European Lawyers practising in the UK

European Lawyers practising in the UK

Issued on 22 April 2016

Purpose of this guidance

This guidance will help you if you are a European lawyer and you wish to practise in the UK, either temporarily or on a long-term basis.

It deals with the legislation which gives European lawyers the right under European Union law to practise in the UK, and sets out the regulation and rules which will apply to you if you decide to register with us as a registered European lawyer (REL), in accordance with the Establishment Directive.

It explains the implications of the amendments to the rules governing European lawyers registered with us which were made to the SRA Handbook on 1 April 2015. The purpose of this amendment was to remove unnecessary regulation of law firms which are based in other European Union Member States, but have an office in England & Wales in which one or more RELs are based, whilst still maintaining necessary public protections and the rights granted by the Establishment Directive.

The amended rules allow a REL to be an owner, manager or employee of a European law firm with an office in England & Wales, without the need for that firm to be authorised by us, provided the firm meets the definition of an 'exempt European practice' (EEP).

Finally, this guidance will be useful if you are an owner or manager of a European law firm and you are planning to open an office in England & Wales and you wish to consider the various options before determining the appropriate structure for your practice.

Status

This guidance is not mandatory. However, if you do not follow it, you may be required to show how you have complied with the regulatory requirements set out in the Handbook.

Relevant rules and law

The relevant legislation which affects the position of European lawyers who wish to practise in England & Wales is as follows:

  • The Lawyers' Services Directive (77/249/EEC) – this sets out the rights of European lawyers to practise in the UK under their professional title on a temporary basis
  • The European Communities (Services of Lawyers) Order (S.I. 1978 no. 1910) - this implemented the Lawyers Services Directive in England & Wales
  • The Lawyers' Establishment Directive (98/5/EEC) – this sets out the rights of those European lawyers who meet the criteria, to practise in the UK on a permanent basis under their home state professional title (the Establishment Directive)
  • The European Communities (Lawyer's Practice) Regulations 2000 – these implemented the Establishment Directive in England & Wales and Northern Ireland (the Establishment Regulations)
  • The Legal Services Act 2007 – this regulates who may provide reserved legal activities (ie the exercise of a right of audience, the conduct of litigation, reserved instrument activities, probate activities, notarial activities and the administration of oaths) as defined in Schedule 2 of the Act(the reserved legal activities)
  • The SRA Handbook 2011 - this sets out the regulatory provisions which apply to you if you register with us as a REL (the Handbook)

Part 1: European Lawyers Practising in England and Wales: the legal framework

1.1 Practising on a temporary basis

Temporary practice by European lawyers in England & Wales is straightforward.

If you are established in another member state and you are a practising member of one of the professions specified in the Directive, the Lawyers Services Directive allows you to provide legal services, which are otherwise reserved to UK lawyers, in the UK on an occasional basis.

To take advantage of the Directive before courts and tribunals in England & Wales, you must throughout the proceedings be instructed and act in conjunction with an advocate, barrister or solicitor who is entitled to provide that service.

We do not require you to notify us of your intention to practise here on a temporary basis, nor will you be regulated by us.

1.2 Practising on a permanent basis

The Establishment Directive gives European lawyers the right to practise law on a permanent basis in another member state (the 'host' state), under their home state professional title.

This is subject to registering with a 'competent authority' in the host state (see below). Once registered, you will be regulated by that competent authority and you must comply with the rules governing the local profession (Article 6).

The Directive will apply to you if:

  • you are a national of an Establishment Directive state (ie the EU, the European Economic Area or Switzerland), and
  • you are entitled to practise as a member of one of the legal professions listed in Article 1 of the Directive, and
  • you will be practising in the UK under your home title on a permanent basis (see below), and
  • you are not a member of one of the UK professions listed in Article 1 of the Directive.

For a list of the participating states and the relevant legal professions (including those of the UK), see Appendix 1

If you meet the above conditions, you must register with a competent authority before you start practising in the UK, regardless of the way in which you intend to practise (i.e. whether you will be practising in-house or in private practice; whether you will be conducting reserved activities or non-reserved activities; and whether you will be practising the law of your home state, of England & Wales or any other law).

