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OCTOBER 1977
INTERNATIONAL SECTION
LAWYERS FREE TO PRACTISE
IN EUROPE
Following a recent decision of the Council of the
E.E.C. Lawyers qualified to practise in Member States
will now be able to provide services for clients in other
Member States of the E.E.C. The Directive on freedom for
Lawyers to supply services was adopted on 22nd of
March 1977 and while some form of legislation will be
required to bring the Directive formally into application in
Ireland a note on the historical position with regard to
Foreign Lawyers practising in Ireland and on the effect of
the Directive may be helpful to Practitioners.
THE HISTORICAL POSITION
COURT WORK
It has been clearly established that only Barristers and
Solicitors qualified to practise in the Republic of Ireland
are entitled to appear, whether for reward or otherwise,
and conduct cases on behalf of parties to any proceedings
in a Court in the Republic.
NON COURT WORK
The only restrictions, contained in Section 58 of the
Solicitors Act 1954, relating to acts done by unqualified
persons (including persons qualified as Lawyers elsewhere
but not in Ireland) cover the drawing or preparation of
Documents relating to Real or Personal Estate or any
Legal Proceeding, procuring or attempting to procure the
execution by an Irish Citizen of Documents relating to Real
or Personal Estate outside the State and the U.K. or the
making of Applications to the Land Registry or taking
instructions leading to or preparing Documents
grounding or opposing Grants of Probate or Letters of
Administration where such acts were done either directly
or indirectly for or in expectation of any fee, gain, or
award.
The restriction on procuring Documents did not apply
to any "purely commercial or mercantile Document". It
seems clear therefore that a foreign Lawyer would have
been perfectly entitled to give legal advice to a client in
Ireland without contravening these restrictions and could
certainly have drafted many kinds of Documents in
substantial transactions which would have fallen within
the description of "purely commercial or mercantile
Doctiments". Since the Treaty of Rome prevents a
member state from introducing new restrictions based on
nationality no further restrictions could be imposed in the
Directive.
WHAT THE DIRECTIVE DOES
The Directive entitles a person who is qualified as a
Lawyer in each of the nine Member States of the E.E.C.
to provide Professional Services outside the State in which
he is established. Such Lawyer must describe himself by
the description which he uses in his Home Country and
while he may represent clients in Legal Proceedings in
another Country he may be required to work in
conjunction with a Lawyer who practises before the
appropriate Courts in that other Country.
Such Lawyer will be bound by the Rules of
Professional conduct of the other Country but without
prejudice to his obligations under his own Profession's
Code of Conduct.
WHAT THE DIRECTIVE DOES NOT DO
The Directive does not entitle a Lawyer established
in one of the Member States to set up an office in one of
the other States. It does not establish equivalence of
qualification between Lawyers in different States and it
does not require a Lawyer wishing to exercise his rights
under the Directive to register with the professional
orgainsation of Lawyers in the Foreign Country.
WHAT RESTRICTIONS MAY BE IMPOSED BY
MEMBER STATES
(1) Member States may reserve to prescribed categories
of Lawyers the preparation of formal Documents for
obtaining Title to administer Estates and the drafting
of formal Documents creating or transferring
interests in land.
(2) Member States may require that a visiting Lawyer
wishing to represent a client in Legal Proceedings
may have to be introduced to the presiding Judge or
to the President of the relevant Bar.
(3) It may exclude Lawyers who are in salaried
employment of a public or private undertaking from
representing that Undertaking in Legal Proceedings
when Lawyers in a similar position in the State would
not be permitted to represent the undertaking.
(4) The Lawyer proposing to make use of the Directive
may be obliged to establish his qualification. In this
respect there is a proposal that a recognised form of
Document could be issued by the appropriate
Authorities in the Member States to Lawyers.
COUNCIL OF EUROPE FELLOWSHIPS FOR
LEGAL STUDIES AND RESEARCH
In order to promote study and research in European
Law and to contribute to its wider dissemination, the
Council of Europe will each year award fellowships to
persons who have completed a course of studies in law at
university level, or who have a similar professional
qualification, for studies relating to the Council of
Europe. Application forms and further details are
available on request from the Secretariat Division (Room
421), Dept. of Justice, 72/76 St. Stephen's Green, Dublin
2.
It should be noted that applications for Fellowships
must reach the Secretariat of the Council of Europe not
later than 15th March, 1978, and that the Selection
Committee of the Council have indicated a strong
preference for Fellowships to be taken up during the
period 1st June to 31st December, 1978.
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