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From the Brussels Office

14 November 16

Recent EU developments: cross-border legal services after Brexit

One of the Brussels Office’s key portfolios has always been the EU-specific framework for cross-border provision of legal services, which has greatly supported the cross-border provision of legal services within the EU/EEA (European Economic Area) and Switzerland. This includes the Lawyers’ Services and Lawyers’ Establishment Directives (provision of services on a temporary or permanent basis in another member state, plus requalification rights), and the Professional Qualifications Directive (recognition of legal qualifications, and now also of professional traineeships abroad).

Maintaining the mutual ability for UK nationals to provide legal services through cooperation and collaboration with European colleagues is something the UK Law Societies would like to see continue, however the other aspects of the EU withdrawal negotiations unfold. The Law Society of England & Wales will be aiming to ensure that the negotiations allow the existing legal services arrangements, or at least something equivalent, to continue, and will continue to welcome lawyers and law firms from across Europe, who wish to practise in the jurisdiction.

The Law Society of Scotland has also raised continued professional recognition and practice rights, as well as respect for legal professional privilege as it applies to Scottish solicitors within the EU, as key issues of concern to its members. Whatever the outcome of the Government negotiations, the Society will continue to maintain positive links with colleagues in EU bar associations, seek clarity in relation to admission and continued practice rights and support its members through the transitional process.

Without a specific agreement on the cross-border provision of legal services, the UK might fall back on the General Agreement on Trade in Services (GATS) commitments which stem from WTO membership.

One of the most important differences between the WTO regime and the Lawyers Directives is the practice areas in which foreign lawyers are allowed to provide services. While the Lawyers Directives allow EU/EEA/Swiss lawyers to practise host member state law (including EU law), this is not possible under the current GATS schedule for commitments of the EU, which is limited to “legal advice in home country law and public international law (excluding EC law)”. However, individual member states are free to grant higher levels of access to foreign lawyers on a unilateral basis and many member states (including the UK) have done so.

Furthermore, provisions concerning requalification or integration in the host state profession are not included in the GATS schedule, although it is possible for individual member states to enact their own rules in that area. Indeed, there exist some bilateral mutual recognition agreements covering legal services, such as France-Quebec or American Bar Association-Brussels Bars.

The EU framework has not simply ensured the basic right to provide, and receive, legal advice: it has also ensured representation in other member states, including rights of audience. One key aspect is the protection of lawyer-client communications, as the framework safeguards legal professional privilege (LPP) for clients of all EU/EEA/Swiss-qualified lawyers. It is vital that none of our clients lose this protection, wherever legal advice stems from or is provided within Europe – and the UK will certainly still be part of Europe, even if not the EU.

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