It is a criminal offence to wilfully pretend to be a registered European lawyer, or to adopt any title or description that implies that you are a registered European lawyer, if you are not (regulation 21 Establishment Regulations). It is also a criminal offence to provide reserved legal activities if you are not entitled to do so (s14 LSA).

Registration with a UK 'competent authority'

Although the UK is a single member state, it has three separate legal jurisdictions – England & Wales, Scotland and Northern Ireland.

In each jurisdiction, there are two branches of the profession – solicitors and barristers (or 'advocates' in Scotland).

The SRA and the Bar Standards Board are the competent authorities for the solicitor and barrister professions in England & Wales. The others are the Law Society of Scotland, the Faculty of Advocates (Scotland), the Law Society of Northern Ireland and the Bar Council of Northern Ireland.

You are only required to register with one competent authority in the UK. If you wish, you may register in more than one of the UK jurisdictions, but you cannot be registered with one of the bodies regulating solicitors and one of the bodies regulating barristers at the same time.

Choice of competent authority

You are free to decide which competent authority you wish to register with. The only exception is if you are a solicitor or barrister of the Republic of Ireland, in which case you must register with one of the law societies or one of the bars respectively.

Whichever competent authority you choose, you will acquire rights of practice similar to that legal profession (including the right to do the work reserved to the local profession in that jurisdiction, subject to certain restrictions in specified proceedings) and you will be subject to the rules, regulation and discipline of that competent authority.

In most cases, therefore, your choice is likely to depend on the jurisdiction in which you intend mainly to practise and the type of work you wish to undertake. For example, if you will be based in England & Wales, but choose to register with the Law Society of Scotland, you would only be able to undertake work which Scottish solicitors are permitted to do in England & Wales.

Practising on a permanent basis

You do not have to intend to remain in the UK indefinitely in order to be 'practising on a permanent basis'. You will come within the Establishment Directive if you mean to spend a substantial period of time here.

You can find further guidance on what 'practising on a permanent basis' means in Appendix 2, but remember – you may be committing criminal offences if you are not registered when you are required to be. If, therefore, you are not sure whether you will be 'established' here, it may be advisable to register.

You can contact the Professional Ethics guidance team for help on this point.

1.3 Lawyers to whom the Establishment Directive does not apply

If the Establishment Directive does not apply to you because you do not meet the criteria - for example, because you are not an EU national, or you are dually qualified as a UK solicitor or barrister, or you are an avocat stagiaire - then subject to your home rules, you are free to set up your own practice in England & Wales and to practise under your home professional title in the UK on a permanent basis.

However, you will not have the same rights as a lawyer registered under the Establishment Directive. You will not, therefore, be able to provide any of the reserved legal activities, but you can practise the law of your home state, advise on English and Welsh law and provide unreserved legal services.

Part 2: Registration with the SRA

2.1 Applying for registration

To apply to become a REL with us, you must first register an account on mySRA.

You will then be able to access the application form on-line.

In order to register, you will need to get a certificate of attestation from your home Bar(s) or law society. This must state:

  • your date of admission
  • whether there is a probationary or training period after admission – for example, a stage
  • that your name appears on the register of the body which is providing the certificate, and that you are entitled to practise, and
  • that there are no disciplinary orders or pending proceedings against you (or if there are, the certificate should provide details)

In order to comply with our rules, you must disclose any information in relation to your disciplinary record, character or suitability that is relevant to your application.

Renewal of your registration

You must renew your registration as a REL each year on 1 November. Read more information about the renewal process and the fee payable.

You must also pay an annual contribution to the Compensation Fund. However, Article 6.3 of the Establishment Directive allows you to apply for a full or partial exemption from this requirement if you can demonstrate

  • that you are covered by a similar fund in your home state and
  • that fund is equivalent, or partially equivalent, in respect of its terms and extent of cover.

Notifying us of any change to your practising address

You must inform us of any change to your practising address within 14 days. You can do this via mySRA.

Remember:

To remain on the register as a REL, you must at all times remain entitled to practise under you professional title in your home state. If you fail to do so, your registration will expire (regulation 10.1(b)(ii) of the SRA Practising Regulations 2011).

This is likely to mean that you must remain on the register and continue to pay any fees required in your home state.

