Since we are now moving to the next phases of Brexit (the transitional agreement and the future relationship), the principal issues at stake for lawyers’ practice rights are becoming clearer.
For us, the transitional agreement presents few problems. The Brexiteers are unhappy with its colonial aspect, since, as presently laid out by the EU, the UK will need to comply with EU rules without any say over them. For lawyers, though, given the comprehensive free movement that the EU’s current regime provides, it is in our interests that the transitional agreement reflects as closely as possible the present position, to avoid sudden changes in firms’ arrangements.
Regarding the future trade agreement, there is much more to play for. It is worth going item by item through the various forms of cross-border practice, to understand how each might end up.
The most common form of cross-border practice is the temporary provision of services across borders. This is reflected in legal services in several ways: the legal advice crosses the border (by phone or e-mail, say, to your client in France); the lawyer crosses the border (when you go to Spain to see your client); or the client crosses the border (when your Dutch client comes to see you in the UK).
Much of this is impractical to regulate, and continues daily without check in many countries, even those which have the most severe anti-foreign lawyer regimes. I remember being in a country where foreign lawyers are completely barred from practice, and I met a lawyer from one of the large firms who was on his 22nd visit that year to provide temporary legal services.
There is no practical way of checking whether the person arriving in your country is coming to see a lawyer or a client, nor is it feasible to intercept all e-mails to check that legal advice is not crossing the border. So this will carry on regardless of what the future EU-UK trade agreement says. It would be a shame, though, if it did not become a recognised right, meaning that the practice continued under the radar because of the impossibility of enforcement.
The second popular form of cross-border practice is practice under home title. It occurs when a solicitor goes, say, to Germany, establishes there and continues to practise home law in Germany under the solicitor’s title (and not as a German lawyer). There was a hope that this right, which exists under the current directives, would be included in the withdrawal agreement, but it was not, and so it has to be negotiated in the future trade agreement.
However, the outlook is good. The EU 27 bars have already agreed a policy through their membership of the Council of Bars and Law Societies of Europe (CCBE), formulated before the Brexit vote in connection with the worldwide trade talks then ongoing.
Essentially, the CCBE policy permits what it calls ‘foreign legal practitioners’ (FLP) to practise under home title in the EU provided certain conditions are met, all of which are met by UK lawyers. The FLP must then register with the host bar and be subject also to host bar ethics. In addition, ‘The FLP may associate with host country lawyers and may be employed by host country lawyers, to the extent permitted to them, for the joint exercise of the profession.’
The EU has itself also made an offer in respect of this aspect of cross-border practice, in the context of the current Trade in Services Agreement (TiSA), presently stalled – see pages 46-51 of the EU offer. This right should be confirmed in the future trade talks.
Finally, the withdrawal agreement has already accepted that those solicitors who have gained the host state title will be able to continue such practice after Brexit in the host state.
So what is left once these common forms of practice are left out of the equation? The list includes:
- the practice of host law, including EU law, while practising under home state title, including the right to appear in host courts;
- the ability to requalify easily as a lawyer in another Member State without having to start from the beginning;
- the ease of current border crossing and recognition procedures.
There is a danger that, because of the short time available, the negotiators will never reach the necessary level of detail for each industry sector, including our own. That is why, as was done during the EU-US TTIP negotiations, my personal view is that the legal professions on both sides should attempt to come to a mutual agreement which can be easily endorsed by the negotiating parties. We have been part of the EU regime for over 40 years, and so we should be able to achieve far more than the minimum rights.