S.I. No. 58/1979 - European Communities (Freedom To Provide Services) (Lawyers) Regulations, 1979.

S.I. No. 58 of 1979.

EUROPEAN COMMUNITIES (FREEDOM TO PROVIDE SERVICES) (LAWYERS) REGULATIONS, 1979.

I, GERARD COLLINS, Minister for Justice, in exercise of the powers conferred on me by section 3 of the European Communities Act, 1972 (No. 27 of 1972), and for the purpose of giving effect to Council Directive No. 77/249/EEC of 22 March 1977,¹ hereby make the following Regulations:

1. (1) These Regulations may be cited as the European Communities (Freedom to Provide Services) (Lawyers) Regulations, 1979.

(2) These Regulations shall come into operation on the 1st day of March, 1979.

2. (1) In these Regulations, except where the context otherwise requires—

"the Council Directive" means Council Directive No. 77/249/EEC of 22 March 1977;

"lawyer established in the State" means a barrister or a solicitor established in the State and lawfully engaged in the practice of his profession;

"Member State" means a Member State of the European Communities;

"visiting lawyer" means any person who is established in a Member State (other than the State) and is entitled to pursue in that Member State the professional activities of a lawyer under a designation shown opposite the name of that Member State in the following list—

(1) OJ No. L78/17 26.3.77

(2) A word or expression that is used in these Regulations and is also used in the Council Directive has, unless the contrary intention appears, the meaning in these Regulations that it has in the Council Directive.

3. (1) Subject to the provisions of these Regulations, a visiting lawyer shall be recognised as a lawyer for the purpose of pursuing activities in the State by way of provision of legal services and, without prejudice to the generality of the foregoing—

( a ) as regards activities relating to the representation of a client in legal proceedings or before public authorities, he shall have the same right of audience as a lawyer established in the State, and

( b ) references in any enactment or statutory instrument to a barrister or to a solicitor shall be construed accordingly.

(2) Section 58 (3) of the Solicitors Act, 1954 (No. 36 of 1954), is hereby amended by the insertion after paragraph (f) of the following paragraph:

"( ff ) an act done by a lawyer to whom Council Directive No. 77/249/EEC of 22 March 1977 applies by way of provision of legal services within the limits and under the conditions laid down in that Directive, other than the preparation of a formal document for obtaining title to administer the estate of a deceased person and the drafting of a formal document creating or transferring an interest in land,".

4. When pursuing activities in the State by way of provision of legal services, a visiting lawyer shall use the professional title used in the Member State from which he comes, expressed in the language or one of the languages of that Member State, with an indication of the professional organisation by which he is authorised to practise or the court of law before which he is entitled to practise pursuant to the laws of that Member State.

5. (1) Activities relating to the representation of a client in legal proceedings or before public authorities shall be pursued in the State by a visiting lawyer under the conditions laid down for lawyers established in the State, save that he shall not be required to be resident, or registered with a professional organisation, in the State, or to hold a practising certificate within the meaning of the Solicitors Acts, 1954 and 1960.

(2) ( a ) A visiting lawyer pursuing the activities referred to in paragraph (1) of this regulation shall observe the rules of professional conduct of the State, without prejudice to his obligations in the Member State from which he comes.

( b ) In this paragraph "rules of professional conduct of the State" means, in so far as they govern the oral presentation of a case in court, the rules of professional conduct applicable to barristers. In all other cases, the rules of professional conduct applicable to solicitors shall apply. However, advocates and barristers from the United Kingdom shall always be subject to the rules of professional conduct applicable in the State to barristers.

( c ) Nothing in the first sentence of subparagraph (b) of this paragraph shall be construed as excluding a visiting lawyer who is in the salaried employment of a public or private undertaking from pursuing the activities aforesaid in relation to the representation of that undertaking.

