Brexit refugees solicitors create their own backstop

The Brexit divisions in Britain appear to grow deeper and more bitter by the day, and there seems no end in sight to the all-pervasive uncertainty.

In this context, the Law Society has met with leaders of many of the very large international law firms that have chosen to transfer substantial numbers of their solicitors (albeit that each application is individual) to the Roll in this jurisdiction, in addition to their membership of the Roll in England and Wales.

While, no doubt, there are a range of professional or even personal motivations involved, the predominant one, as openly discussed with us by many firms, is the desire of specialist EU and competition law practitioners to protect, as best they can, their status in that field post-Brexit.

Rights

Two concerns are mentioned most frequently: the desire to protect rights of audience in the European Court of Justice; and the desire to maintain legal privilege for their communications and advice to clients that may be the subject of EU investigation.

The existence of such privilege was first established in the European Court of Justice case AM&S in 1982.

To be entitled to this privilege in their dealings with their clients, lawyers must be entitled to practise in one of the member states.

In the years up to 2015, on average every year, about 50 England and Wales-qualified solicitors, together with a much smaller number from Northern Ireland, would take out a second qualification by entering on the Roll in Ireland pursuant to regulations made in implementation of the EU’s Recognition of Higher Education Diplomas Directive of 1989.

Incidentally, under the same regime, Irish qualified solicitors can enter on the Roll of Solicitors in England and Wales, and in Northern Ireland, by a similarly seamless and examination-free administrative process.

Tsunami

The earth-shaking result of the British referendum on Brexit on 23 June 2016 provoked a tsunami of solicitors travelling east to west across the Irish Sea.

The number of transferring England and Wales solicitors leaped from some 50 in 2015 to 806 in 2016. The level of annual increase reduced slightly in 2017, to 547, but has surged again to date in 2018 with 601 (up to 15 November 2018), with 156 more applications currently being processed.

As there are currently 18,461 solicitors on the Roll in Ireland, more than 11% of all the names on the Roll are England and Wales-qualified solicitors who have joined in the last two-and-a-half years.

Although it is a very large proportion of the solicitors on the Roll in this country, that number of England and Wales solicitors – as a proportion of the 192,121 solicitors on the Roll in England and Wales – is very small.

Listing

For the third year in a row, the December Gazette has published a table listing the largest ‘Brexit transfer’ firms, together with the previous year’s table for comparison purposes. Also published this year, for the first time, are the firms that have chosen, in addition, to take out practising certificates for the current calendar year in this jurisdiction.

The largest by a considerable distance, in the number of PC holders, is Freshfields Bruckhaus Deringer with 69, followed by Hogan Lovells with 23 practising certificate holders, and Allen & Overy with 16.

Vote

Even though the firms have chosen to take out and pay for practising certificates in this jurisdiction, their regulator remains the Solicitors Regulatory Authority of England and Wales – not the Law Society of Ireland.

Only two of the 20 largest firms on the 2018 list have established offices in this jurisdiction following the Brexit vote, namely Pinsent Mason and, to date, in fledgling form, the world’s fourth biggest law firm, DLA Piper.