2.2 Practice rights and restrictions

Registration with us as a REL gives you the following rights, subject to compliance with our rules (see heading 3.1 below):

  • to practise anywhere in the UK with practice rights similar to those of a solicitor of England & Wales
  • to administer oaths and declarations in England & Wales and to use the title 'Commissioner for Oaths'
  • to provide reserved instrument activities, including reserved conveyancing services (subject to certain limits – see Restrictions on reserved legal activities below)
  • to provide reserved probate services (subject to certain limits – see below)
  • to provide litigation and advocacy services, together with the ability to acquire a higher courts qualification in order to exercise rights of audience in the higher courts (subject to the conditions referred to below)
  • to do immigration work
  • to do publicly funded work in England & Wales, subject to securing a legal aid contract
  • to provide financial services in the UK as part of your legal practice in an SRA-regulated entity, to the extent permitted under the SRA Financial Services (Scope) Rules 2001
  • to apply for admission as a solicitor, provided you meet the requirements under Article 10 of the Establishment Directive and Part V of the Establishment Regulations
  • to become a member of the Law Society (the representative body for solicitors) and to vote and stand for office in Law Society elections

Restrictions on Practice: reserved legal activities

Although you are permitted to provide the reserved legal activities referred to above, these are subject to the following restrictions:

  • Litigation - You are entitled to provide advocacy services before courts and tribunals in England & Wales (other than before the higher courts, unless you have a higher courts qualification), and to conduct litigation, but in each case you must be instructed together with a solicitor or barrister who is entitled to undertake that activity. The solicitor or barrister may be a member of your own firm.
  • Conveyancing - You are only entitled to prepare instruments and lodge documents relating to the transfer or charge of land in England & Wales if you are a member of a profession listed in Regulation 12 of the Establishment Regulations (see Appendix 2)
  • Probate - You are only entitled to prepare papers on which to found or oppose a grant of probate or letters of administration if you are a member of one of the professions listed in Regulation 13 of the Establishment Regulations (see Appendix 2)

Part 3: SRA regulation

3.1 Ways of practising

The ways in which you are permitted to practise as a REL, either in England & Wales or in the rest of the UK, are set out in rules 2.1 and 2.2 of the SRA Practice Framework Rules 2011 (PFR) respectively.

In England & Wales, you may practise in any of the following ways:

  • as an in-house lawyer employed by a non-authorised individual, business or organisation
  • in an authorised body – ie a law firm which has been authorised by us as an authorised body. You may practise in an authorised body as:
    • a sole practitioner
    • a manager (ie as a partner, if the firm is a partnership; as a member, if the firm is an LLP; or as a director if the firm is a company), or as an interest holder in the firm
    • an employee
     
  • in an authorised non-SRA firm – ie a law firm which is authorised by one of the other approved regulators, or
  • in an EEP

More information on each of these ways of practising is set out below.

3.2 Practising as an in-house lawyer

Under our rules, you may practise as a salaried lawyer in the employment of a non-authorised individual, business or organisation (eg in commerce and industry, law centres, trade unions, public service, non-lawyer professionals and foreign law firms), even if you are not permitted to practise as an in-house lawyer in your home state (Article 8 of the Directive).

As an in-house lawyer, your client is your employer. As a general rule, you are only allowed to do work for your employer and not for third parties, such as your employer's clients or customers. There are, however, some limited exceptions to this rule and these are set out in rule 4 PFR.

3.3 Practising in an Authorised Body

The rule permits you to practise in a law firm or entity which has been authorised by us as an 'authorised body'.

Setting up a new firm or opening a branch office in England & Wales

If you are proposing to set up a new firm, or to open a branch office of your home practice, then unless your firm comes within the definition of an EEP (see paragraph 3.5 below), the firm will need to be authorised by us before you can commence practising through it.

Types of authorised bodies

Your firm may be authorised by us as:

  • a recognised sole practice You will need to apply for authorisation as a recognised sole practice if you intend to practise as a sole practitioner (but note – if you wish to practise through a company or a limited liability partnership (LLP), then you will need to apply for authorisation as a recognised body or a licensed body)
  • a recognised body You will need to apply for authorisation as a recognised body if the firm is a traditional law firm where the managers and owners are lawyers (but note - a recognised body can only provide those services referred to in rule 13.2 PFR. If you wish to provide other non-legal services, you will need to apply for authorisation as a licensed body)
  • a licensed body (often referred to as an 'alternative business structure' or ABS) You will need to apply for authorisation as a licensed body if the managers and/or owners of your firm will be a combination of authorised lawyers, and either non-lawyers and/or foreign lawyers who are not registered with us as either RELs or registered foreign lawyers.

