‘Online lawyers’ post-Brexit

The advocate general of the Court of Justice of the European Union has just delivered his opinion in the Lahorgue case – C‑99/16, and it has come out as expected.

Mr Lahorgue, a French national, is a lawyer registered in Luxembourg. He wanted access to what is called ‘e-barreau’, the platform linking the French court intranet system to the French lawyer intranet system, which allows for electronic filing by lawyers in France. For this, he needed access to the Virtual Private Network of Lawyers (RPVA) router and to be provided with an authentication key. The RPVA intranet is managed by the French Bar (Conseil national des barreaux). If successful, he would have been able to undertake cross-border electronic court transactions in France from Luxembourg.

His request was denied by the Lyon Bar, on the grounds that he was not registered in Lyon, and so had to act in conjunction with a local lawyer. The following question was referred to the Court of Justice: ‘Is the refusal to issue a router for accessing the RPVA to a lawyer duly registered at the bar of a member state solely on the ground that he is not registered at the bar of the other member state in which he wishes to practice his profession as a free provider of services contrary to Article 4 of Directive 77/249/EC, on the basis that it constitutes a discriminatory measure which could impede the practice of his profession as a free provider of services in situations where [a] local lawyer is not required by law?’

The advocate general has now given his opinion that denying another member state lawyer’s access to the router solely on the grounds that he is not locally registered is contrary to Article 4.

One of the arguments put against granting Mr Lahorgue the router was that the identity of a lawyer not registered in France could not be electronically checked on a regular basis (as happens with French-registered lawyers). The advocate general noted that although proof of identity and status as a lawyer may be required as a precondition for the issue of a router, daily verification seems excessive, particularly since it is currently impossible. He noted that ‘such technical obstacles should, however, disappear soon with the implementation of a project for identifying European lawyers entitled Find-A-Lawyer 2 introduced by the CCBE and the Commission’.

For background to this last statement, it is not known when Find-A-Lawyer 2 will go live on the European Commission’s e-justice portal, but live testing is beginning. It will start with basic transactions under EU instruments between a limited number of lead member states, but will doubtless spread in time to all manner of filings among a broader cross-section of countries.

(For those curious about the ‘2’, Find-A-Lawyer 1 is the electronic directory available on the European Commission’s e-justice portal. The data provided is from the participating national bars’ own electronic directories, which are kept constantly updated, and so reliable. Find-A-Lawyer 2, on the other hand, is the electronic system which proves a lawyer’s role as a lawyer in electronic transactions, which is necessary in situations like court document filing, and uses the data from Find-A-Lawyer 1.)

The Lahorgue case, and the background technological developments, are important for EU lawyers, and for us post-Brexit, too. It is a confirmation of what many have assumed to be a principle of free movement, which is that what is possible in the physical world should also be possible in the virtual world. If Mr Lahorgue could have physically filed documents in person or by post with a court in France under the lawyers’ directives, why should it be different when new technology is used? The Find-A-Lawyer system will soon make this a reality,

Post-Brexit, the message I have given to colleagues in the US is now relevant to us: the EU is developing a powerful template for cross-border transactions across legal systems and languages, which is likely to become a world leader. Our government says that they want the UK to be outward-looking and to engage with the whole world. We therefore need to monitor developments like these.

English lawyers will continue to interact closely with European colleagues, and this will in due course extend to electronic transactions, even when we are outside the EU. The march of technology is such that what is possible now will soon become commonplace. Presumably in time we will regularly engage in cross-border electronic transactions outside the UK. Therefore, we should ensure that our systems are capable of making the eventual link-up.

The advocate general’s opinion is just advisory, but the court’s judgment usually follows it. Regardless, with our own electronic court procedures striding ahead, linking with other major systems is one of the keys to future international success.