S.I. No. 697/2019 - Registered European Lawyers Qualifying Certificate Regulations 2019

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 10th January, 2020.

The Law Society of Ireland, in exercise of the powers conferred on them by the European Communities (Lawyers’ Establishment) Regulations 2003 ( S.I. No.732 of 2003 ) hereby make the following Regulations:

1. Citation and Commencement

(a) These Regulations may be cited as the Registered European Lawyers Qualifying Certificate Regulations 2019.

(b) These Regulations are intended to give effect to the Lawyers’ Establishment Directive as provided for in the 2003 Regulations.

(c) These Regulations shall come into operation on 1 January 2020.

(d) The Registered European Lawyers Qualifying Certificate Regulations are repealed with effect from 1 January 2020.

(e) These Regulations do not affect the provision of services by visiting lawyers (within the meaning of the European Communities (Freedom to Provide Services) (Lawyers) Regulations 1979 ( S.I. No. 58 of 1979 )).

2. Definitions

(a) In these Regulations, unless the context otherwise requires:

“applicant registered lawyer” means a registered lawyer making an application for a qualifying certificate;

“application” means the application in accordance with Regulation 8 of the 2003 Regulations delivered to the Registrar by an applicant registered lawyer for a qualifying certificate for the practice year, pursuant to Regulation 4 of these Regulations;

“application fee” means the registration fee, the contribution to the Compensation Fund, the contribution for the Legal Services Regulatory Authority Levy Fund, and other fees specified by Schedule 1 of these Regulations;

“Authority” means the Legal Services Regulatory Authority;

“Compensation Fund” means the fund maintained by the Society pursuant to Sections 21 and 22 of the 1960 Act;

“Competent Authority” means the Society;

“duly completed application” means an application which has been completed by the applicant registered lawyer in accordance with the instructions set out therein, and the Guidelines, and which is accompanied by the full payment of the application fee;

“EFT payment form” means the form made available by the Society to applicants who wish to pay the application fee by electronic funds transfer;

“Guidelines” means guidelines in respect of qualifying certificate applications as may be published by the Society from time to time;

“Law Directory” means the directory of solicitors, registered lawyers and firms published by the Society each year;

“lawyer” has the meaning assigned to it in the 2003 Regulations.

“Lawyers’ Establishment Directive” means Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998.

“member state” has the meaning assigned to it by the 2003 Regulations.

“practice year” means the calendar year;

“professional activities” has the meaning assigned to it by the 2003 Regulations;

“qualifying certificate” has the meaning assigned to it by the 2003 Regulations;

“register” has the meaning assigned to it by the 2003 Regulations;

“registered lawyer” has the meaning assigned to it by the 2003 Regulations;

“Registrar” means the registrar of solicitors for the time being appointed pursuant to Section 8 of the 1954 Act;

“registration certificate” has the meaning assigned to it by the 2003 Regulations;

“Regulation of Practice Committee” means the committee to whom functions of the Society pursuant to Part V of the 1954 Act, as amended and extended by Part VI of the 1994 Act, have been delegated by the Council of the Society;

“relevant date” means 1 February each year;

“relevant form” means the form of application for a qualifying certificate;

“Society” means the Law Society of Ireland;

“the 1954 Act” means the Solicitors Act 1954 ;

“the 1960 Act” means the Solicitors (Amendment) Act 1960 ;

“the 1994 Act” means the Solicitors (Amendment) Act 1994 ;

“the 2015 Act” means the Legal Services Regulation Act 2015 ;

“2003 Regulations” means the European Communities (Lawyers’ Establishment) Regulations 2003 ( S.I. No.732 of 2003 ) as amended by the European Communities (Lawyers’ Establishment) (Amendment) Regulations 2004 ( S.I. No.752 of 2004 , S.I. No.96 of 2008 and S.I. No.46 of 2015 ).

(b) Other words and phrases in these Regulations shall have the meanings assigned to them by the Solicitors Acts 1954 to 2015, the 2015 Act, the Lawyers’ Establishment Directive, or the 2003 Regulations where the context so permits.

(c) The Interpretation Act 2005 applies to the interpretation of these Regulations as it applies to the interpretation of an Act of the Oireachtas.

3. Requirement to hold a qualifying certificate

(a) Every registered lawyer (other than a registered lawyer defined in Section 56(3) of the 1994 Act), in the State shall be required to hold a qualifying certificate.

(b) Every registered lawyer is responsible for ensuring that he or she complies with Regulation 3(a). A claim by a registered lawyer that he or she relied on another party to apply for a qualifying certificate shall not be a defence to a failure to comply with Regulation 3(a).