    Unlike a recognised body, a licensed body may also be a multi-disciplinary practice (ie in addition to providing legal services, it can also provide non-legal services).

In the case of a recognised body or a licensed body, the firm may be set up as a partnership, an LLP or a company, but only of a type which complies with the conditions set out in rule 15 PFR.

Applying for authorisation as a Recognised sole practice

To apply for authorisation as a recognised sole practice, you must:

  • be 'qualified to supervise' or apply for (and be given) a waiver of this requirement. For more information, see Other key conduct requirements below.
  • have an office in England & Wales from which your firm carries on practice
  • have professional indemnity insurance cover, unless you obtain a full or partial exemption from us. For more information, see Other key conduct requirements below.

View the relevant form and further guidance in respect of your application.

Note – There are some limited circumstances when applying for authorisation as a recognised sole practice is not required – see rule 10 PFR.

Applying for authorisation as a Recognised body or a Licensed body

Your practice may take the form of a partnership, an LLP or a company, but in order to be authorised as either a recognised body or a licensed body, the entity must:

  • comply with the fundamental requirements set out in rule 13 PFR (for a recognised body), or rule 14 PFR (for a licensed body)
  • comply with rule 16.1 and 16.3 PFR in respect of its managers if you wish to be authorised as a recognised body, or rules 16.1, 16.2 and 16.3 PFR if you wish to be a licensed body
  • fulfil the conditions for authorisation set out in Rule 6.2 of the SRA Authorisation Rules 2011, which includes:
    • the need to nominate a designated compliance officer for legal practice (Colp) and a compliance officer for finance and administration (Cofa). Read more information.
    • compliance with, or evidence that you are exempt from, the SRA insurance and compensation fund requirements (see Other key conduct requirements below)
     

In addition, at least one manager must be qualified to supervise.

Approval

Unless a person is deemed to be approved, the managers and 'owners' of the body, together with the Colp and Cofa, must be approved by us before they can take up their positions, irrespective of where they are based (for the definition of an 'owner' in this context, see the Glossary. For more information on who is deemed to be approved and the conditions which must be met, see rule 13 PFR.

View the relevant application forms and further guidance.

3.4 Practising in an authorised non-SRA firm

Rule 2.1 PFR allows you to practise through a firm regulated by one of the other regulators approved under the Legal Services Act 2007.

You will need to check with the regulator in question as to whether their rules allow you to practise in the manner you wish.

Note also that rule 2.1(d) PFR restricts the type of work which you, as a REL, may do.

3.5 Practising in an EEP

Provided your firm comes within the definition of an EEP, you may be a manager, owner or employee in a European law firm which has an office in England & Wales and the firm will not need to be authorised by us, even though you are practising from an office in England & Wales.

An EEP is defined in the SRA Handbook Glossary as:

  1. a lawyer's practice formed in an Establishment Directive state which is regulated as such in that State and which is a structure in which lawyers are permitted to practise in that State; and
  2. whose ultimate beneficial owners do not include any practising lawyers of England and Wales; and
  3. whose main place of business is situated and carried on in an Establishment Directive State other than the United Kingdom; and
  4. which does not carry on any reserved legal activity."

The words in italics are defined in the Glossary.

An EEP is essentially a European law firm which has an office in England and Wales for the purposes of practising its home country law, the laws of other jurisdictions or public international law. However, whilst the EEP can also advise on English & Welsh law, and do unreserved work, neither the EEP nor you as a REL practising in the EEP can provide reserved legal activities.

Structure of an EEP

Unlike an authorised body, an EEP may take any form permitted to lawyers in the Establishment Directive state in which it is formed and may be constituted under any law, including the law of England and Wales.

