicitors must have a physical presence in Ireland in order to practise in Ireland.
The Society facilitated Irish qualified solicitors outside Ireland in seeking to register or maintain registration as a Registered European Lawyer (REL) in another EU Member State or as a lawyer with a foreign bar. This was done by issuing practising certificates accompanied by a letter stating that the solicitor was not entitled to use the practising certificate in Ireland unless they had appropriate professional indemnity insurance (PII) in place in accordance with the Society's regulations. This was because they would need to be established in Ireland and have PII in accordance with the Society's regulations in order to practise.
Following an in-depth review conducted by the Society a number of issues have been addressed, which will bring clarity and certainty to these matters.
Why was such review necessary?
The purpose of the review was both to realign the regulatory framework in the light of Brexit and to ensure that the framework is legally robust. This realignment, whilst triggered by Brexit, has also clarified Irish domestic legal considerations and the overlapping EU and international jurisdictional base.
Conclusions of review
Practising certificates – Solicitors outside the jurisdiction
The review confirmed the Society's view that, under the Solicitors Acts 1954 to 2015 and the regulations implementing those statutes, a practising certificate only entitles a solicitor to practise in Ireland from an establishment in Ireland. The review also confirmed that a practising certificate can only be issued to a solicitor on that basis.
Irish solicitors seeking to register as RELs in other EU Member States
The review examined the relevant EU legislative framework for the free movement of lawyers, particularly the Establishment Directive (Directive 98/5/EC) and the CJEU case of Eirinaios v Athinon. The review concluded that a lawyer seeking to register under the Establishment Directive as an REL in another EU Member State can only be required to produce the registration certificate attesting to their qualification as a lawyer from the home Member State for the purposes of registration in the host Member State.
Therefore, an Irish qualified solicitor seeking to register as an REL in another EU Member State or seeking to maintain their registration does not require a practising certificate. This is because a certificate attesting to their registration/enrolment as a solicitor will suffice for the purposes of the Establishment Directive.
Jurisdictional limit on practising certificates
The practice of issuing practising certificates to solicitors outside the jurisdiction may create the erroneous impression that the Society permits practice pursuant to the Irish practising certificate outside Ireland. It is clear that no such practice is permitted and, by adopting this approach, the Society will be making clear that such practice is not permitted.
Impact on identified categories of solicitors
Irish qualified solicitors based in England and Wales seeking a practising certificate
Irish qualified solicitors who are based in England and Wales and are seeking a practising certificate from the Society will not be entitled to a practising certificate. This will be the case whether they attempt to maintain certain practice rights in the EU post-Brexit or otherwise. Such solicitors will not be issued with a practising certificate by the Society unless they can demonstrate in the course of their applications that they practise (or intend to practise) in Ireland from a physical establishment in Ireland. Moreover, they must comply with all other relevant legal requirements, including having appropriate PII in place. Such solicitors do not need an Irish practising certificate to practise in their jurisdiction of establishment (England and Wales).
Irish qualified solicitors seeking to register as RELs in another EU Member State
Irish qualified solicitors who wish to practise as an REL in another EU Member State will be issued with alternative certification attesting to their registration/enrolment as a solicitor instead of a practising certificate. Evidence of registration/enrolment is all that is required in order to register as an REL under the Establishment Directive. There is a clear EU regulatory framework under the Establishment Directive. It is clearly set out in Eirinaios that only evidence of registration as a professional in the home Member State is required to register as an REL.
In that regard, the Society proposes to communicate with the relevant authorities to outline the Society's approach and explain the rationale for the Society's approach.
The above approach should not have any impact on the ability of Irish qualified solicitors who wish to register or to maintain their registration as an REL with a relevant bar in an EU Member State.
Irish qualified solicitors seeking to register with a foreign bar
Irish qualified solicitors who wish to register or maintain their registration with a foreign bar will be provided with a certificate attesting to their registration/enrolment as a solicitor instead of a practising certificate. Evidence of registration/enrolment as a solicitor should be sufficient for registration in that jurisdiction. The question of regulation by the Society does not arise as practice in those jurisdictions is regulated by local law.
In that regard, the Society proposes to communicate with the relevant authorities to outline the Society's approach and explain the rationale for the Society's approach.
The above approach should not have any impact on the ability of Irish qualified solicitors who wish to register or to maintain their registration as a foreign lawyer with a relevant bar.
Northern Ireland
The position in respect of solicitors qualified and practising in both Northern Ireland and Ireland is unchanged.
Irish qualified solicitors employed by Irish firms in offices overseas
Where a solicitor is employed by an Irish firm but is exclusively based in an overseas office of that firm, it is not necessary for that solicitor to obtain a practising certificate. They are based outside the jurisdiction and are practising outside the jurisdiction.
This category of solicitors may apply for a practising certificate from the Society in the event that they practise (or are intending to practise) at least partly in Ireland from an establishment in Ireland and otherwise meet the relevant requirements to be granted a practising certificate. Such applications may be made from the relevant address in Ireland.
Policies adopted
The Society has adopted the following policies:
- Only solicitors who are practising (or intending to practise) in Ireland from an establishment in Ireland will be provided with practising certificates. They must have appropriate PII in place in accordance with the PII Regulations and an establishment for the practice. Practising certificates will no longer be issued to solicitors who are practising other than from an establishment in Ireland.
- Irish qualified solicitors who wish to practise as an REL in another Member State will not be issued with practising certificates. They will be issued with alternative certification attesting to their registration/enrolment as a solicitor.
- Irish qualified solicitors who wish to register with a foreign bar as a lawyer will not be issued with practising certificates. They will be issued with alternative certification attesting to their registration/enrolment as a solicitor.
Further information