THE EDUCA T ION , LICENSING , AND TRAINING OF LAWYERS IN T HE EUROPEAN UNION , PAR T I: CROSS -BORDER PRAC T ICE IN T HE ME mb ER ST A T ES by Julian Lonbay IN T RODUC T ION authorities cope with cross-border practice in the context of this new European Community (EC) law Lawyers have an important service role to play in the environment. Lastly the article delves into the train- societies within which they work. They are the key ing regimes operating in Europe to see how the EC protectors of fundamental rights and freedoms, they and the European dimension are having an impact play a pivotal role in the life of the justice system, and on them. In the process, the role of the Council of they are vital for the promotion and protection of the Bars and Law Societies of Europe (CCBE) will be rule of law. For these reasons, European Union (EU) mentioned as appropriate. member states and other countries regulate entry into the practice of law in the interests of the citizens What Is a “Lawyer” in Europe? and the clients for whom lawyers act. The licensing authorities strive to ensure that the lawyers admit- There are about 50 independent states in Europe, ted to practice have the appropriate competence and within a land mass slightly larger than that of skills for use in the service of society. the United States, depending on how one defines “Europe.” There are well over 700 million inhabit- These national licensing processes are primarily ants, and they are served by more than 700,000 designed to fit the lawyers normally present and pro- lawyers. duced within the country or region. Thus it is hardly surprising that applying these processes to non- There are several distinct legal traditions operat- nationally trained lawyers and to lawyers trained ing, the most notable and well-known ones being in one jurisdiction who seek to practice in others the common law systems and the civil law systems. causes some difficulties to arise. Similarly, a student Each country has its own legal order and traditions with a law degree from one country who seeks entry when it comes to legal education and training and into another country’s legal training process may the licensing of lawyers. Indeed, both the tasks encounter obstacles. This article elaborates on and performed by lawyers and the professions that they explains some of these difficulties and obstacles and operate within vary from state to state. Thus one the attempts to overcome them. cannot easily talk of a European mode of delivering legal education and training;1 moreover, the system The article first outlines the nature and variety for licensing lawyers varies from state to state, and of legal professions active in Europe with a brief indeed within states. explanation of the structure and nature of the new European legal order which emerged after World There are some similarities, however. Those War II. Next covered is how European licensing European individuals who wish to practice in a legal 6 The Bar Examiner, November 2008 profession must typically study law at a university also gave legal advice and occasionally appeared in and then undertake practical legal training at a spe- the lower courts to represent clients. If litigation was cialized legal training institute, followed, almost in prospect or if they needed specialized legal advice, everywhere now, by a period of practical experience solicitors would often refer their cases to barristers. with a qualified legal professional, and then become This picture has now blurred, as solicitors can now licensed to practice, often by passing an examina- become solicitor-advocates with full right of represen- tion. So there are typically academic and profes- tation even in the highest courts, and barristers can sional stages to this pre-licensing training and, in now, in many circumstances, be approached without particular, a fairly lengthy the medium of a solicitor. period of apprenticeship. The [T]HERE ARE T YPICA ll Y ACADE M IC AND Moreover, bear in mind that professional stage of training PROFESSIONA L S T AGES T O T HIS PRE - in the United Kingdom alone differentiates the European there are six distinct legal L ICENSING T RAINING AND , IN PAR T ICU L AR , legal training scheme from professions, each with its A FAIR L Y L ENG T HY PERIOD OF APPREN T ICE - that found in the United own professional body, regu- SHIP . THE PROFESSIONA L S T AGE OF T RAIN - States. It accounts for the rel- lators, and rules by which it ative lack of “clinical” legal ING DIFFEREN T IA T ES T HE EUROPEAN L EGA L operates, and this is just one education in European law T RAINING SCHE M E FRO M T HA T FOUND IN of the many countries within schools. The EU does not T HE UNI T ED ST A T ES . IT ACCOUN T S FOR T HE the European Union. have authority over the con- RE L A T IVE L ACK OF “C L INICA L ” L EGA L EDU - Contrast the situation tent of education, and states CA T ION IN EUROPEAN L AW SCHOO L S . in the UK with that of, are, in large measure, free say, Germany. Here the to prescribe their own entry Rechtsanwalt (lawyer) takes on both of the roles routes to the legal professions. Yet as this article will which in England are divided between solicitors show, there are now “European” entry routes along- and barristers (although less divided these days). side the national ones and, as will be outlined in Part However, much transactional work involves another II of this article, the EU is beginning to have a major profession, that of notary public (Notar). The notary impact on university-level education across Europe public has a mandatory function in, for example, the despite its lack of formal authority over this matter. handling of real estate transactions, something that How Are Legal Services Delivered in Europe? in England might be dealt with by a solicitor or by There is great variety in how legal services are deliv- a new breed of professional created in England and ered within the EU states. For example, in the United Wales not long ago called the licensed conveyancer. Kingdom, the legal profession is divided into solici- Bear in mind that each of the 16 local jurisdictions, tors and barristers (the latter are called advocates in or Länder, in Germany has its own Ministry of Justice Scotland). Traditionally, the profession of barrister and its own rules for admission to the Bar. One can provided expert advice and representation in courts see that the task of delivering legal services involves (especially in the higher courts, for which barristers different types of legal profession, depending on used to retain a monopoly). The solicitor, by tradi- which state(s) or region(s) one is doing business in. tion, was involved more with transactional law but One can also see that there are many different legal Lawyers in the European Union, Part I 7 actors on the scene in Europe, with different spheres This regime forced the leaders and governments of competence. Each of the legal professions has a of the member states of the EEC to meet regu- unique education and training pathway to access larly and resulted in a net of integrating rules that the profession and each has separate procedures for meant the economies of the countries were increas- becoming a lawyer. ingly enmeshed. The regular contacts at many levels began to allow some mutual trust to emerge. Sometimes the decision-making procedures work The Structure of the European Union rather slowly; with 27 countries working together and Its Legal Order in 23 official languages, progress is not always At this point it might seem a vain hope to have any as swift as might be hoped. Agreements some- European-level involvement with the education and times can only be reached very slowly and with training of lawyers, let alone their regulation or rules many compromises along the way. On the other on access to the professions. However, a series of hand, over time decisions do get made, and there political developments has seen the emergence, ini- are now over 95,000 pages of European-level tially in western Europe but now reaching eastward, legislation. of the European Union. The EU currently comprises 27 states, with several others also bound, through The decision-making process has been altered sets of treaties, to its rules. In the late 1940s, ravaged and improved by a series of treaty changes. The by war and encouraged by American support and Single European Act of 1986 extended the use of hopes of economic resurrection, a small group of qualified majority voting in the Council. The role six European states started to integrate their coal of the now directly elected European Parliament and steel industries by means of the European Coal was extended in successive treaties, and the and Steel Treaty of 1951. This partial integration was Parliament now has powers of co-decision with the followed in 1957 with the Treaty of Rome, which Council in many areas. The Treaty of Maastricht, created the European Economic Community (EEC). which came into force in 1993, created the EU. More states joined the initial six in successive waves The EU includes the EC. (The word “economic” of accession. The first to join were the United was dropped from the name at this stage as it Kingdom, Denmark, and Ireland in 1972.