(c) A qualifying certificate shall be the property of the registered lawyer, regardless of who has paid the application fee.

(d) It shall be an offence and professional misconduct on the part of a registered lawyer who fails to comply with Regulation 3(a). Where a registered lawyer fails to comply with Regulation 3(a) the Society may take any one or more of the following actions:

(i) refer the matter to the Authority;

(ii) make an application to the High Court;

(iii) report the matter to An Garda Síochána; and

(iv) any other action deemed appropriate by the Society.

4. Application for a qualifying certificate

(a) An applicant registered lawyer shall on or before the relevant date:

(i) deliver or cause to be delivered, a hard copy duly completed application to the Registrar at the Society’s premises at George’s Court, George’s Lane, Dublin 7; or

(ii) submit or cause to be submitted to the Registrar, a duly completed application in electronic form and in such format as may be amended by the Society from time to time which application shall include a relevant form duly completed in accordance with the instructions set out therein and full payment of the application fee; and

(iii) Provide confirmation of the continued registration of the registered lawyer with the competent authority in the home member state; and

(iv) Notify the Society of the registered lawyer’s home professional title.

(b) The Society may refuse to issue a qualifying certificate to a registered lawyer unless the registered lawyer has in force an indemnity against any losses arising from claims against the registered lawyer as required by Regulation 6(2)(b) of the 2003 Regulations, for the duration of the practice year.

(c) The Registrar shall, on receipt of an application pursuant to Regulation 4(a) of this Regulation and on the Registrar being of the opinion that there is or are no appropriate and reasonable ground or grounds for not doing so, cause to be issued to the registered lawyer concerned a qualifying certificate which shall be dated either –

(i) 1 January in the relevant year, where issued during the period beginning on 1 January in that year and ending on the relevant date, or

(ii) the date on which it is issued, where issued after the relevant date.

(d) Applications which are:

(i) not completed in accordance with these Regulations;

(ii) Not completed in accordance with the instructions set out therein;

(iii) not fully completed; or

(iv) submitted without full payment of the application fee;

shall be deemed incomplete and shall be returned to the applicant by the Society.

(e) Qualifying certificates shall only be issued following receipt by the Society of a duly completed application, full payment of the application fee and responses (which are deemed to be reasonably satisfactory) to any query raised thereon by the Society.

(f) Nothing herein shall prevent the Society seeking such other or further information or documentation as it considers appropriate prior to the issuance of a Qualifying Certificate including but not limited to information in relation to Continuing Professional Development where that is carried out in the home member state, or compliance with Regulation 10(3) of the 2003 Regulations.

(g) Qualifying certificates shall be dated the date on which the Society receives the duly completed application, full payment of the application fee or a response which is deemed to be reasonably satisfactory to any outstanding queries, whichever is the later, if received after the relevant date.

(h) Only one qualifying certificate shall be issued to each registered lawyer in any practice year.

(i) If a registered lawyer’s qualifying certificate is dated after the relevant date and that registered lawyer has provided professional activities in that calendar year before the date of the qualifying certificate, an application shall be made by that registered lawyer in accordance with section 48(3) of the 1954 Act to have his or her qualifying certificate backdated to 1 January of that year, or the date on which the registered lawyer commenced providing professional activities.

(j) Where an application under section 48(3) of the 1954 Act is required to be made to the President of the High Court, the Society, pursuant to the provisions of Section 25(2)(b) of the Solicitors (Amendment) Act 1960 shall be entitled to seek the costs associated with the application from each registered lawyer who applies to the President of the High Court to have his or her qualifying certificate backdated in accordance with Regulation 4(i), such costs to be measured by the President of the High Court.

(k) Only those registered lawyers who have received qualifying certificates by the 16th of February in that practice year shall be included in the Law Directory in respect of that practice year.

(l) A registered lawyer shall provide written notice to the Society before the relevant date where that registered lawyer held a qualifying certificate in respect of the previous practice year but does not intend to practise for all of the current practice year and such notice must include the following details:

(i) a statement that the applicant registered lawyer has ceased providing professional activities or intends to cease providing professional activities during the current practice year; or

(ii) a statement that the applicant registered lawyer will not be practising in the current practice year for any reason, including unemployment, career break, change of career, emigration, sick leave or maternity leave; or

(iii) a statement that the registered lawyer will not be providing professional activities until commencing on some date after the relevant date for any reason, including unemployment, career break, sick leave and maternity leave;

(iv) a current correspondence address and email address by which the Society may contact the applicant registered lawyer, where necessary.

