Legislation allowing lawyers from other EU states to practise in Ireland will be introduced by the end of the year. This will give effect to an EU directive on the issue.
The Minister for Justice has announced that a Statutory Instrument and Amendments to the Solicitors (Amendment) Bill 1998 will be introduced so the directive can be made law. The directive was passed in February 1998, and should have come into effect here in March of this year.
However, it faced a challenge in the European Court of Justice from Luxembourg on the grounds of consumer protection and the proper administration of justice. Luxembourg also argued that the relevant directive required unanimous approval at the Council of Ministers, rather than the qualified majority it received.
The European Court of Justice has ruled the directive was lawful, and a unanimous decision by the Council of Ministers was not needed to endorse it. It said because a lawyer had to make public the nature and origin of his qualifications, potential clients could make an informed choice on his suitability.
The directive provided that migrant lawyers must observe the same rules of professional conduct as other lawyers in the host member state. It also states that migrant lawyers must be covered by professional insurance and be subject to disciplinary rules.
Before this directive, lawyers from outside the State had to take a number of conversion examinations to ensure familiarity with Irish law. This mainly affected British-qualified lawyers, who needed additional qualifications in land law and constitutional law in particular, as these differ from British law. Under the new directive, such conversion examinations will no longer have to be taken.
However, lawyers from outside the State will have to register with the appropriate professional association and indicate the origin of their qualifications.
But there will be concern about the gulf that exists between lawyers trained in the common law tradition, like those in Ireland, England, Scotland and Wales, and those trained in the European tradition, which is influenced by the Napoleonic Code. The European tradition is more inquisitorial than adversarial, and does not include the presumption of innocence and emphasis on jury trial which are an intrinsic part of Irish and British law.
In the US, which has a common language and legal tradition, lawyers qualified in one state may not, in general, practise in the state courts in another without taking qualifying examinations there. This is in contrast to the situation which will now operate in the EU.