UK Lawyers Could Be Forced Out of EU Courts with No-Deal Brexit

By | July 23, 2019

UK lawyers with lucrative careers in European Union law are fighting to save their jobs after the bloc’s top courts warned that a no-deal Brexit would forbid them from representing clients.

In an April letter, a senior official at the Court of Justice of the European Union in Luxembourg urged attorneys to find ways to avoid the fate of Britain’s judges at the institution’s two tribunals, who face being frozen out due to the UK’s decision to quit the EU.

Three months on, the prospect of the UK crashing out of the EU looms once again. Parliament is trying to prevent a no-deal exit, but there’s no guarantee they will be able to rein in the next prime minister. Boris Johnson, the favorite in a leadership race whose winner will be announced Tuesday, has vowed to leave the bloc on Oct. 31 with or without a deal and his underdog rival is also prepared to walk away without an agreement.

“A hard Brexit thanks to Boris Johnson means that those British lawyers without a workable and robust solution will lose their legal professional privilege and audience rights,” said Trevor Soames, a Brussels-based competition lawyer at Quinn Emanuel Urquhart & Sullivan. “Those working from London without a credible Brussels presence will lose out as I doubt international, non-UK, clients will go to London-based lawyers for Brussels-related work.”

If there’s no deal, a certificate to practice law before a UK tribunal “would no longer fulfill the conditions,” the registrar at the EU General Court warned. Lawyers should “ensure that the necessary steps are taken” to be able to defend their clients and that “it is naturally with some regret that I draw this matter to your attention.”

Attorneys registered in England and Wales based in London and Brussels, the EU’s unofficial capital, have found various workarounds. But there’s no one-size-fits-all solution, depending on residency rights, citizenship and, for some, the need to sit exams.

Many have registered with the Brussels bar and taken on local citizenship to become full Belgian lawyers. More flocked to Ireland. Both routes have pitfalls.

Matthew Levitt, an EU antitrust lawyer with Baker Botts in Brussels, qualified as an English barrister and a solicitor in London. Barristers normally plead in court while solicitors do traditional legal work in a firm and advise clients.

“That was all fine until Brexit loomed,” he said. Plan B was to register as an Irish solicitor, joining more than 3,330 England and Wales solicitors who have taken this path since early 2016.

He then got a letter in March from the Law Society of Ireland “saying here’s your 2019 practicing certificate, but you should be aware that it is conditional,” said Levitt. The condition was that lawyers needed a permanent establishment in Ireland. “Effectively what they were saying is that it was invalid.”

“There was quite a lot of concern and outrage,” said Levitt. Due to the uncertainty he decided to become a member of the “Brussels A list,” a fully fledged Belgian lawyer.

The Law Society of Ireland said that the status of those practicing outside the jurisdiction is “legally complex” and after queries from solicitors it’s developed detailed guidance. But Levitt says he now “feels fully secure,” partly because he also became a Belgian citizen.

Soames went direct to the Brussels bar and also took Belgian citizenship. Last month, he pleaded for the first time as a Belgian lawyer before the EU courts in Air Canada’s appeal of antitrust fines.

The Brussels profession has been “very open and welcoming” to foreigners “who have been practicing for a suitable period of time in Brussels, are residents in Brussels and have an office in Brussels,” said Soames.

But, under a Belgian law dating back to 1970, lawyers can only keep their rights if they are also citizens of an EU nation. That’s a “slight problem, therefore, for UK lawyers,” said Soames, because they would lose this status after Brexit.

This is “obviously a matter of enormous and understandable concern to those who have made their careers upon European law,” he said.

Belgian professional bodies say they are looking for solutions. A Brexit law from this year grants an extension and allows attorneys to hold on to their rights in case the UK leaves the EU without a deal until December 2020.

James Webber, who works on UK and EU competition law at Shearman & Sterling mainly in London, registered in Ireland but is optimistic of avoiding a no-deal Brexit trap.

“It’s just going to be much, much messier than any of us have been used to up till now. But, that’s Brexit.”

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