The Gazette 1994

AUGUST/SEPTEMBER

1994

GAZETTE

the migrant must take on oral exam consisting of a fifty minute presentation and a forty minute discussion on professional conduct and the optional written subject. *This article has been prepared by Bernard O'Connor, Partner in Stanbrook and Hooper (Brussels). It is an extract from a paper on Free Movement of Lawyers presented at the ICEL conference of 28 May, 1994 entitled "New Opportunities for Lawyers".

The Diplomas Directive

documents, and undertake certain types of estate administration functions. In those Member States where there is no monopoly on legal advice there can be no prohibition, under general Treaty provisions on establishment, on giving legal advice on home State law, Community law, International law, and even, the law of the host State. In those Member States where there is a monopoly, it is strongly arguable that it would be disproportionate to use the monopoly restriction to deny establishment for the purposes of giving home legal advice and advice on Community and International law. It is no less arguable to assert that the monopoly for advice on host state law is an even more egregious breach of general Community principles. I understand that action in France can be expected to clarify this issue in the near future. The right of establishment to practise as a fully fledged local lawyer in the host state is more controversial. There is as yet no legislation on the matter, although there is a draft Directive which has been drawn up by the Council of the Bars and Law Societies of the European Community (CCBE) and submitted to the Commission for its consideration. The draft provides for the registration of lawyers who are established in the home state, in the host state; conflicts between home and host states in disciplinary issues; professional title; and the reservation of certain activities to host state lawyers. It is clear that one of the issues of concern on establishment is the question of discipline. To meet the problem of conflicting rules and regulatory authorities the CCBE has drawn up a Code of Conduct known as the "Common Code." The Code does not resolve issues such as advertising or confidentiality for example. It provides, rather, for different categories of rules and, where there is no compatibility as between them, it attempts to set out procedures for the reduction of conflict.

The right to be registered as a lawyer in the host State is covered by the 1988 Diplomas Directive. Council Directive (EEC) No 89/48 of 21 December 1988, on a general system for the recognition of higher education diplomas awarded on completion of professional education and training of at least three years duration, is the key legislative provision for establishment of home state lawyers as local lawyers in host states. The Directive covers any national of a home state wishing to pursue a regulated profession in a host state in a self-employed capacity or as an employed person. It was adopted as a legislative response to the Thieffry case discussed above. Members States may require that the migrating professional "adapt" to the host state to compensate for objective differences between his home training and the host responsibilities. This adaptation mechanism can either be an aptitude test or an adaptation period. For lawyers, the choice between the two methods is determined by the host state and is not at the choice of the migrant. Adaptation mechanisms have been adopted by all Member States (Belgian legislation is in the pipeline) Irish lawyers will be most familiar with the adaptation mechanisms for the UK. Irish solicitors are exempted from any test. Barristers need only pass a test in property law. I am informed by the Law Society that, as of December 1993, 308 Irish Solicitors had become members of the Law Society of England and Wales. The aptitude tests in other jurisdictions are more onerous for the Irish lawyer. In Germany, for example, the migrating lawyer must take three written examinations of five hours each on civil law, public or criminal law, and one other paper from a choice provided. In addition as well as in most of the EFTA countries under the European Economic Area agreement.

T e c h n o l o g y N o t e s

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It is likely that the majority of solicitors are not aware of the existence of the Technology

Committee. Similarly there appears to be little awareness of the existence of the recommended supplier system which has been put in place by the Committee.

Conclusion

The effects of computers and software are only beginning to be felt within the profession. Solicitors who do not take the opportunities now being offered will shortly be at a major disadvantage against their competitors. The assessment of the computer needs of a practice is a matter for each individual practice. The Law Society cannot prescribe an answer which fulfills the needs of every practice and it is naive to think otherwise. The amount of time and effort which a solicitor expends in trying to assess the needs of his practice will normally be reflected in the success or otherwise of the system. Whether the profession likes it or not the l's and O's are here to stay. The benefits of the digital age are here to stay and will transform the way we practice and ultimately the way we live. •

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