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EU/EFTA lawyers in the UK: practice rights during and after the end of the transition period

Introduction

The UK left the EU on 31 January 2020. The guidance covers the provision of legal services:

  • during the transition period (which ends on 31 December 2020)
  • after the end of the transition period

As the negotiations on the EU-UK future partnership agreement (FPA) are still underway, this guidance does not aim to provide any insight on the future provision of legal services in the UK. As a comparison, it outlines the current position of third-country lawyers in the UK.

This guidance outlines how the framework of legal services operates in the UK. Altogether, there are three jurisdictions in the UK and six representative bodies:

  • the Bar Council of England and Wales
  • the Law Society of England and Wales
  • the Faculty of Advocates (Scotland)
  • the Law Society of Scotland
  • the Bar Council of Northern Ireland
  • the Law Society of Northern Ireland

Overview of rights

Lawyers’ practice rights during the transition period

The rights of EU lawyers in the UK are set out in the Withdrawal Agreement (WA). There are separate arrangements for:

In addition, Irish and UK citizens enjoy rights of residence and practice under Common Travel Area.

The WA states that all EU citizens arriving in the host state during the transition period (until 31 December 2020) have the same rights as EU citizens who arrived before the UK's withdrawal.

This means that the EU27 lawyers continue to enjoy their full rights under the EU acquis until 31 December 2020:

  • the right to provide legal services under home state title throughout the territory of the UK outside the home state under the Lawyers’ Services Directive (Directive 77/249/EEC)
  • the right to establish an undertaking providing legal services under home state title in the territory of any other member state under the Lawyers’ Establishment Directive (Directive 98/5/EC)
  • the right to acquire the professional title of another member state and to practice under the same conditions as that state’s nationals, on the basis of mutual recognition of academic and vocational qualifications under the Mutual Recognition of Professional Qualifications (MRPQ) Directive (Directive 2005/36/EC). In conjunction with the Lawyers’ Establishment Directive, this includes the right to acquire the host state title by integration in the local profession following three years’ establishment in that state under the home state title

In addition, in relation to lawyers, Article 27 (recognised professional qualifications) of the WA sets out the following:

“1. The recognition, before the end of the transition period, of professional qualifications, as defined in point (b) of Article 3(1) of Directive 2005/36/EC of the European Parliament and of the Council (9), of Union citizens or United Kingdom nationals, and their family members, by their host State or their State of work shall maintain its effects in the respective State, including the right to pursue their profession under the same conditions as its nationals, where such recognition was made in accordance with any of the following provisions:

a) Title III of Directive 2005/36/EC in respect of the recognition of professional qualifications in the context of the exercise of the freedom of establishment, whether such recognition fell under the general system for the recognition of evidence of training, the system for the recognition of professional experience or the system for the recognition on the basis of coordination of minimum training conditions;

(b) Article 10(1) and (3) of Directive 98/5/EC of the European Parliament and of the Council (10) in respect of gaining admission to the profession of lawyer in the host State or State of work;”

Article 28 (ongoing procedures on the recognition of professional qualifications) states:

“Article 4, Article 4d in respect of recognitions of professional qualifications for establishment purposes, Article 4f and Title III of Directive 2005/36/EC, Article 10(1), (3) and (4) of Directive 98/5/EC, Article 14 of Directive 2006/43/EC and Directive 74/556/EEC shall apply in respect of the examination by a competent authority of the host State or State of work of any application for the recognition of professional qualifications introduced before the end of the transition period by Union citizens or United Kingdom nationals and in respect of the decision on any such application. Articles 4a, 4b and 4e of Directive 2005/36/EC shall also apply to the extent relevant for the completion of the procedures for the recognitions of professional qualifications for establishment purposes under Article 4d of that Directive.”

The SCRA makes it possible for Swiss citizens and their family members to apply for a residence status through the EU Settlement Scheme.

Swiss lawyers in the UK will:

  • continue to have their professional qualifications recognised where they obtained a recognition decision before the end of the transition period
  • have a four-year grace period from the end of the transition period to start the application process for a recognition decision, provided they have obtained a qualification or were in the process of obtaining a qualification before the end of the transition period
  • continue to benefit from the current EU-Swiss 90 days’ service provision rules for at least five years following the end of the transition period for written contracts which have been concluded and started before the end of the transition period

Under the UKESA, Norwegian, Icelandic and Liechtenstein lawyers will:

  • continue to reside in the UK if they had been lawfully resident before the end of the transition period. EEA EFTA nationals who have been living in the UK continuously and lawfully for five years at the end of the implementation period will have the right to reside permanently in the UK
  • be able to apply for permanent residence under EU Settlement Scheme
  • continue to have their professional qualifications recognised, where they obtained or applied for a recognition decision before the end of the transition period. The explainer states that this covers “the European Professional Card, qualifications recognised under the Professional Qualifications directive for the purpose of establishment (but not for the temporary and occasional provision of services), lawyers practising under host state title...”
  • continue to have the right to pursue economic activity

The Common Travel Area preserves the residency and other rights of Irish and UK citizens regardless of the FPA outcome. These are bound under the Northern Ireland Protocol of the WA.

