EU lawyers establishment directive

The Law Society of Scotland is currently preparing for implementation of the EU Lawyers Establishment Directive (98/5/EC).  This Directive has had a gestation period of about two decades, and it was finally passed by the Council of Ministers at the end of 1997, and published in the Official Journal at the beginning of 1998.  It has to be implemented by all EU Member States by March 2000.  The Lord Chancellor’s Department has so far taken the lead in respect of legislative measures necessary within the UK to implement the Directive; however the Scottish Parliament will have to implement the Directive in Scotland and a draft Scottish Order in Council is expected shortly.  The Directive has far-reaching consequences for the practice of Scottish solicitors in other EU Member States.  There are two principal provisions in the Directive - Articles 3 and 10.  Article 3 entitles lawyers qualified in one Member State to practise under their home title permanently in another EU Member State.  The practice permitted includes home law, European Community and international law, and most significantly, host law.  In other words, a Scottish solicitor practising in Paris or Milan will be able to practise French or Italian law respectively in those cities.

Article 10 entitles lawyers who have been practising for three years in another Member State (following registration) to integrate into the legal profession of the host state.

Article 3 – Registering with host Bars

A condition of the practice is that the solicitor must register with the host Bar within the jurisdiction where the lawyer is established, and the solicitor will be regulated by that Bar.  Registration with a host Bar is a common enough experience for solicitors practising abroad, although regulation – which will mean that solicitors will be bound by the same rules as host state lawyers – may be a new concept for many.  It will mean, in effect, that solicitors will be regulated by the Law Society of Scotland and also by the host Bar where they are established.  In some cases this may lead to a conflict of rules, which will have to be settled between the bars and the lawyers concerned.   It will also almost certainly lead to double discipline in certain cases.  The steps taken by the Society for implementation do not so much relate to the position of solicitors from Scotland practising in other Member States, as to the position of lawyers from other Member States practising in Scotland.  At present, the Society has a liberal regime for all foreign lawyers – whether from the EU or elsewhere – wishing to practise in this country.  There is no requirement for such lawyers to register with the Society; nor to be regulated by us.  This will change after implementation of the Directive in respect of EU lawyers; this regime will only apply to EU lawyers and not to lawyers from outside the EU.  For non-EU lawyers, such as Americans, the position will continue as now, and there will be no registration or regulation by the Society.

However, for lawyers who are qualified in EU Member States – and who are also EU nationals, since the Directive only applies to people who satisfy both conditions – there will be new requirements.  Such lawyers will need to register with a professional body in the UK, and then be regulated by that professional body.  The Directive makes clear that they must choose between registering with a Bar or a Law Society, and presumably the kind of practice which they wish to undertake will govern their choice.  The Society has been undertaking a review of its rules to ensure that they can be extended to cover EU lawyers as well.

There may be some difficult decisions to be made along the way.  For instance, for the purposes of setting up as a principal in private practice, should an EU lawyer who has been working for seven years in another Member State be treated as a brand new solicitor or as a solicitor with seven years’ experience?  The Council of Bars and Law Societies of the European Union (CCBE) is recommending that previous experience in other Member States should be counted in the host state, and the Society is likely to implement that recommendation.  The reason can be found in one of the key principles underlying the Directive, which is that migrant EU lawyers should be treated in the host country – so far as it is possible – in exactly the same way as host lawyers themselves.

Article 10 – Integration into the host state profession

At present, if a lawyer from one Member State wishes to acquire a lawyer’s title in another Member State then the candidate lawyer has almost always to take an aptitude test.

In the case of EU lawyers wishing to acquire the title of Scottish solicitor, that EU lawyer has to take the Qualified Lawyers Transfer Test.  However, the position is changed under the Directive for those EU lawyers who are established in another Member State for at least three years and who have been practising the law of that Member State.  For such lawyers, the host state title will be able to be acquired without the necessity to take a test.

Will lawyers take advantage of the Directive?

This is a big change in the route to becoming a Scottish solicitor, and is part of the overall compromise within the Directive which was agreed to by the Council of Ministers.  It is, however, not anticipated that this will lead to a rush of EU lawyers wishing to become solicitors.  It is not known exactly how many foreign lawyers there are in Scotland – because at present there is no system of registration – but it is not thought to be very many.  Of those, some will already have become solicitors and others will not be interested in becoming solicitors.  More importantly, the Directive presents many opportunities for Scottish solicitors to move abroad and broaden their experience of other legal systems; with increasing globalisation of legal practice, it is essential that Scottish solicitors take advantage of such opportunities in order to remain competitive in the global market.