What will Brexit mean for lawyers?

As Brexit looms on the horizon bringing new political drama with each passing day, law firms are reading between the lines of the government’s white paper. According the Bar Council of England and Wales, lawyers are set to lose their right to advise on EU law and even on certain aspects of UK law when on the soil of the E27.

If this is to be taken at face value, it means UK business that still need to operate under EU law will soon be unable to seek the advice of their trusted UK legal professionals. Instead, they will be forced to hire new lawyers from within the EU27 with whom they have never worked with before.

Just like most matters relating to Brexit, nothing is concrete yet – however, if we are to go ahead with the plans proposed in the white paper for a free trade agreement approach to legal services, barristers from England and Wales will lose their right to defend the UK government, British businesses and citizens of the country before the Court of Justice of the EU.

“This would be despite having been recognised in summer 2014 by the former president of the CJEU as providing some of the best advocates in the CJEU. This will be a huge loss to both the UK and the EU,” it says.

Sitting at 98 pages, the white-paper has been described by two of the country’s top lawyers as “vague” and “cleverly worded”. According to Barney Reynolds, leader of the governance and advisory practice at Shearman & Sterling, and Jonathan Herbst, global head of financial services at Norton Rose Fulbright, many questions are left unanswered despite the length of the document.

What’s more, the Bar Council – which represents some 15,000 lawyers in the country – has said the proposed free trade agreement approach to legal services is “disappointing”; they claim it will force legal professionals in the UK to negotiate different bilateral agreements on legal services with many of the other 27 (or 30 EEA) member states.

“Even if successful,” it said, “this would provide only a patchwork of rights and obligations, varying from country to country. All this will take many years, if it can be accomplished at all, and in the meantime UK clients will face additional difficulties and cost in ensuring access to justice in their dealings with the EU/EEA.”

The council has further warned that UK professions will be left “on the margins of co-operation” between bar associations in Europe. If the whitepaper becomes UK law post-Brexit, this could make it harder to maintain their market share. Not only would the UK risk losing the tax revenue generated from this activity, but it could quickly lead to an erosion of the influence our historic legal services sector holds in Europe and the rest of the world.

Following the release of the whitepaper, The Bar Council has now produced a draft international agreement on civil justice cooperation, which could be adopted by both the EU and the UK regardless of the outcome of the Brexit negotiations.