Comparing the deal with no-deal for solicitors

On Brexit, nothing can be predicted from one day to the next. The Prime Minister alluded to three possible future options: her deal, no deal or Remain. What difference will these options make to lawyers in their practice as lawyers? I will not deal with the Remain option, on the assumption that we all know what Remain means, given that it is the status quo. 

Therefore I will deal with the difference between her deal and no deal from the perspective of practising lawyers. There are obviously much larger issues at stake than our interests, but it is important to know the consequences for us. 

One of the principal aspects of the newly announced deal is that it will guarantee a transitional period until 31 December 2020.

For solicitors’ practice rights in other parts of the EU, this transitional period will give those solicitors who want to practise in the EU time to regularise their positions. Solicitors who have been paying any attention to the news will have been making plans regardless. But, effectively, solicitors who are hoping to requalify as a lawyer in another Member State, whether established in that other Member State or not, will be given until the end of the transition in order to apply. Any recognition granted before that date will continue to be recognised afterwards; any application for recognition or examination beforehand will continue to be treated under EU legislation afterwards (Articles 27-28). So, if that is what you want to do, get going now.

Given what the Prime Minister’s agreement says about citizens’ rights, those solicitors established and qualified in another Member State should be able to remain and practise there after 31 December 2020. But remember: this deal does not give you the right to cross borders with your EU title. It only gives you the right to continue to have your particular title recognised as such. You will be a French avocat, say. In order to cross borders with that title, you will have to have EU nationality as well. Those not established would have to rely on immigration and local bar rules for future entry and practice.

If there is no deal, all bets are off as to what will happen to practice rights. The Law Society has issued excellent advice for solicitors if this were to happen. Essentially, practice rights not secured by an EU qualification before 29 March 2019 would be lost after that date. The UK would become a third country, and solicitors’ practice rights would depend on local rules.

But that is not the only area affected by the deal. There are also the many cross-border civil cases which depend on EU civil justice instruments. The deal has a section focusing on ongoing judicial cooperation in civil and commercial matters (Articles 66-69). Again, the Law Society has issued brief advice to the profession on what this entails.

Again, the transition will give solicitors time to sort out which cases will continue to be governed by the EU instruments. So, for instance, the Rome I and II Regulations on the law governing contractual and non-contractual obligations will apply to contracts concluded - or events occurring in the case of Rome II - before the end of the transition (Article 66). The Brussels Regulation and other rules on jurisdiction will apply to proceedings taken before the end of the transition (Article 67). 

On the recognition and enforcement of judgments, the Brussels Regulation applies to proceedings taken before the end of the transition, and to decisions, instruments or settlements that are approved or concluded before the transition ends. The same applies to Brussels IIa, the Maintenance Regulation, and to European Enforcement Orders, provided that certification as a European Enforcement Order was applied for before the end of the transition.

For ongoing judicial procedures (article 68), the Service of Documents Regulation and the Regulation on the taking of evidence will apply to judicial documents received or requests received before the end of the transition.

If there is no deal, all reciprocal elements of EU law will cease to have effect on 29 March 2019. The rules governing the enforceability of any case decided after 29 March 2019 will cease to have effect, and there is a risk that parallel cases may be taken in multiple jurisdictions. As the Law Society’s guidance says, ‘The status of ongoing cases is unclear’.

As for the outline of the political declaration setting out the framework for the future relationship – the future trade deal - it obviously does not mention lawyers specifically. It calls for ambitious arrangements on trade in services and ‘appropriate arrangements on professional qualifications’. It is impossible to predict what might be negotiated.

As we know, the future remains outside our control. But we should plan for the alternatives.