Future regime on recognition of professional qualification

Between 25 August and 23 October, the UK government consulted on its future system of recognition of professional qualification of foreign-qualified professionals (including lawyers).

While the existing regulations and guidance in this paper still apply, this is an area still under review and development.

We advise any foreign-qualified practitioner to check the latest regulatory position on recognition of qualifications and to take it into account in their plans and expectations about acquiring practice rights in any of the three UK jurisdictions.

Q&As

The Withdrawal Agreement outlines that automatic requalification processes ongoing during the transition period in respect of the persons covered will be grandfathered and completed under Union law.

This means that all requalification requests for European lawyers submitted within the transition period will remain as outlined below.

England and Wales

The Law Society of England and Wales

EEA and Swiss qualified lawyers established in England and Wales under the Establishment Directive can requalify as solicitors following two routes until the end of the transition period:

  • after three years of effective and regular practice of local law, including EU law, as a registered European lawyer (REL) under Article 10(1) and (3) of the Establishment Directive
  • through the Qualified Lawyers Transfer Scheme (QLTS) overseen by the Solicitors Regulation Authority (SRA) under the EU MRPQ Directive. EEA or Swiss nationals qualified in the EEA or Switzerland may apply for exemptions from part of the aptitude test

REL status can be obtained by registering with the SRA. New REL registrations will be accepted until the end of the transition period (31 December 2020). However:

  • registration and practise as an REL will no longer be possible after 31 December 2020. All those registered as RELs at that date will automatically become registered foreign lawyers (RFLs) unless they request otherwise to the SRA
  • RELs in England and Wales will be contacted by the SRA before the end of 2020
  • the cut-off date for applications for requalification under Article 10 (Establishment Directive) route for EEA lawyers is 31 December 2020, i.e. the three-year period must be completed by that date. This means in practice that the registration as an REL must have happened before 31 December 2017
  • the cut-off date for the requalification under Article 10 (Establishment Directive) route for Swiss lawyers is 31 January 2024
  • in England and Wales, the QLTS will be replaced by the Solicitors Qualifying Examination (SQE) in autumn 2021 – see the SRA’s guidance on transitional arrangements

The Bar Council of England and Wales

EEA and Swiss-qualified lawyers established in England and Wales under the Establishment Directive can requalify as barristers following two routes until the end of the transition period:

  • after three years of effective and regular practice of local law, including EU law, as a registered European lawyer (REL) under Article 10(1) and (3) of the Establishment Directive
  • through the Qualified European Lawyers scheme overseen by the Bar Standards Board (BSB). EEA or Swiss nationals qualified in the EEA or Switzerland may apply for exemptions from part or all of the Bar Transfer Test (BTT). EEA or Swiss nationals qualified in the EEA or Switzerland do not need to take the Bar Course Aptitude Test (BCAT) aptitude test

REL status can be obtained by registering with the BSB. New REL registrations will be accepted until the end of the transition period (31 December 2020).

Once the transition period ends, RELs will no longer be registered with the Bar Standards Board (BSB).

Scotland

EEA and Swiss-qualified lawyers established in Scotland under the Establishment Directive are still able to requalify as a solicitor following two routes until the end of the transition period:

  • after three years of effective and regular practice of local law, including EU law, as a registered European lawyer (REL) under Article 10(1) and (3) of the Establishment Directive
  • through the Qualified Lawyers Assessment overseen by the Law Society of Scotland. EEA or Swiss nationals qualified in the EEA or Switzerland are eligible for an exemption from part of the exam

REL status can still be obtained by registering with the Law Society of Scotland until the end of the transition period (31 December 2020), although EU lawyers considering this route may wish to contact the Society to discuss their options.

Note that:

  • registration and practice as an REL will no longer be possible after 31 December 2020
  • the cut-off date for applications for requalification under Article 10 (Establishment Directive) route for EEA lawyers is 31 December 2020, meaning the three-year period must be completed by that date. This means in practice that the registration as an REL must have happened before 31 December 2017
  • the cut-off date for requalification under Article 10 (Establishment Directive) route for Swiss lawyers is 31 January 2024

The UK exit from the EU makes no difference as regards LPP afforded to the clients of EU/EFTA lawyers practising in the UK.

All UK jurisdictions recognise that legal advice privilege applies to all qualified foreign lawyers and their clients.

