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GAZETTE
AUGUST/SEPTEMBER
1994
documents, and undertake certain
types of estate administration
functions.
In those Member States where there is
no monopoly on legal advice there can
be no prohibition, under general
Treaty provisions on establishment,
on giving legal advice on home State
law, Community law, International
law, and even, the law of the
host State.
In those Member States where there is
a monopoly, it is strongly arguable
that it would be disproportionate to
use the monopoly restriction to deny
establishment for the purposes of
giving home legal advice and advice
on Community and International law.
It is no less arguable to assert that the
monopoly for advice on host state law
is an even more egregious breach of
general Community principles. I
understand that action in France can
be expected to clarify this issue in the
near future.
The right of establishment to practise
as a fully fledged local lawyer in the
host state is more controversial. There
is as yet no legislation on the matter,
although there is a draft Directive
which has been drawn up by the
Council of the Bars and Law Societies
of the European Community (CCBE)
and submitted to the Commission for
its consideration. The draft provides
for the registration of lawyers who are
established in the home state, in the
host state; conflicts between home
and host states in disciplinary issues;
professional title; and the reservation
of certain activities to host
state lawyers.
It is clear that one of the issues of
concern on establishment is the
question of discipline. To meet the
problem of conflicting rules and
regulatory authorities the CCBE has
drawn up a Code of Conduct known
as the "Common Code." The Code
does not resolve issues such as
advertising or confidentiality for
example. It provides, rather, for
different categories of rules and,
where there is no compatibility as
between them, it attempts to
set out procedures for the reduction
of conflict.
The Diplomas Directive
The right to be registered as a lawyer
in the host State is covered by the
1988 Diplomas Directive.
Council Directive (EEC) No 89/48 of
21 December 1988, on a general
system for the recognition of higher
education diplomas awarded on
completion of professional education
and training of at least three years
duration, is the key legislative
provision for establishment of home
state lawyers as local lawyers in host
states. The Directive covers any
national of a home state wishing to
pursue a regulated profession in a host
state in a self-employed capacity or as
an employed person. It was adopted as
a legislative response to the Thieffry
case discussed above.
Members States may require that the
migrating professional "adapt" to the
host state to compensate for objective
differences between his home training
and the host responsibilities. This
adaptation mechanism can either be an
aptitude test or an adaptation period.
For lawyers, the choice between the
two methods is determined by the host
state and is not at the choice of the
migrant.
Adaptation mechanisms have been
adopted by all Member States
(Belgian legislation is in the pipeline)
as well as in most of the EFTA
countries under the European
Economic Area agreement.
Irish lawyers will be most familiar
with the adaptation mechanisms for
the UK. Irish solicitors are exempted
from any test. Barristers need only
pass a test in property law. I am
informed by the Law Society that, as
of December 1993, 308 Irish
Solicitors had become members
of the Law Society of England
and Wales.
The aptitude tests in other
jurisdictions are more onerous for the
Irish lawyer. In Germany, for
example, the migrating lawyer must
take three written examinations of five
hours each on civil law, public or
criminal law, and one other paper
from a choice provided. In addition
the migrant must take on oral exam
consisting of a fifty minute
presentation and a forty minute
discussion on professional conduct
and the optional written subject.
*This article has been prepared by
Bernard O'Connor, Partner in
Stanbrook and Hooper (Brussels).
It is an extract from a paper on
Free Movement of Lawyers
presented at the ICEL conference
of 28 May, 1994 entitled "New
Opportunities for Lawyers".
T e c h n o l o g y N o t e s
(Continued from page 375)
It is likely that the majority of
solicitors are not aware of the
existence of the Technology
Committee. Similarly there appears to
be little awareness of the existence of
the recommended supplier system
which has been put in place by the
Committee.
Conclusion
The effects of computers and software
are only beginning to be felt within
the profession. Solicitors who do not
take the opportunities now being
offered will shortly be at a major
disadvantage against their
competitors.
The assessment of the computer needs
of a practice is a matter for each
individual practice. The Law Society
cannot prescribe an answer which
fulfills the needs of every practice and
it is naive to think otherwise. The
amount of time and effort which a
solicitor expends in trying to assess
the needs of his practice will normally
be reflected in the success or
otherwise of the system.
Whether the profession likes it or not
the l's and O's are here to stay. The
benefits of the digital age are here to
stay and will transform the way we
practice and ultimately the way
we live.
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