(m) The Society may seek such further or other information or documentation as it considers necessary in respect of any notice received under Regulation 4(l) above.

(n) A registered lawyer shall immediately notify the Society in writing if there is any change in his or her practising status during the practice year.

(o) A registered lawyer shall immediately notify the Society in writing if he or she has applied for registration or has been registered in the register maintained by the competent authority specified in Regulation 4(1)(a) of the 2003 Regulations.

(p) A registered lawyer shall immediately notify the Society in writing if he or she has been notified of any i) withdrawal of, or intention to withdraw or ii) conditions applying to, the registered lawyer’s authorisation to practise under his or her home professional title by the relevant authority in the home member state.

(q) A registered lawyer shall provide written notice to the Society, in accordance with the provisions of Section 81 of the 1954 Act, if that registered lawyer has changed his or her place of business (or places of business) or firm, or employer (where the employer is not a solicitor) during the practice year and must include in such notice the previous and new place of business(es), date of leaving the former firm or employer, the date of joining the current firm or employer, and, the name and address of the current firm or employer.

(r) An applicant registered lawyer is required to complete an application in accordance with the Guidelines.

5. Where confirmation is required as to the content of an application

(a) The Registrar, at any time following delivery to the Registrar by a registered lawyer of an application (whether or not a qualifying certificate has been issued by the Registrar to the applicant registered lawyer pursuant to Regulation 4(c) of this Regulation), may, where the Registrar deems it appropriate and reasonable to do so, require the applicant registered lawyer to confirm in writing to the Society the accuracy of all or any specified part or parts of the application.

(b) Where, on receipt by the Society of a confirmation in writing from a registered lawyer required by the Registrar pursuant to clause (a) of this Regulation, the Registrar deems it appropriate and reasonable to do so, the Registrar may require the registered lawyer to attend before a meeting of the Regulation of Practice Committee to further confirm the accuracy of all or any specified part or parts of the application.

6. Misconduct of knowingly furnishing false and misleading information

A registered lawyer who knowingly furnishes information that is false or misleading in any material respect shall be guilty of misconduct.

7. The Application Fee

(a) The application fee shall be paid by the registered lawyer to the Society either by cheque, draft or by electronic funds transfer.

(b) A registered lawyer paying the application fee by electronic funds transfer shall include in the EFT payment form an identifiable specific reference that is either the registered lawyer’s name or the registered lawyer’s number and shall provide a copy of the EFT form to the Society with the application. Failure to include such a reference, and/or to provide a copy of the EFT form to the Society with the application, will result in the application being returned to the registered lawyer as incomplete, notwithstanding that the application fee may have been received by the Society.

(c) An applicant registered lawyer who pays the application fee by electronic funds transfer shall ensure that the application fee is paid to the bank account provided in the EFT payment form. The Society shall not be responsible for any delay in processing applications where payment has been made by an applicant registered lawyer to an incorrect bank account of the Society.

(d) A registered lawyer shall not be required to pay a membership subscription fee where that registered lawyer has been admitted to the Register of Registered Lawyers for a period of at least fifty years as of 1 January in that year.

(e) Where a registered lawyer who is admitted to the Register of Registered Lawyers during the course of a practice year applies for his or her first qualifying certificate during that practice year, the application fee shall be based on the number of full calendar months remaining in that practice year following the month of his or her admission to the Register of Registered Lawyers. That registered lawyer’s membership subscription fee in respect of that practice year (or part thereof) shall be at the reduced rate of twenty euro (€20).

(f) The registered lawyer who commences practice during the practice year on a date arising after the relevant date shall calculate the application fee based on the number of full calendar months, or any part thereof, remaining in the practice year including the calendar month in which the application for a qualifying certificate is made.

(g) The Society may, in its absolute discretion, issue a refund of some of the application fee to a registered lawyer who has had made an application to the Society requesting same. In order for a registered lawyer to be eligible for a refund of the application fee, he or she shall:

(i) notify the Society in writing immediately upon ceasing to practise; and

(ii) submit a fully completed qualifying certificate surrender form to be completed by the registered lawyer who is surrendering his or her qualifying certificate, together with the original qualifying certificate for the current practice year; and

(iii) Furnish the original of the qualifying certificate for the current practice year; and

(iv) make the application for a refund in the same practice year in which the registered lawyer ceased to practice.

8. Fee for copy of entry on File A, File B or File C

The fee payable to the Society by a person who applies to the Registrar, pursuant to Section 17 of the 1960 Act, for a copy of an entry on File A, File B or File C shall be as specified by Schedule 1 of these Regulations.