Main place of business

The main place of business of the European law firm will be the place in which the firm conducts most of its day to day business from which it derives the majority of its income. This may also be, but is not necessarily, the firm's principal place of business where its centre of administration and corporate authority (i.e control and management) is located, or its statutory seat (i.e. where it is formed).

Employing a solicitor in an EEP

An EEP may only employ a solicitor in its office in England and Wales as an in-house solicitor. This means that whilst the solicitor can act for the EEP itself, unlike a REL, he or she is not permitted to provide legal services to the EEP's clients, either directly or indirectly.

Applying for authorisation as an Authorised body

A European law firm, even though it comes within the definition of an EEP, may still choose to apply to us for authorisation as an authorised body, provided it meets the relevant criteria under our rules (see Authorised bodies above). This is so even if the firm does not provide reserved legal services, or only practises the law of its home state. Similarly, a European law firm which has been practising in England & Wales as an EEP may, at any time, apply to become an authorised body if it meets the criteria referred to above.

Our requirements

We do not regulate an EEP. Consequently, the EEP is not required to take any steps to register with us, nor is it required to provide any information.

However, if you are a REL and you will be practising in an EEP, you must email us and we will then send a note of the information we require from you regarding the EEP.

Whilst an EEP is not itself regulated by us, any RELs who are employees, owners, managers or members of the EEP will be regulated by us and must comply the Handbook (see Part 4 below). This is likely to mean that the EEP may need to take steps to enable the RELs to comply with their individual regulatory obligations.

Part 4: Compliance and the SRA Handbook 2011

Once you are registered with us as a REL, you must comply with the relevant provisions of the Handbook. The Handbook contains all the regulatory requirements which apply to your practice as a REL and, if you have set up an authorised body, to the entity itself. It is important to familiarise yourself with the Handbook.

You must also continue to comply with your home state rules. If there is a conflict between those rules and the Handbook, the Handbook will take precedence (Article 6 of the Directive).

With regard to in-house practice, or practice through an EEP, please note the following:

In-house practice

If you are a REL employed in-house by a non-authorised person, business or organisation, you must comply with the following in particular:

  • the SRA Principles
  • those provisions of the SRA Code of Conduct 2011 which apply to in-house practice (see the section entitled 'In-house practice' at the end of each chapter of the Code for the outcomes you must achieve).
  • the SRA Accounts Rules 2011, if you (as opposed to your employer) holds or receives client monies

The SRA Indemnity Insurance Rules 2013 will not apply to you as an in-house lawyer, but if you are providing legal services to a third party in accordance with one of the circumstances set out in rule 4, you must comply with rule 4.2 PFR.

Practising in an EEP

If you are a REL and you are practising in an EEP, you must comply with the following in particular:

  • the SRA Principles 2011
  • the SRA Code of Conduct 2011 - but you are only required to achieve those outcomes applicable to in-house lawyers (see the section entitled 'In-house practice' at the end of each chapter of the Code for the outcomes you must achieve)
  • the SRA Accounts Rules 2011 – the Accounts Rules do not apply to the EEP, but they do apply to you as a REL if you hold or receive client money; if so, you must comply with Part 7 of the Rules
  • rule 4.20 PFR - this sets out the conditions you must meet in order to practise through an EEP. Although the SRA Indemnity Insurance Rules 2013 will not apply to you, rule 4.20(b) does require your work to be covered by insurance which is reasonably equivalent to that required under the SRA Indemnity Insurance Rules 2011
  • rule 2 PFR (ways of practising) - you must remain compliant with rule 2 by ensuring that your firm continues to meet the definition of an EEP. If the composition of the firm changes in any of the following ways, the EEP will need to become an authorised body if you are to continue practising in the firm:
    • if a solicitor practising as such or another lawyer of England & Wales practising as such becomes a manager or an ultimate beneficial owner of the EEP, whether that individual is established in England & Wales or elsewhere
    • if a REL manager or owner of the EEP is admitted as a solicitor of England & Wales
    • if the main place of business of the EEP ceases to be in an Establishment Directive state other than the UK
    • if the EEP decides to provide reserved legal activities
     

If you are employed in an office of an EEP in England & Wales and you become a solicitor, either through the Qualified Lawyers Transfer Scheme or under Article 10 of the Directive, you will be deemed to be practising as a solicitor, even if you continue to practise solely under your home title (regulation 36(3) of the Establishment Regulations).

