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England and Wales as an open jurisdiction after Brexit

18 October 2019

The Law Society of England and Wales is the independent professional body that works globally to support and represent 180,000 solicitors, promoting the highest professional standards and the rule of law.

Summary

  • England and Wales is an open jurisdiction for foreign lawyers
  • The freedom for lawyers qualified in foreign jurisdictions to provide legal services and establish practices in the UK will not change after the UK exits the European Union, whether or not it leaves under a withdrawal agreement
  • As of October 2019, there are over 200 foreign law firms established in London; only a quarter of these are from European Union or European Free Trade Area jurisdictions
  • The UK government has taken the unilateral decision to grant registered European lawyers the benefits of the EU Lawyers Establishment Directive regime until 31 December 2020 in the event of a no deal, so current rights privileging EU lawyers above third-country practitioners will continue to apply until that date
  • Barring the six activities reserved to legal professions of England and Wales, you do not need to be a qualified solicitor to provide legal services and/or draft contracts under English law

England and Wales as a global legal centre

England and Wales is a global centre for the provision of legal services.

Today, the UK’s legal sector is the largest market in Europe – accounting for approximately one fifth of European fee income – while over half of the revenue of the largest 100 firms in the UK is generated by international law firms based in London.

For foreign law firms, the English and Welsh legal system is one of the world’s most supportive for business; it is a very open jurisdiction that allows virtually unrestricted access.

As a result, London alone is home to lawyers from nearly 100 jurisdictions and hosts over 200 foreign law firms, many of which have developed capabilities in both English law and the law of other jurisdictions.

They practise English law, EU law, public and private international law, and the law of their state/jurisdiction of origin to provide a local and global service for their clients.

Reserved areas of law in England and Wales

As is true in most jurisdictions, certain types of legal work in England and Wales are reserved to lawyers. There are six such areas:

  • the exercise of a right of audience
  • the conduct of litigation
  • reserved instrument activities (for example, for real estate transactions)
  • probate activities
  • notarial activities
  • the administration of oaths

You do not need to be a lawyer to provide other types of legal services.

There is also no restriction to represent parties in arbitration or any other form of alternative dispute resolution (ADR) in the UK.

Current access for foreign lawyers

The limited restrictions placed on foreign lawyers do not prevent them from practising the majority of unrestricted legal services in the following circumstances:

  • as a sole practitioner
  • as an assistant or consultant with a firm of foreign lawyers
  • in a partnership of foreign lawyers
  • employed by English and Welsh solicitors
  • in partnership with English and Welsh solicitors (but only if registered with the Solicitors Regulation Authority (SRA) as a registered foreign lawyer)
  • in employment as an in-house lawyer (for example, in the legal department of a commercial company)

Current access for European lawyers

Lawyers from EU/EFTA countries enjoy fewer restrictions than those from third countries, under the Lawyers’ Establishment Directive 1998 (98/5/EC).

Once they have registered as registered European lawyers (RELs) they can practise on a permanent basis under their home title, not only in their home state law, EU law, and international law, but also in English law, including in areas reserved to solicitors, with a few exceptions relating to litigation (to be done in conjunction with a local lawyer) as well as conveyancing and probate (subject to whether they come from an EU/EFTA state following the Latin notarial model).

For more information, read the SRA’s guidance for registered European lawyers.

Further, European lawyers can apply to be admitted to the profession after three years without having to pass the equivalence examination, if they can provide evidence of effective and regular practice of English law (including EU law) over this period.

Access for European lawyers under the proposed withdrawal agreement

If the UK were to leave the EU under the withdrawal agreement as it currently exists, the level of access for foreign and European lawyers would be protected until December 2020, by which time a future relationship and level of access should have been negotiated.

Access for European lawyers if the UK leaves without a deal

Even in the event of the UK leaving the EU without a deal, the benefits of the EU Lawyers Establishment Directive will still apply until December 2020.

Until then, EU lawyers will still be able to provide legal advice in home state law, international law, EU law, and English law based on the same rights and obligations that currently apply to RELs.

After that, EU lawyers would be subject to the same requirements and limitations as lawyers from third countries and they will be able to continue providing unreserved legal services. Should they be in partnership with solicitors, they will be able to register as registered foreign lawyers (RFLs) in accordance to the SRA’s RFL regime.

For more information, read the SRA’s guidance for registered foreign lawyers.

Options available to European lawyers

The following practice rights will remain available to EU lawyers until at least the end of December 2020:

  • EU lawyers can advise in the UK on host law, home law, international law and EU law including on a fly-in/fly-out (FIFO) basis
  • an EU lawyer who can provide evidence of effective and regular practice of English law over a three-year period, can become a solicitor without examination

The following practices and rights will remain available to European lawyers beyond December 2020, provided they have the right to work in the UK:

  • EU lawyers can advise on any aspect of English law that is not reserved
  • EU lawyers can be partners in UK law firms and share in the profits
  • EU lawyers’ (who are accredited by their local bar) advice will continue to be covered by legal professional privilege when practising in the UK
  • EU lawyers can practise:
    • as a sole practitioner
    • as an assistant or consultant with a firm of foreign lawyers
    • in a partnership of foreign lawyers
    • employed by English solicitors
    • in partnership with English solicitors (but only if registered with the Solicitors Regulation Authority as a registered foreign lawyer)
    • in employment as an in-house lawyer (for example, in the legal department of a commercial company)
     

England and Wales is, and will remain, a global legal centre open to practitioners from all jurisdictions; the UK’s impending exit from the European Union will not change this.

The Law Society recognises the contribution of EU and foreign lawyers to England and Wales’ status as a world leader in legal services provision, and will continue to highlight it to government, the domestic profession, and the wider population.

Resources

Law Society no-deal guidance on legal services

Solicitors Regulation Authority’s note for registered European lawyers

UK Delegation to the CCBE Q&A document for EU lawyers in the UK