The loss of legal privileges and right of representation for UK based lawyers involved in cross-border EU matters and proceedings, unless they are also qualified as EEA lawyers
This article is addressed to in-house counsels and clients of UK law firms who must now review their need for UK and EU legal advice if up to this point they have been relying on UK solicitors and barristers.
EU rules on third-country lawyers
After the end of the transitional period on 31 December 2020, UK lawyers who are not also qualified or have not requalified as EEA lawyers will be treated as ‘third country’ lawyers.
Third country lawyers (and this will include UK lawyers unless the “deal” if there is one, addresses this issue) practising in the EU or advising on cross border legal issues (contentious and non-contentious), have not been held to be covered by legal privilege. They also lose the right to represent their clients before EU and national authorities and courts.
This will cause issues for UK lawyers:
- Based in the EU after 2020 who choose to provide legal advice as a third country lawyer;
- Based in the UK but providing advice on cross-border EU operations, such as on registration or renewal of intellectual property rights in the EU; and
- As there will no longer be a set of commonly adhered ethic rules between lawyers from the EU and the UK (European Code of Conduct).
Non-EU lawyers based in the EU, or based in the UK but involved in cross-border EU matters or proceedings, are not allowed to represent their client before EU or national authorities and courts. However, this is not new. This has meant lawyers must find solutions with the local authorities in Europe. These solutions will be relevant to us in the UK post-2020 assuming solicitors and barristers have not sought to requalify themselves as EEA lawyers.
For example, it is common practice for our US colleagues based in the EU to co-operate with EU lawyers in corporate or JV structures when they provide legal advice so that their EU colleagues can sign off on any issued guidance or advice to clients. However, this assumes that the law firm in question employ both EU and non-EU lawyers.
If the no-deal Brexit proceeds, or if the deal does not address this point (which is likely to be the case) as there is no precedent where the EU allowed the right of representation to other third party lawyers, clients will need to develop systems to best protect their UK solicitors’ and barristers’ advice from disclosure in matters before EU local courts and the European Commission, such as seeking representation by EU-admitted lawyers and ensuring that legal advice is clearly marked as provided by an EU-admitted lawyer.
This state of play will have an impact for clients not only on contentious issues but also when a client seeks to be represented before a local governmental authority or where they look to register EU intellectual property rights in the EU as well as in the UK. They may indeed need to choose a law firm where both EU and non EU admitted lawyers work together. Reversely, EU lawyers will no longer be able to register UK intellectual property rights for their clients from 1 January 2021.
There is also a risk that this could apply to ongoing proceedings in the EU member states. If privilege protection disappears for thousands of UK solicitors who advise on matters of UK and EU law, it is unclear how EU courts will address privilege questions around communications with UK solicitors that occurred prior to Brexit; communications between EU-admitted solicitors and those who are only UK-admitted; and investigations undertaken by UK-admitted solicitors that relate to the defense of a matter before a EU body.
Client and lawyers alike will need to focus on those issues in their proceedings and also any new engagement letter. The letter should make it clear that non EU-admitted lawyers are there to assist, but they should not lead the proceedings (when this applies) or the representation (such as providing legal advice) of EU law (including national laws there) or consequences on EU law.
For their part, UK lawyers will need to be aware of the risk of losing the privilege, such as making comments regarding EU related implications of UK legal issues. Lawyers could also find that they lose the legal privilege if they work in-house for certain EU companies.In Europe, internal documents generated exclusively to obtain legal advice (for example summaries of issues a company is facing) may attract privileged status in Europe but only if the purpose is to send these internal documents to an EU admitted lawyer. Likewise, if you make a summary of legal advice received from a solicitor or barrister which also covers EU or EU national laws, that document could benefit from the privilege but not if it comes from a non-EU admitted lawyer on a matter of EU or national laws in Europe.
Forwarding privilege information to UK solicitors will also be a problem, unless they are themselves also EU admitted lawyer.
Legal professional privileges is one of the core pillars of the rule of law. Let’s hope that Brexit will not affect it too much. Watch this space!