Jonathan Goldsmith

Jonathan Goldsmith

UK lawyers are among those taking what measures they can to safeguard their EU rights post-Brexit, by taking up other EU nationalities or qualifications. Ireland has been the largest recipient of claims from UK lawyers. But what exactly does an Irish qualification protect in these circumstances? 

The Law Society Gazette reported in December on the latest figures regarding solicitors seeking Irish enrolment, following an article in the Gazette of the Law Society of Ireland.

The Irish article was written more by way of reassurance to Irish solicitors that the British were not coming to take over their jobs:

‘We believe it is primarily EU competition and trade law practitioners in these firms who have undertaken the administrative process of entering their names on the Roll of Solicitors in Ireland. Their motivation is to maximise their status as EU law practitioners when, in the future, Britain will no longer be a member state. Their future-status concerns relate to such issues as rights of audience in the EU courts and, in particular, the entitlement of their clients to legal privilege in EU investigations.’

In other words, the remarkable rush to Ireland (1,317 solicitors in 2016 and 2017) has taken place not in order to preserve EU-wide practice rights generally, such as the right to establish and offer services in other Member States, but chiefly to preserve rights before the Court of Justice of the European Union (CJEU), and the legal privilege of clients in EU investigations.

I will consider CJEU audience rights and EU privilege separately.

Regarding audience, the right to represent a client before the CJEU operates on a different basis to that of EU practice rights generally. Article 19 of the statute of the CJEU states that ‘Only a lawyer authorised to practise before a court of a Member State or of another State which is a party to the Agreement on the European Economic Area may represent or assist a party before the Court.’

Nationality is not a criterion here, and so it does not matter if the lawyer is an EU or EEA citizen in order to have the right of audience – the lawyer must only have the authority to practise before the court of one of those states.

This is in contrast to more general EU rights of practice, which require EU citizenship because they are part of the four freedoms. These rights include the right to establish permanently in another Member State under one’s home title of solicitor, or to offer temporary services across EU borders as a solicitor. An Irish title would not be enough for this – the solicitor is also required to have EU citizenship (which is why US attorneys requalified as English solicitors do not have these rights).

By way of example, an English solicitor who is only a UK citizen will be able (before Brexit) to register easily as an Irish solicitor, and then continue to represent a client before the CJEU after Brexit, whereas that same English solicitor, who has the right now under the terms of the lawyers’ directives to represent a client before any of the national courts of the Member States of the EU, will likely lose those national rights of audience after Brexit.

Regarding privilege, the most recent decision is the Akzo Nobel case (Case C‑550/07 P), which confirmed the seminal decision in this area, the AM & S case (Case 155/79).

AM & S laid down two conditions regarding the availability of privilege at EU level for communications with lawyers in EU investigations. The second of those conditions states that the protection afforded by Community law ‘to written communications between lawyer and client must apply without distinction to any lawyer entitled to practise his profession in one of the Member States’.

Again, the same test applies as with rights of audience before the CJEU: the English solicitor after Brexit must be entitled to practise in one of the Member States.

Interestingly, the prime minister’s speech opened up the possibility of the UK continuing to be subject to the CJEU in a range of areas post-Brexit, data protection being one of them. The question then arises as to whether UK lawyers will continue to have the right to represent their UK clients in such cases before the CJEU, whether or not those lawyers have dual qualifications. It would seem strange to exclude them.

The EU’s draft negotiating guidelines on a future trade agreement (FTA), published last week, hold out some hope for legal services to be covered in the final deal, since ‘The FTA should include ambitious provisions on movement of natural persons as well as a framework for the recognition of professional qualifications.’

If so, it seems that the question of future rights of audience, and other practice rights, are still to play for.