The effect of this is that once you are admitted as a solicitor, you will only be able to practise in the EEP as an in-house solicitor and will no longer be able to act for clients of the EEP, either directly or indirectly. To avoid this, the EEP would need to apply to become an authorised body before you are admitted as a solicitor.

Other key conduct requirements

Indemnity insurance

All authorised bodies must be covered by professional indemnity insurance in accordance with the SRA Indemnity Insurance Rules 2013. Broadly speaking, the required cover is

  • at least £3 million for any one claim in respect of an LLP, a limited company or a partnership in which one or more of the partners is a limited company or LLP, and
  • at least £2 million other types of authorised body

However, you can apply for full or partial exemption from the insurance requirements in certain circumstances.

A full exemption may be granted if you can show that under your home state rules, your firm has professional indemnity cover for the office in England & Wales, and that this cover is in all respects equivalent to the conditions and extent of cover required under our rules.

A partial exemption may be granted if you can show that there is cover under your home insurance, but the equivalence is only partial.

For more information, please contact the Professional Ethics guidance team.

Notepaper, emails and website

In addition to any statutory requirements, if you are intending to practise as a recognised sole practitioner or you are setting up an authorised body, the firm's letterhead, website and e-mails must:

  • show the words "authorised and regulated by the Solicitors Regulation Authority" and
  • the firm's registered name and number at Companies House if it is an LLP or company or, if the firm is a partnership or a recognised sole practice, the name under which it is licensed/authorised by the SRA and the number allocated to it by the SRA
  • if the name of any REL appears on the notepaper, identify the jurisdiction (local or national as appropriate) under whose professional title that REL is practising, give the professional title in the official language of that state and refer to the REL's registration with useg Paul van den Hoek, advocaat (Brussels), European lawyer registered with the SRA

If you are practising in an EEP and you are named on the EEP's notepaper as a lawyer or under your professional title, the notepaper must state that your employer is not regulated by the SRA.

Qualified to supervise

You, if you are setting up as a sole practitioner, or one of the lawyer managers if you are setting up a new practice as an authorised body, must meet the requirements of being 'qualified to supervise' in accordance with rule 12 PFR.

The purpose of the rule is to ensure that there is at least one lawyer in the practice responsible for running the firm who has the experience to ensure the firm is properly managed.

To be 'qualified to supervise', the individual must

  • have been entitled to practise as a lawyer for at least 36 months within the last 10 years, and
  • have undertaken 12 hours of management training (for more information on the type of training required, see rule 12 PFR, guidance note (iv))

The rule also applies to you if you are practising in-house and as part of your employment, you do legal aid work or supervise litigation or advocacy for members of the public, or you are employed in a law centre. In these circumstances, there must be at least one solicitor or REL in the in-house legal department who is qualified to supervise.

Part 5: Ceasing to be an Authorised body in order to be an EEP

If your firm is an authorised body, but wishes to cease being authorised in order to continue as an EEP, you will need to email us. We will send you the forms for you to complete with regard to the closure of your practice as an authorised body.

Before completing the process, we will need to be satisfied that the authorised body is being properly wound down as an SRA-regulated entity (SRA firm). We shall also issue you with a Notice of Intention to Revoke.

Please note that we will not refund any authorisation fees that you have paid.

With regard to the closure of your practice as an SRA firm, you may find it helpful to refer to the guidance in Closing down your practice. This outlines the steps you need to take in order to cease practising as an SRA firm. In particular:

  • You must inform all the clients for whom you are currently acting, in advance, of the change to your regulatory status. The clients should be given sufficient information about the regulatory position of the EEP, including the safeguards available, (eg in relation to indemnity insurance, the Compensation Fund and protection of client monies if these will be held by the EEP), to enable the client to decide on an informed basis whether to continue to instruct the firm or to instruct a different firm.
  • In view of the change in regulatory status, monies held by the firm as an SRA-regulated entity must not be mixed with monies held by the firm as an EEP. Once the firm ceases to practise as an SRA-regulated firm, you must continue to hold any remaining client money in your client account until such time as you can withdraw the monies in accordance with the SRA Accounts Rules 2011.If your firm intends to continue holding client money as an EEP, you will need to set up a different account to deal with monies held or received on behalf of clients of the EEP. You must ensure that there is some way of distinguishing the client account(s) of the firm as an SRA-regulated firm and those which it will have as an EEP.Client monies should not be transferred out of your SRA client account to the EEP's account unless you have your clients' informed consent.
  • You will need to submit a final accountant's report within 6 months of the date on which you cease to hold client money as an SRA firm.
  • With regard to the indemnity position, see the section entitled 'No successor practice' in the 'Closing down your practice' guidance.

