What enables lawyers to practise across the EU without having to requalify?

I wrote last week that the international legal conference season is about to begin. And now it has, with the International Regulators’ conference in San Francisco on 6 and 7 August. I was invited as a speaker before a roomful of regulators, including our own Antony Townsend of the SRA, who was on the platform with me. The audience was overwhelmingly American, coming from every US state.

I gave my usual talk about how the EU system of lawyer regulation works, focusing on the free movement of lawyers through the lawyers’ directives and judgments of the European Court of Justice. It is a strange fact that European lawyers have greater freedom of movement in the EU across national borders into jurisdictions with different languages and legal systems, than American lawyers have in their own single country when crossing from one of their states into another, despite the basic unity of language and legal system (even if the content of laws differs from state to state).

I have given this kind of speech several times before to similar audiences, and so was not surprised by the outraged questions from my American colleagues about how it is possible that a lawyer from one jurisdiction can enter another without requalifying, and then proceed to practise whatever he or she wishes. I explained the background, and think it is worthwhile putting it down here in black and white for once and all.

The EU directives (temporary movement 77/249/EEC, establishment 98/5/EC, and re-qualification 89/48/EEC, which is soon to be replaced by the new Professional Qualifications Directive when finally passed) have been in collective existence for over 35 years. They allow EU lawyers the freedom to provide temporary services in another jurisdiction without registration; to establish themselves permanently in another jurisdiction without having to requalify or take any examination; and to requalify as a local lawyer easily in two different ways. In that time, there have been very few complaints about rogue lawyers or the directives themselves, and all parties – lawyers and bars, the European Commission and the latest study compiled by the European Commission into them (Evaluation of the Legal Framework for the Free Movement of Lawyers) – agree that the laws work well.

Fears of Portuguese corporate lawyers representing Finnish axe murderers, or Austrian medical negligence experts drawing up wills for British grandmothers, have just not materialised.

Why is that? First, the various patterns of cross-border movement need to be understood. Principally, lawyers follow their existing clients. The great majority of cross-border movement has been of this type, particularly in the field of commercial transactions. Large firms have opened offices around the EU offering services to large corporations. These firms are not interested in representing Finnish axe murderers or drawing up wills for British grandmothers. The second, lesser pattern, is witnessed in the various expatriate communities (British, German, or otherwise) on the sunny coasts of Spain and Portugal, where expatriate lawyers provide services to their own local retired communities. Then there are lawyers who live in border towns, like Sarreguemines or Saarbrücken, who may practise on both sides of the frontier. Finally, there is a tiny population of lawyers who marry people of other nationalities and go to live in their spouse’s country.

There is a further reason behind the absence so far of worrying malpractice, or misbehaviour towards consumers. Lawyers are bound by ethical codes not to undertake work of which they have no knowledge. If you don’t know the law of how to represent a Finnish axe murderer or draw up a will for a British grandmother, you don’t do it – that is how all proper legal systems work, even if they are based on the assumption that all lawyers can do everything.

I have noticed that market-opening often induces unrealised fears before it happens. This is true also of countries which do not allow the practice of foreign lawyers within their borders, because they think that local lawyers will lose all profitable work to foreigners. One helpful idea on these occasions is that those about to take the plunge should either conduct a controlled trial, or study in depth the jurisdictions where market-opening has worked without apparent problems.

We continue to learn much from the US legal profession, nowadays often in the field of technology. In return, I would like to gift them our lawyers’ directives as an American model of inter-state cross-border movement. It could become the most successful European export since Harry Potter or Mercedes cars. After that, we can devote attention to the next item on our wishlist, that of European lawyers themselves being able to practise easily as foreign legal consultants in all states of the US…

Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents about one million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs