Jonathan Smithers: The EU and the Legal Sector

Earlier this month I was in Vienna for the European Presidents Conference. This gathering of European bar presidents dates back to the 1950s and was for a long time the only forum where Eastern and Western European lawyers could meet. Those interested in law, policy and politics will have been following the Brexit debate and will have seen European Council President Donald Tusk’s letter which was published on 2 February. We expect that a referendum date will therefore be set in the not-too-distant future.

In light of all of this, it seems the ideal time and place to reflect on the UK’s relationship with the EU and in particular what this means for the UK lawyers who are currently also EU citizens, and UK law firms which are also EU entities. As president of the Law Society of England and Wales I speak from the UK perspective but the mutual recognition and reciprocal nature of the EU framework means that for every change to the members of this Society, and those of the Law Societies of Scotland and Northern Ireland, there is a flipside which would also mean changes for our European colleagues.

Any change to the existing relationship would have significance for lawyers as legal services providers and for the legal rules and rights which many members of the Law Society deal with on a daily basis. This was the topic of a bespoke report on The EU and the Legal Sector which we published last October. The report looked at the UK’s relationship with the rest of the EU and how a change in this relationship might affect both the business of law and the substantive law applied in particular areas of practice. We also looked at alternative models for engagement such as “being Norway” or “being Switzerland” and what those would mean.

The EU’s Internal Market is built on the principle of freedom of movement. Because of the unique nature of legal services, the EU has drawn up a specific set of lawyers Directives, aimed at facilitating the free movement of lawyers and legal services while safeguarding the interests of clients. A number of members have identified these Directives and their forerunners as a key enabling factor in the expansion of UK firms throughout the Internal Market. This in turn, created a broad platform for expansion at a global level.

But the system is not just about law firms; it also provides opportunities for individual lawyers to work in other EU countries. Reciprocity means that our EU counterparts can also come here. In particular, City firms report the recruitment opportunities this provides in allowing them to attract talent, both pre- and postqualification. This can help bolster their cross-border legal services offering. Free movement of services also allows clients based in one EU Member State to instruct lawyers in another so UK lawyers can provide advice to clients from Amsterdam to Zagreb.

Of course a number of our members have a more domestic focus and the legal services Directives and rights pertaining to the principle of free movement of services and workers do not have such an immediate effect on their professional lives. Nonetheless, EU law may still be highly relevant in terms of advising clients. Our report also looks at how the EU legal framework interacts with our own legal system. Lawyers who are not providing cross-border services themselves may well act for clients who are themselves looking to trade goods or provide services across EU borders, so Internal Market rules come into play once more.

Furthermore, in specific areas of law - financial services regulation, intellectual property, family, and environment, to name but a few – EU law has a direct effect on the rules and regulations lawyers are dealing with. The EU legal framework has been built around considerations of access to justice in both civil and criminal cases with a cross-border dimension. These are broken down for examination in the report which provides an overview and analysis of key mechanisms and pieces of legislation which give our EU legal system its particular characteristics.

I have been interested to see from the report the ways in which a change in the existing relationship might affect fellow practitioners in areas with which I am less familiar. As a UK citizen, and therefore an EU citizen, I have also learned a little more about what the UK’s relationship means for me as an individual.

I very much hope that you enjoy reading the report.