The privilege may apply whether the foreign lawyer is advising on local law or the law of their qualification, so long as there’s a lawyer/client relationship and other requirements for privilege are satisfied.

In IBM Corp v Phoenix International (Computers) Ltd [1995] 1 All ER 413 the Court of Appeal stated:

“The fact that the advice given [by American attorneys] related predominantly to English law is irrelevant. It was advice of foreign lawyers, acting as lawyers, to be used by Phoenix to decide what strategy to adopt in carrying on business…”

In the UK, in-house lawyers can also claim LPP on behalf of their client (the company/organisation for whom they work).

In the Court of Appeal in Alfred Crompton Amusement Machines Ltd v Customs & Excise Communications (No. 2) [1972] 2 QB 102 at 129, Lord Denning said that salaried legal advisers are:

“regarded by the law as in every respect in the same position as those who practice on their own account. The only difference is that they act for one client only, and not for several clients… I have always proceeded on the basis that the communications between the legal advisers and their employer (who is their client) are the subject of legal professional privilege”.

Lord Denning went on to qualify this by limiting the LPP to communications made in the capacity of legal adviser. LPP cannot be claimed in respect of communications of an executive nature.

In-house lawyers (solicitors and non-solicitors) must therefore take particular care to ensure that:

  • there's a clear distinction between advice which is legal and that which is commercial in nature, since the latter will not attract legal professional privilege
  • relevant lawyer/client relationships are clearly defined when instructing external lawyers

Most recently, the High Court held in PJSC Tatneft v Bogolyubov and others [2020] EWHC 2437 (Comm) that legal advice privilege extends to communications with foreign lawyers, regardless of whether they practise in-house or independent.

Moreover, the court should not enquire into the extent of their qualification or regulation, or whether legal advice privilege applies in their home jurisdiction.

Yes. Foreign qualified lawyers can practise under their home title.

They should use their own untranslated professional title or the word ‘lawyer’, together with a reference to the country or jurisdiction of their qualification, such as:

  • Australian solicitor
  • US attorney
  • French avocat

Yes, except for reserved activities.

In England and Wales, there are only six areas which are reserved to qualified solicitors, barristers or other recognised regulated professionals.

If a foreign lawyer wishes to practise in the reserved areas of work, they must re-qualify as an English solicitor or barrister.

However, unreserved areas of work can be carried out by EU lawyers.

England and Wales

According to the Legal Services Act 2007, the reserved areas are:

  • the exercise of a right of audience
  • the conduct of litigation
  • reserved instrument activities*
  • probate activities – preparing any probate papers (papers on which to found or oppose a grant of probate or a grant of letters of administration) for the purposes of the law of England and Wales or in relation to any proceedings in England and Wales
  • notarial activities
  • the administration of oaths

This means that the above activities can only be carried out by regulated/authorised persons who must comply with regulatory objectives and are supervised by an approved regulator.

In addition:

  • under the Financial Services Act 2012, solicitors and their partners are permitted to carry out certain categories of investment business without authorisation from the Financial Conduct Authority (FCA)
  • under the Immigration and Asylum Act 1999, only foreign lawyers who are partners or employees of UK solicitors can provide immigration advice and services

Legal activity that falls outside of the scope of the LSA and the other restrictions above is unreserved and includes:

  • providing legal advice in connection with the application of the law or with any form of resolution of legal disputes
  • any activity that does not fall within one of the six reserved legal activity categories. For litigation and advocacy, see question 4 below

Scotland

In Scotland, the legal work that can be undertaken by a Scottish solicitor only is very limited.

Similar to the ‘reserved instruments’ above, section 32 of the Solicitors (Scotland) Act 1980 restricts that work to the preparation of writs relating to court proceedings, the submission of writs relating to heritable or moveable estate and the preparation of papers to found or oppose an application for a grant of confirmation.

To undertake work listed in section 32, or to exercise rights of audience in court would require requalification as a Scottish solicitor or as an Advocate (as appropriate).

Northern Ireland

In Northern Ireland, an unqualified person cannot act as a solicitor under section 19(1) of the Solicitors (Northern Ireland) Order 1976 on reserved areas of work. This includes suing out:

“any writ or process, or commence, carry out or defend any action, suit or other proceeding, in the name of any other person or in his own name, in any court of civil or criminal jurisdiction, or act as a solicitor in any cause or matter, civil or criminal, to be heard or determined before any court or tribunal”

Furthermore, unqualified persons are not to prepare following instruments:

  • any instrument of transfer or charge or any other document for the purposes of the Land Registration Act (Northern Ireland)
  • any instrument relating to real or personal estate, or any legal proceedings
  • any instrument or other document or causes it to be lodged for registration in the Land Registry or the Registry of Deeds, or makes any application (other than an application to search in, or to receive copies of or extracts from, a register) to the Registrar of Titles
  • drawing or preparing any documents which to found or oppose a grant of probate or grant of letters of administration

