Practice law in England without being an English lawyer? Potentially, under proposed EU reforms

Plans are afoot to widen access to the legal profession in EU member states through disaggregating the professional activities from the profession itself, and granting access to some of the former for incoming EU migrants.

An interesting blog post of the International Working Group On The Legal Professions (IWGLP) discusses proposed reform of an EU directive that would force UK legal regulators such as the SRA and BSB to give access to reserved legal sector activities to those who do not belong to a UK legal profession.

As a reminder, the reserved legal sector activities are:

  • the exercise of a right of audience,
  • the conduct of litigation,
  • reserved instrument activities,
  • probate activities,
  • the administration of oaths,
  • the provision of immigration advice and services, and
  • notarial activities. (The SRA is not an licensing authority for notarial activites.)

Don’t worry, this doesn’t mean someone who isn’t legally trained is going to migrate to the UK and start working as a fully-fledged lawyer with no regulatory oversight or assessment. The wording of the new provisions states that access is only to be granted where the difference between the exercise of the activity itself and the profession that regulates it are so great that that only way to enable access otherwise would be for the migrant to fully complete the training and qualification process normally required for access to the full regulated profession in that country.

Further, the activity must also be able to be objectively separated from other activities that fall under the regulated profession. It is conceivable that will-writing, for example, would constitute such an activity.

Whilst this normally happens currently anyway – in the form of Registered European/Foreign lawyers – the proposals effectively mean that, for example, an Italian lawyer could practise will-writing services in England without coming under the regulation and oversight of the SRA.

There is a get-out, in that such access can be rejected where there are sound proportionate public interest reasons to do so. However, the IGWLP points out that this could lead to a fragmentation of the profession in order to meet the requirements of the directive, as well as raising issues of whether, if and how a migrant relying on these provisions to practise in the long-term will be subject to the normal professional rules governing that activity that would apply to a fully-fledged professional.

For our part, QLTS School has already suggested something similar to the Legal Education and Training Review (LETR – see previous post here) – that internationally-qualified lawyers could take the MCT component of the QLTS if they seek to only provide written advice on English law to clients, and not exercise the full functions or reserved legal activities of a fully-qualified English solicitor; similar to the role of a magistrates’ clerk. However, the proposed reforms discussed here go further than this, potentially permitting access to the activities themselves without such prior training or assessment. It will be interesting to see whether and how this proposed reform is adopted and/or implemented.