Further assistance

If you require further help in relation to any of the matters referred to in this guidance, please contact the Professional Ethics guidance team.

Part 6: Becoming a solicitor

Article 10 of the Establishment Directive gives you the right to apply for admission as a solicitor without having to sit an exam, provided you are registered with us at the time of your application.

To take advantage of this right, you must either

  • have been 'effectively and regularly' practising UK law (which includes Community law) in the UK for three years (Article 10.1), or
  • have been 'effectively and regularly' practising as a lawyer in the UK for three years, but only practising UK law for part of that time (Article 10.3)

'Effectively and regularly' is defined in Article 10 and means without any interruption other than that resulting from the events of everyday life.

Alternatively, you may become a solicitor under the Qualified Lawyers Transfer Scheme. This will involve you sitting an exam, but there is no time limit on when you can apply. Failing to become a solicitor by this route does not prevent you from subsequently applying under Article 10.

Post admission

Your registration as a REL will be cancelled upon your being admitted as a solicitor.

Notwithstanding your admission as a solicitor, you may, if you wish, have a separate practice in the UK under your home professional title. However, you will be deemed to be practising as a solicitor (regulation 36(3) of the Establishment Regulations and rule 9.4 PFR), even if you are practising solely under your home professional title. You must therefore have a current practising certificate and comply with the Handbook, as well as your home state rules.

Part 7: Frequently asked questions

Dual qualification

Q1. I am an EU national and am dual qualified as both a French avocat and a US attorney. I wish to practise in the UK solely under my US qualification. Will I still have to register under the Establishment Directive?

A. No. You are only required to register if you are practising under your EU professional title. Provided you are not held out as a European lawyer, therefore, you do not need to register.

Registration in more than one UK jurisdiction; effect of becoming a solicitor

Q2. I intend to register as a European lawyer in both Scotland and with the SRA. If I subsequently qualify as a solicitor in Scotland, will this affect my registration as a REL in England & Wales?

A. No. If you are already registered with us as a REL when you become a Scottish solicitor, you will remain a REL for as long as you maintain your registration with us (regulation 2(3) of the Establishment Regulations).

EEPs

Q3. Do I need to register as a REL if I practise through an EEP?

A. Yes. If you meet the criteria in the Establishment Directive, you must register/continue to be registered as a REL. The fact that you will be practising through an EEP does not affect this requirement.

Q4. Can an EEP be owned or managed by non-lawyers?

A. An EEP can take any form permitted by the home jurisdiction of the RELs who work within it, including forms of practice involving joint ownership or management between lawyers, non-EU lawyers or non-lawyers, or a multi-disciplinary practice. A REL must at all times be entitled to practise in their home state and therefore can only practise through a firm which is permitted by their home country regulatory authorities.

Q5. Will I still have to pay an annual contribution to the Compensation Fund if my firm ceases to be an authorised body and becomes an EEP?

A. Yes. As a REL, your clients will still be able to make claims on the Compensation Fund. However, Article 6.3 of the Establishment Directive allows you to apply for an exemption or partial exemption if you can show that you are covered by a similar fund in your home state and that fund is equivalent in terms of the conditions and the extent of cover.

