4.96 In its Preliminary Report, the Competition Authority recommended that the Department of Justice, Equality and Law Reform should establish criteria for foreign lawyers which would be assessed on a case-by-case basis by the Law Society and that King’s Inns should amend its rules to permit foreign lawyers to practise in Ireland as barristers without the need for reciprocity or other recognition requirements but subject to the Bar Council’s Code of Conduct and disciplinary sanctions.
4.97 The Law Society:
“agrees with the proposal that criteria be established for foreign lawyers and believes that such criteria should be set down by the Society with the consent of the Department of Justice, Equality and Law Reform. The assessment of such foreign lawyers should be undertaken on a case by case basis by the Society”.154
149 The transfer test for solicitors (known as the Qualified Lawyers Transfer Test or “QLTT”) consists of examinations in Constitutional Law & Company Law or Constitutional Law & Criminal Law, Contract & Tort, Land Law & Conveyancing, Professional Conduct, Probate & Tax, Solicitors’ Accounts, and European Union Law. King’s Inns does not have any reciprocal arrangements with other countries.
150 Section 52 of the Solicitors (Amendment) Act 1994.
151 The Law Society recently announced that its Council has approved reciprocal recognition with New South Wales in Australia. Source: Law Society Gazette, August/September 2006, p 44.
152 Rule 23(a) Education Rules of the Honorable Society of King’s Inns (October 2004 edition). 153 Rule 23(d) Education Rules of the Honorable Society of King’s Inns (October 2004 edition).
4.98 King’s Inns noted that the issue of international recognition of legal qualifications is currently under review by the World Trade Organisation (WTO). The WTO is considering the extension of the model provided for by Council Directive 98/5/EC.155The King’s Inns favours this model over the one proposed by the Competition Authority. It
believes that:
“this model, and not that suggested by the Authority, would be the appropriate one in the event that it was decided to extend the recognition of foreign legal qualifications”.156
Analysis of the Competition Authority
4.99 The protection of consumers of legal services is a valid objective, given the potential for significant harm resulting from poor legal advice, and the difficulties many consumers of legal services would face in accurately assessing the quality of the service they receive. Nevertheless, the current restrictions are disproportionate, and the objective of protecting consumers can be better achieved by less restrictive means.
4.100 Reciprocity arrangements are not the best means of regulating the entry of foreign-trained lawyers to the Irish market. The present arrangements are illogical and inconsistent. Lawyers from countries with common-law jurisdictions similar to Ireland, such as Australia, New Zealand and Canada, are subject to greater stringency in entry requirements than lawyers from EEA countries, including those EEA countries that have significantly different legal systems to Ireland (e.g. civil law jurisdictions).
4.101 The present requirements prevent Ireland becoming a destination for overseas law firms to establish European offices. Extending the system established via Council Directive 98/5/EC to non-EEA lawyers will enable overseas law firms to establish themselves in Ireland and provide legal services to both Irish and European consumers. As well as giving consumers greater choice, this would also potentially attract lawyers with diverse backgrounds and expertise and would be likely to result in stronger competition in particular areas of law such as international finance.
4.102 The Competition Authority agrees that it would be sensible to adopt the model which is being proposed by the WTO, as noted by King’s Inns in its response to the Preliminary Report. Adopting this model would mean that lawyers from non-EEA countries could practise in Ireland under their home country designation and, after a period of three years, be eligible to apply for admission to practise as either an Irish solicitor or barrister, subject to the provision of proof of regular and effective pursuit of law in Ireland. This would adequately address the objective of ensuring that foreign-trained lawyers are properly qualified to practise law in Ireland. 4.103 However, given that it may be some time before such a model is finalised by the WTO, it is important that an
intermediate solution is put in place to remove the current restrictions faced by foreign-qualified lawyers wishing to practise in Ireland.
Solution
4.104 The system created as a result of Council Directive 98/5/EC, whereby lawyers qualified in EEA countries can practise in Ireland under their home designation only (for example, a French lawyer can practise in Ireland as a French lawyer), should be replicated to allow non-EEA lawyers to practise in the State under their home title. 4.105 The same approach should be adopted in relation to Council Directive 89/48/EC which created the system
whereby lawyers qualified in an EEA Member State can become qualified as lawyers in another Member State without having to undergo full professional training, provided that they can satisfy the requirements157of the
relevant competent authority (King’s Inns in the case of barristers and the Law Society in the case of solicitors) in relation to their knowledge of Irish law.
4.106 Replicating the systems created by these Council Directives would be equitable and clear and more efficient than the current reciprocity system or a case by case approach to applications from foreign-trained lawyers.
Recommendation 5:
The current system of reciprocity in recognition of legal training of non-EEA lawyers should be replaced by mirroring the existing provisions for EEA lawyers
Details of Recommendation Action By
Legislation should be enacted to replace the current system of Minister for Justice, Equality and Law reciprocity with a system that mirrors Council Directive 98/5/EC Reform
for non-EEA lawyers who wish to practise in the State under
their home title. June 2008
Legislation should be enacted to replace the current system of Minister for Justice, Equality and Law reciprocity with a system that mirrors Council Directive 89/48/EC Reform
for non-EEA lawyers who wish to practise in the State as an Irish
solicitor or barrister. June 2008