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Fear of lost EU legal privilege drives transfers

The reality of Brexit has been more mundane than the shockwaves and rumours swirling around the legal profession straight after the vote, said Law Society director general Ken Murphy at the Law Reform Commission conference in Dublin this week.

He said that straight after the vote Dublin was “awash with rumours” that big London-based international law firms would establish here to maintain their foothold in the EU. 

Ken Murphy said that the Brexit phenomenon began before the vote on 23 June 2016 with England and Wales solicitors beginning to appear on the roll in Ireland.

But since January 2016, a total of 1,917 practitioners from England and Wales have arrived on the roll, out of a total enrolment of 18,409 solicitors.

Eleven per cent

Eleven per cent of the solicitors on the roll in this jurisdiction are from England and Wales, he explained and a mutual recognition regime exists between the two jurisdictions.

He said that Ireland had always been a net exporter of solicitors and that practice in England and Wales was a safety valve in hard economic times for surplus Irish practitioners.

The enormous jurisdiction next door, with twelve times the population of Ireland meant  hundreds of Irish solicitors followed that path, he said.

East-west traffic

“Nobody ever expected that the traffic would be east to west across the Irish Sea,” he said.

The Law Society had fought hard to maintain the degree of parity, Ken Murphy said, because “solicitor of England and Wales” is a global brand while Irish solicitor may not be.

The capacity to transfer onto the roll in England and Wales is very powerful internationally, he said.

The key concerns of British firms relate to their status post-Brexit. Primarily,  it is the EU and competition law practitioners who are transferring here, Ken Murphy explained, not  litigation or M&A lawyers.

They are concerned about the right of audience at the EUCJ after Britain’s departure as a member state.

They are also concerned about legal privilege in EU competition law matters, since this is judge-made law and doesn’t exist in any statute of the EU.

Legal privilege

Ken Murphy said the issue of legal privilege, and the protections it offers, is driving a lot of the solicitor movement.

He said that this is the reason that “dead Irish grannies” are being pressed into service as lawyers seek to maintain or improve their status by maintaining EU nationality ahead of Brexit.

EU privilege

“We made clear, as the Law Society of Ireland, that they take their own advice on this,” he said. “We are not saying whether or not they will continue to be entitled to have EU privilege in these kind of cases.

“That ultimately might be a matter that Advocate General Gerard Hogan might be opining on some time in future, but clearly it helps to be on the roll in an EU member state” he said.

Meanwhile, DCU’s Professor Federico Fabbrini, told the conference that he believed Brexit could actually improve Ireland's standing.

"To a large extent, there is little reason to fear that Brexit will fundamentally change the EU legal order," he said. 

Prof Fabbrini said that Ireland was "really influential in the development of EU law, considering its size".