(3) A visiting lawyer pursuing activities other than those referred to in paragraph (1) of this regulation shall remain subject to the conditions and rules of professional conduct of the Member State from which he comes without prejudice to respect for the rules, whatever their source, which govern lawyers established in the State, especially those concerning the incompatibility of the exercise of the activities of a lawyer with the exercise of other activities in the State, professional secrecy, relations with other lawyers, the prohibition on the same lawyer acting for parties with mutually conflicting interests, and publicity. The latter rules are applicable only if they are capable of being observed by a lawyer who is not established in the State and to the extent to which their observance is objectively justified to ensure, in the State, the proper exercise of a lawyer's activities, the standing of the profession and respect for the rules concerning incompatibility.

(4) In this regulation—

"conditions" means the rules and obligations (other than rules of professional conduct) provided for by law for the practice of their profession by lawyers;

"rules of professional conduct" means the rules and obligations relating to the practice of their profession by lawyers laid down by their professional bodies.

6. Where a visiting lawyer is pursuing activities in the State relating to the representation of a client in legal proceedings, he shall work in conjunction with a lawyer who is entitled to practise before the judicial authority in question and who would, where necessary, be answerable to that authority.

7. (1) ( a ) A competent authority may request a person who is pursuing activities in the State by way of provision of legal services to establish his qualifications as a lawyer.

( b ) In this paragraph "competent authority" means—

(i) (I) where the person concerned claims to be an advocate or barrister from the United Kingdom or another visiting lawyer, being a lawyer who proposes to present a case orally in court, the Benchers of the Honorable Society of King's Inns, and

(II) in any other case, the Incorporated Law Society of Ireland, and

(ii) where the person concerned is pursuing activities relating to the representation of a client in legal proceedings or before a public authority, the court or authority before which he is pursuing those activities.

(2) ( a ) In the event of non-compliance with the obligations referred to in regulation 5 of these Regulations and in force in the State, a competent authority shall determine in accordance with its own rules and procedures the consequences of such non-compliance, and to this end may obtain any appropriate professional information concerning the person providing legal services and shall notify the competent authority of the Member State from which the person comes of any decision taken. Such exchanges shall not affect the confidential nature of the information supplied.

( b ) In this paragraph "competent authority" means—

(i) (I) in the case of a complaint relating to an advocate or barrister from the United Kingdom or, so far as regards the oral presentation of a case in court, a complaint relating to any other visiting lawyer, the Benchers of the Honorable Society of King's Inns,

(II) in any other case, the Disciplinary Committee (within the meaning of the Solicitors (Amendment) Act, 1960 (No. 37 of 1960)), and

(ii) in so far as it is necessary to enable this paragraph to have full effect, the High Court.

(3) The competent authority in the State for the purpose of furnishing the information and receiving the notification referred to in Article 7 (2) of the Council Directive shall, in relation to a barrister established in the State and pursuing activities by way of provision of legal services in another Member State, be the Benchers of the Honorable Society of King's Inns and, in relation to a solicitor so established and pursuing such activities in another Member State, be the Incorporated Law Society of Ireland.

GIVEN under my Official Seal, this 22nd day of February, 1979.

GERARD COLLINS,

Minister for Justice.

EXPLANATORY NOTE.

These Regulations, which have been made under section 3 of the European Communities Act 1972 , give effect in the State to Council Directive No. 77/249/EEC of 22 March 1977 on the provision of services by lawyers. They come into operation on 1 March 1979.

Regulation 3 will enable a lawyer from another Member State (a "visiting lawyer ") to pursue professional activities in the State by way of provision of services, subject to the reservation to Irish lawyers of the preparation of formal documents for obtaining title to administer estates of deceased persons or for creating or transferring interests in land.

Under regulation 4 the visiting lawyer must adopt the professional title used in the Member State from which he comes and he will be subject to the legal and professional obligations set out in regulation 5.

Regulation 6 requires that, when representing a client in legal proceedings, the visiting lawyer should work in conjunction with an Irish lawyer entitled to practise before the court in question and answerable to that court.

Provision is made in regulation 7 for having the visiting lawyer's qualifications verified and for the consequences of any non-compliance with his legal and professional obligations.