Impact of Brexit on the internal market for legal services: the case for continuing cooperation

In the following months, the legal profession has begun to look at the legal consequences of the UK’s proposed withdrawal from the EU and what this means for different sectors, including its own. Professional services, including legal services, are important to the UK economy and a key part of the EU economy as a whole, with a net trade of over £4 billion with the EU in 2013.

The Law Society of England and Wales first set up an office in Brussels back in 1990. It subsequently joined together with the Law Society of Scotland and Law Society of Northern Ireland to create the Joint Brussels Office, which operates today.

One of the office’s key portfolios has always been the EU-specific framework for cross-border provision of legal services, which has greatly supported the cross-border provision of legal services within the EU/EEA (European Economic Area) and Switzerland. In particular:

The Lawyers’ Services and Lawyers’ Establishment Directives allow lawyers to provide services on a temporary or permanent basis using their home title, practise host Member State law, work for and employ local lawyers, regulate the provisions on codes of conduct, hold professional indemnity insurance, represent clients in the host State courts or have joint practices. The Establishment Directive also allows EU lawyers to re-qualify without equivalence examination after three years of regular and effective practice of host state law, including EU law.

The Professional Qualifications Directive allows the recognition of legal qualifications (among others) through assessment and, if necessary, compensation measures such as additional tests or supervised practice. Following the CJEU judgment in Morgenbesser and review of the Directive, it now also allows the recognition of professional traineeships abroad.

Maintaining the mutual ability for UK nationals to provide legal services through cooperation and collaboration with European colleagues is something we would like to see continue, however the other aspects of the withdrawal negotiations unfold.

The Law Society of England and Wales will be aiming to ensure that the Brexit negotiations allow the existing legal services arrangements to continue or at least something equivalent to them. It is also keen to emphasise that the Law Society of England and Wales is committed to remaining an open market for legal services and will continue to welcome lawyers and law firms from across Europe, who wish to practise in the jurisdiction.

The Law Society of Scotland has also raised continued professional recognition and practice rights, as well as respect for legal professional privilege as it applies to Scottish solicitors within the EU, as key issues of concern to its members. Whatever the outcome of the government negotiations, the Law Society of Scotland will continue to maintain positive links with colleagues in EU bar associations, seek clarity in relation to admission and continued practice rights and support its members through the transitional process.

Without a specific agreement on the cross-border provision of legal services, the UK might fall back on the General Agreement on Trade in Services (GATS) commitments which stem from WTO membership.

One of the most important differences between the WTO regime and the Lawyers Directives is the practice areas in which foreign lawyers are allowed to provide services. While the Lawyers Directives allow EU/EEA/Swiss lawyers to practise host Member State law (including EU law), it is not possible under the current GATS schedule for commitments of the EU, which is limited to ‘legal advice in home country law and public international law (excluding EC law).’ It is true, however, that individual Member States are free to grant higher levels of access to foreign lawyers on a unilateral basis and many Member States (including the UK) have done so.

Furthermore, provisions concerning requalification or integration in the host State profession are not included in the GATS schedule although it is possible for individual Member States to enact their own rules in that area. Indeed, there exist some bilateral mutual recognition agreements covering legal services, such as France-Quebec or American Bar Association-Brussels Bars.

The EU framework has not simply ensured the basic right to provide, and indeed receive, legal advice, it has also ensured representation in other Member States, including rights of audience. One key aspect is the protection of lawyer-client communications as the framework safeguards Legal Professional Privilege (LPP) for clients of all EU/EEA/Swiss-qualified lawyers. LPP is important to all of us because it is important to our clients: it is vital that none of our clients lose this protection, wherever legal advice stems from our is provided within Europe - and the UK will certainly still be part of Europe, even if not the EU.

The Law Society of Northern Ireland is in a unique position following the referendum as the only region of the UK to have a land border with another EU Member State, the Republic of Ireland (ROI). The Society is keen to ensure that cross-border practice in relation to UK and EU law is protected and an open market promoted as the exit negotiations begin. In particular, the welcome commitment to preserve the Free Travel Area with the ROI in the wake of Brexit raises questions around how precisely this will operate after exiting the EU