Anyone seeking to practise as a barrister in Northern Ireland should note the detail given under point 6 above and that under the Code of Conduct of the Bar of Northern Ireland, a barrister must not:

  • enter into a partnership with another barrister, professional client or any other entity or individual, or
  • provide legal services within Northern Ireland in any capacity or as part of any entity or arrangement other than in their capacity as a member of the Bar of Northern Ireland

*The LSA defines ‘reserved instruments’ as:

  • the preparation of any instrument of transfer or charge for the purposes of the Land Registration Act 2002 (c. 9)
  • the making of an application or lodging a document for registration under that Act
  • the preparation of any other instrument relating to real or personal estate for the purposes of the law of England and Wales or instrument relating to court proceedings in England and Wales

‘Reserved instrument activities’ do not include the preparation of an instrument relating to any particular court proceedings if, immediately before the appointed day, no restriction was placed on the persons entitled to carry on that activity.

“Instrument” includes a contract for the sale or other disposition of land (except a contract to grant a short lease which is defined as a lease such as is referred to in section 54(2) of the Law of Property Act 1925 (c. 20)), but does not include:

  • a will or other testamentary instrument,
  • an agreement not intended to be executed as a deed, other than a contract that is included by virtue of the preceding provisions of this sub-paragraph,
  • a letter or power of attorney, or
  • a transfer of stock containing no trust or limitation of the transfer

Foreign lawyers do not have rights of audience in the courts, nor do they have the right to conduct litigation, nor the right to draw up court documents.

In England and Wales, foreign lawyers may apply to the Bar Standards Board (BSB) for permission to appear in the English courts on an ad hoc basis (temporary call). The procedures for temporary call are set out in Rules rQ25-27 of the BSB Handbook.

In most specialist tribunals, there are no restrictions on rights of audience. However, this does not apply at the appellate level.

For example, there are rights of audience to employment tribunals, but no rights in front of the Employment Appeals Tribunal or the Solicitors’ Disciplinary Tribunal, which are equivalent to courts. Nor there are rights of audience to Immigration Adjudicators or the Immigration Appeals Tribunal.

There is no restriction on rights to represent parties at arbitrations or in any other form of alternative dispute resolution (ADR) conducted in the UK.

In England and Wales, solicitors must carry professional indemnity insurance (PII) if they’re working in an SRA-regulated entity or providing any reserved legal activities under the law in England and Wales.

Barristers of England and Wales need to carry PII to the level stipulated by the BSB.

There are no legal requirements concerning PII for foreign lawyers (unless they are RELs). For more information, see the SRA Indemnity Insurance Rules.

In Scotland, applicants who wish to exercise those rights as a solicitor are required to provide “such evidence as may be required by the Council that he has satisfied its requirements as to the professional indemnity insurance cover required of registered foreign lawyers as they apply to him” under Practice Rule D7 on registration of foreign lawyers. This might equate to no requirement if the practice unit is responsible for obtaining cover.

In Northern Ireland, RELs must hold professional indemnity insurance in order to exercise their rights.

The answer to this question will depend on the result of the negotiations on the future partnership agreement (FPA) between the EU and the UK. This is not known at this point of time.

If the EU-UK FPA does not include provisions on registration with the host state bar, the following holds true for all foreign lawyers in the UK.

Unless they wish to enter into a partnership with UK qualified solicitors or join a multi-national corporate practice together with solicitors, foreign lawyers practising in the UK do not have to register with the legal regulators in the UK or be subject to any oversight by them. This applies to all but reserved activities.

In England and Wales, foreign lawyers must register with the SRA as registered foreign lawyers only if they want to become a manager or owner of an authorised law firm in England and Wales.

Foreign qualified lawyers do not need to register with the BSB (or another approved legal regulator) to work as an employee in a BSB entity, so long as they are not carrying on reserved legal activities.

To be an owner/manager at a BSB entity, one must be an authorised person (authorised by the BSB or SRA).

If an owner/manager of a BSB entity is not an authorised person, the entity would need to be licensed by the BSB as an alternative business structure (ABS).

BSB entities and ABSs must normally be registered and have a practising address in England and Wales (Part C6 of the Bar Qualification Manual).

In Scotland, foreign qualified lawyers only have to register with the Law Society of Scotland if they want to joining a multi-national practice as a manager, or an incorporated practice as a member.

There is no difference between the treatment of law firms from EU member states and law firms from outside the EU in the UK.

Yes, any foreign lawyer can practise in-house (provided they do not practise in the reserved areas).

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