I met the chief executives of the European Bar Associations (CEEBA) in Prague last week. The organisation has been in existence for 50 years this year. It has lost some of its more colourful traditions – such as the collective singing of an organisational song – but still clings to its presidential chain of office. Most importantly, it retains its ability to yield useful information in exotic surroundings: this time surrounded by the wonderful architecture of Prague that never fails to stun (even though Charles Bridge was horribly crowded and to be avoided).On this occasion, we learned that Estonian lawyers vote in elections, file documents with the courts and liaise with government departments through a single citizen’s ID card, which is programmed to allow them to undertake different functions in accordance with their status. (Don’t worry, all you anti-ID card users: there was opposition to such a scheme from the UK.) We also learned that the Swedish Bar is on the verge of liberalising its rules for admission of Swedish lawyers: a reduction of the years of experience required from five years to three, to make sure that Swedish lawyers can qualify as quickly in their home state as EU lawyers coming into Sweden under the EU directives can qualify as Swedish lawyers. And we heard details of the court case brought by the Law Society of Ireland against the Law Society of England and Wales for scrapping the automatic recognition of Irish solicitors for qualification purposes in England and Wales.
But the most interesting development for me came from Finland. As you may know, Finland is the most liberal country on earth in relation to the provision of legal services. Anyone can do anything. Lawyers and a bar exist, of course, but they have no reserved activities, not even the representation of clients before the highest court. Competition authorities and deregulators love to point to Finland and ask why we can’t all become Finnish in our practices. But Finland appears to be going in the opposite direction to everyone else. They are regulating parts which were unregulated before, as a result of the experience of lack of regulation.
In particular, the Finnish Ministry of Justice is about to submit a bill to parliament to cover those who provide legal assistance in court hearings without being lawyers. The government is acting on the proposals of a committee it established two years ago to look into the issue. The committee has now proposed, among other things, that non-lawyers appearing in court should have a licence granted by an independent state body. However, these licensees would be regulated by the bar and its Code of Conduct, including the ability of the bar to discipline the licensees. If the bar recommends that someone should lose their licence, then the state will act accordingly. A separate part of the bar’s disciplinary board will be created to deal with this new group of licensees.
So, the first point is that the Finnish government is extending regulation in the legal services sector, because they have found that liberalisation does not bring unmixed blessings, particularly in the area of court representation. But, secondly, the Finnish Bar believes that it will be doing something unique in Europe in regulating a group of people who will effectively be para-legals.
This second point deserves further consideration. In the wider world, I know only about the Law Society of Upper Canada which already regulates, licenses and disciplines Ontario’s 41,000 lawyers and 2,700 licensed paralegals.
What is interesting about the second point is that the bar – unlike in the UK, where the professional organisations have been suspected of conflicts of interest and self-interested decision-making, to the extent that a super-regulator has been put above them – is viewed in some other countries as a repository of regulatory trust, able to regulate not just lawyers but others. If this trend were to widen and deepen – and two swallows do not make a summer - it would lead to a position where bars are seen as the regulatory gateways for providers of legal services, and not just for lawyers. I am not saying that European bars in general would welcome this idea, since it has not even been discussed. But it is a different model, which we may see spreading, and the consequences of which should be considered.
Jonathan Goldsmith is the secretary general of the Council of Bars and Law Societies of Europe (CCBE), which represents over 700,000 European lawyers through its member bars and law societies
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