Brexit and lawyers' practice rights - an overview

At the time of writing it is unclear what will happen but the details of these changes will depend on whether:

• the EU and the UK approve the draft withdrawal agreement and, consequently, whether there will be a transition period; or
• the UK will leave without an agreement (no deal scenario).

Moreover, the situation of lawyers on both sides of the Channel may further change if the EU and the UK agree on a future partnership agreement.

Rights under the draft withdrawal agreement

If the draft withdrawal agreement is approved, there will be a transition period until 31 December 2020 during which all current legislation concerning practice rights will apply to the UK and EU lawyers.

This means that lawyers will still be able to requalify into the host legal profession via two existing routes:

• Article 10 of the Lawyers’ Establishment Directive which allows a lawyer with three years of continuous practice of domestic law including EU law to requalify without an exam;
• Title III of the Mutual Recognition of Professional Qualifications (MRPQ) directive which allows a lawyer to requalify by passing an exam subject to exemptions and / or compensation measures such as an aptitude test or an adaptation period.

Importantly, the agreement sets out conditions for recognition of qualifications obtained before the end of the transition period and to the ongoing recognition procedures (Articles 27 and 28 respectively). Once the recognition procedure has started before the end of the transition period, one’s qualifications will be recognised under the withdrawal agreement.

It is yet unclear how that procedure will apply to requalification under Article 10 with regard to those lawyers whose three-year practice of domestic law will not have been completed before the end of the transition period.

During the transition period UK lawyers will continue to have rights of audience in the EU courts and their advice to clients will continue to attract Legal Professional Privilege at EU level.

After the transition period has ended, the rights of audience of UK lawyers will continue to apply in cases of preliminary rulings made before the end of the transition period, in cases involving citizens’ rights brought within eight years after the end of the transition period; and in cases arising under Part Four (transition) brought within four years after the end of the transition period.

EU lawyers in the UK

If the UK leaves the EU without an agreement, the current legislation and regulations will have to change in order to comply with the provisions of the World Trade Organisation (WTO), namely the principle of non-discrimination (also referred to as most favoured nation, MFN).

The current system for the registration of Registered European Lawyers (RELs) will cease to exist and those RELs already registered with the SRA will be given a unilateral transition period until 31 December 2020 during which they can continue to practise as an REL without any changes. The SRA will however accept no new registrations after the withdrawal date and during the unilateral transition period.

After that, RELs will have several options.

1. They can continue to practise in England and Wales under their home country title according to the regulations that apply to lawyers from other third countries. This means that they will be able to work in all types of firms but cannot perform reserved legal activities. They will be able to advise on all types of law – international public law, EU law, home country law and English and Welsh law save for reserved legal activities, as well as any other law in which they are qualified.
2. In some cases, EU lawyers will have to register as Registered Foreign Lawyers (RFLs) (see SRA guide). This applies to those lawyers who intend to be a manager, member or interest holder of an SRA-authorised body, irrespective of their state of establishment.
3. If an EU lawyer wants to work in reserved areas, they will need to requalify as a solicitor through the Qualified Lawyers Transfer Scheme (QLTS). At the moment, EU lawyers are able to apply for broad exemptions. Without a deal, this possibility will be removed in order to comply with the WTO rules (see the SRA consultation and The Law Society’s response).

The advice given by EU lawyers will continue to attract Legal Professional Privilege (LPP), subject to relevant case law, in particular for in-house counsels.

UK lawyers in the EU

In the event of no deal, UK lawyers practising in an EU member state will become third country lawyers and their practice rights will be determined by a relevant regulatory framework for third country lawyers (if any). This means that the scope of the permitted activities, including types of law on which a third country lawyer is permitted to advise, will be narrower. The Law Society has carried out extensive mapping of each EEA jurisdiction and this resource is available on request from the International Department.

Unless they requalify into one of the EU legal professions, UK lawyers’ advice will not attract LPP at EU level (i.e. in EU-level investigations and cases). This is because it is honoured only in case of an EEA-qualified lawyer in private practice. At national level, the rules concerning LPP will continue to be regulated by national laws.

UK lawyers will also lose their rights of audience in the EU courts as Art19 of the Statute of the CJEU stipulates that rights of audience apply only to those lawyers who are authorised to practise in an EEA member state, the case-law of the CJEU having restricted this further to EEA lawyers in private practice.

So far, many lawyers who have practised in the EU requalified into the local profession of their country of establishment using the Article 10 route. Many have also requalified as Irish solicitors in order to keep an EU title, rights of audience in front of CJEU and to make sure their communications with clients attract Legal Professional Privilege (LPP).

In its no deal Brexit advice, the Law Society lists a series of suggestions that solicitors and their firms should take into consideration in their planning.

A longer version of this article appeared first in the Legal Compliance Bulletin (March 2019). The shorter version (as above) was then published in the Risk and Compliance (April 2019) newsletter.