Appendix 1: Establishment Directive - Member countries, their specified professional titles and those entitled to provide reserved conveyancing and probate services

Member states under Article 1 of the Establishment Directive Professional titles specified under Article 1 of the Establishment Directive Permitted to provide reserved conveyancing services Permitted to provide reserved probate services
Austria Rechtsanwalt No Yes
Belgium avocat/advocaat/Rechtsanwalt No No
Bulgaria advokat No No
Croatia odvjetnik/odvjetnica No No
Cyprus dikegóros Yes Yes
Czech Republic advokát Yes No
Denmark advokat Yes Yes
Estonia vandeadvokaat No No
Finland asianajaja/advokat Yes Yes
France avocat No No
Germany Rechtsanwalt No Yes
Greece dikegóros No No
Hungary ügyvéd Yes No
Iceland (EEA) lögmaður Yes Yes
Irish Republic solicitor; barrister Yes Yes
Italy avvocato No No
Latvia zvērināts advokāts No No
Liechtenstein (EEA) Rechtsanwalt Yes Yes
Lithuania advokatas No No
Luxembourg avocat/Rechtsanwalt No No
Malta avukat; prokuratur legali No No
Netherlands advocaat No No
Norway (EEA) advokat Yes Yes
Poland adwokat; radca prawny No No
Portugal advogado No No
Romania avocat No No
Slovakia advokát/advokátka Yes Yes
Slovenia odvetnik/odvetnica No No
Spain abogado/advocat/abokatu/avogado No No
Sweden advokat Yes Yes
Switzerland Rechtsanwalt/Anwalt/Fürsprecher/Fürsprech/ avocat/avvocato/advokat No No
United Kingdom solicitor; barrister/advocate Yes Yes

Note: Although it is not referred to in Article 1, Gibraltar is treated as part of the UK for the purposes of the Establishment Directive. Consequently, if you are a Gibraltarian lawyer, you cannot register with any of the competent authorities in the UK. Your position will be the same as those who are not caught by the Establishment Directive (see paragraph 1.3 above).

Appendix 2: Practising on a permanent basis - guidance

'Practise on a permanent basis' in the UK does not mean that you must intend to remain in the UK permanently. For example, it would be an indication that you are "practising on a permanent basis" (or "established" in the UK), if:

  • you are ordinarily resident in the UK, or
  • you maintain a regular practice in the UK, or
  • you maintain an office, branch or agency in the UK, through which you carry on your professional activities and at which you maintain a regular personal presence, or
  • you are employed as a lawyer, and your ordinary place of employment is in the UK

You may be practising on a permanent basis, and are therefore required to register with a competent authority, irrespective of whether you are practising as a manager, a consultant or an employee in private practice, or as an in-house lawyer in the employment of a non-lawyer business or organisation.

Ordinarily resident

Whether you are ordinarily resident in the UK may depend to some extent upon what you intend. Thus, if you came here with the intention of settling here permanently or for a substantial period of time, then you will have been 'ordinarily resident' here from the time of your arrival.

However, even if you have not stated an intention to settle permanently in the UK, your actions might demonstrate that you have that intention – for example, if your only residence is in the UK, or you have settled your family and send your children to school in the UK.

Maintaining a regular practice or personal presence

If you are a manager or owner of a law firm in the UK, but you personally are based outside the UK full-time, you will not be maintaining a regular practice in the UK unless you regularly attend the firm's UK office, branch or agency.

It can sometimes be difficult to decide when you move between states. Our view is that:

  • a daily or weekly presence is likely to mean that you are maintaining a regular practice in the UK and a regular personal presence at the UK office
  • a fortnightly presence for the purpose of dealing with client matters, drafting documents, appearing in court, etc. might well be considered more than "occasional", and that you are therefore maintaining a regular practice in the UK and a regular personal presence at the UK office
  • a fortnightly presence for the purpose of attending managers' meetings and dealing only with matters of management of the firm might not amount either to regular practice in the UK or regular personal presence at the UK office

Ordinary place of employment and secondments

Whether the UK is your ordinary place of employment may to some extent be a subjective question. If you are normally based outside the UK, but you are seconded to an office in the UK for a defined period of time of less than twelve months - whether for training purposes, to further your personal development or to deal with a particular case or transaction – we will not usually regard you as practising here on a permanent basis.

However, if your secondment is for a defined period which is longer than one year, or it is for an indefinite or renewable period, you will be taken to be "practising on a permanent basis" in the UK and should register.

You may be committing criminal offences if you are not registered when required to do so. Moreover, failure to register would result in your being unable to recover any legal costs or fees (see Regulation 23 of the Establishment Regulations). In a borderline case, therefore, it may be safest to err on the side of caution register.