9. Collection and use of Personal Data

(a) The Society shall be entitled to collect and maintain personal data (“Personal Data”) relating to each registered lawyer, including but not limited to:

(i) name and contact details, including home address, practising address, telephone number(s), fax number, email address and post code;

(ii) date of birth;

(iii) credit card, debit card, or bank account details;

(iv) health records;

(v) where relevant, information relating to the commission or alleged commission of a criminal offence;

(vi) Law Society identification number;

(vii) educational background and academic qualifications;

(viii) any other personal data which is provided to the Law Society directly as part of the application; and

(ix) information concerning a solicitor arising from the carrying out by the Society of its regulatory functions under the Solicitors Acts 1954 to 2015.

(b) The Personal Data relating to a registered lawyer maintained by the Society may be used by the Society for administration, management, marketing, promotion of the solicitors’ profession and professional development purposes and in pursuance of the Society’s regulatory functions.

(c) Personal Data relating to any disciplinary processes pending or not yet dismissed against a registered lawyer may be provided by the Society to the Judicial Appointments Advisory Board (or relevant successor body), in respect of a registered lawyer who is being considered for appointment to judicial office by the Judicial Appointments Advisory Board (or relevant successor body).

(d) Personal Data may also be provided by the Society to the Authority in respect of a registered lawyer in order to enable the Authority to perform its functions.

10. Issue of duplicate qualifying certificate

Where a registered lawyer to whom a qualifying certificate for the practice year has been issued pursuant to Regulation 4(c) of these Regulations, certifies to the Registrar that his or her qualifying certificate has been inadvertently destroyed, lost or mislaid, such registered lawyer may apply to the Society for a duplicate original of such qualifying certificate on duly discharging the fee specified by Schedule 1 of these Regulations and on duly undertaking to the Registrar that, in the event of the qualifying certificate as originally issued being subsequently found in the course of the practice year, that same qualifying certificate would forthwith be returned to the Registrar.

11. Where conditions attached to qualifying certificate

(a) Where a qualifying certificate for the practice year is caused to be issued by the Registrar to a registered lawyer subject to a specified condition or conditions, the qualifying certificate shall be endorsed with the words (adapted as appropriate): “Issued subject to [a] specified condition[s] as annexed” and the Registrar at the same time shall cause to be issued to the registered lawyer concerned a separate document (deemed to be part of the qualifying certificate) headed with the Society’s crest and title and with the words (adapted as appropriate): “Annexe to qualifying certificate of [name of registered lawyer] of [a] specified condition[s] attached thereto and applicable as and from [date of commencement of applicability of the specified condition or conditions]” and setting out the text of each specified condition.

(b) Where the Society gives a direction pursuant to Section 59 of the 1994 Act that the qualifying certificate already issued to a registered lawyer for the practice year should, from a date that is 21 days after the date of receipt by the registered lawyer concerned of notification in writing by the Society of the giving of such direction, have effect subject to a specified condition or conditions, the registered lawyer shall (subject to the provisions of the said Section 59 of the 1994 Act as to the registered lawyer’s right of appeal to the High Court), within such period of 21 days, surrender his or her current qualifying certificate, and the Society shall, as soon as possible, reissue the qualifying certificate endorsed with the words (adapted as appropriate): “Issued subject to [a] specified condition[s] as annexed” and the Registrar at the same time shall cause to be issued to the registered lawyer concerned a separate document (deemed to be part of the qualifying certificate) headed with the Society’s crest and title and with the words (adapted as appropriate): “Annexe to qualifying certificate of [name of registered lawyer] of [a] specified condition[s] attached thereto and applicable as and from [date of commencement of applicability of the specified condition or conditions]” and setting out the text of each specified condition.

(c) Where a qualifying certificate issued or reissued to a registered lawyer for the practice year is subject to a specified condition or conditions as referred to in clause (a) or (b) of this Regulation 11:

(i) the registered lawyer concerned shall comply with the specified condition or each of the specified conditions, as the case may be, and shall ensure that he or she does not provide professional activities to any client of the registered lawyer in breach of such specified condition or conditions, whether or not any such client is made aware of such specified condition or conditions, and

(ii) the registered lawyer concerned, in any display by him or her of his or her qualifying certificate, shall display with equal prominence adjacent thereto, the annexe thereto setting out the specified condition or conditions to which his or her qualifying certificate is subject.

Signed on behalf of the Law Society of Ireland pursuant to Section 79

of the Solicitors Act 1954 .

Dated this 20 day of December 2019

MICHELE O’BOYLE,

President of the Law Society of Ireland.

SCHEDULE 1

within referred to

EURO