Mine? Essay on the EU's Free Movement of Services

This morning I had to print an essay I wrote a couple of weeks back. After I printed it and was scanning it, I thought, "Oh no! Tessa must have saved her essay over mine!" because it was so well written. It turns out that it *was* mine after all.

I don't mean to toot my own horn, but am posting the essay here. As always, when I cut and paste my essays from Microsoft Word, the footnotes and citations do not transfer. If you need cites, please post a comment and I will provide them.

Free Movement of Services (Freedom of Establishment)

One of the pillars of the European Union is the free movement of services (the Freedom of Establishment) within the twenty-seven member states. Many times, this is not controversial (for example, if a French baker wanted to open a bakery in Sofia). However, at other times, states obstruct the free movement of services within their borders until sanctioned by the European Court of Justice. The free movement of legal services required litigation and much negotiation to clarify in what manner member states may regulate admission to the profession without such regulation being an unreasonable burden on the free movement of services.

The regulation of the legal profession differs in many respects from other services. This is because, unlike the baking of bread, the law differs within each territory. States have an interest in ensuring the competency of the members of the bar and protecting their citizen consumers from the potential damage caused by incompetent attorneys practicing with unfamiliar laws in an unfamiliar language. At the same time, members of the legal profession typically are considered officers of the court. As such, courts are cautious in who they allow to represent their institution.

Regulation can take many forms, from bar entrance requirements to the regulation of attorney fees (thereby impeding the free market system and free competition). Regulation by member states is not prohibited, but must serve an important and justifiable state interest; and the regulation must be narrowly tailored to achieve the interest in a way that does not favor their own citizens over citizens of other member states.

Ultimately, after over 30 years of wrangling, permissible regulation of the legal profession under EC/EU treaties was determined to be those that guaranteed consumers competent legal council, but that did not discriminate against foreign attorneys. For example, member states may not require residence or registration with the professional organization in the host member state, but may require that attorneys “observe the rules of professional conduct of the host member state without prejudice to his [home state] obligation.” Some of the basic “rules” governing movement of legal services have been established as follows:

• Member states must mutually recognize the comparable diplomas and professional licensing of other states.

• Attorneys may immediately practice under their home state titles (i.e., a “solicitor” from the U.K. practicing under that title in Rome) or under their migrant state’s title after a suitable period of supervision by a competent attorney within the host state.

• “A migrant lawyer practicing under his home country professional title may ‘give advice on the law of his home Member State, on Community law, on international law and on the law of the host Member State.”

The EU portability differs greatly from the U.S. system. In the United States, each state establishes guidelines for admission to the bar. Another state is not required to accept another state’s attorney licensing and allow that attorney to practice within its jurisdiction. If an attorney wishes to move from one state to another within the United States, that attorney must meet the entrance requirements of the bar of his new state, including taking another bar exam, if required by that state. Of course, for members of the bar of at least one state, practicing solely in Federal Court, this limitation is of no matter because one can practice in any Federal Court in the country so long as one is admitted to the bar in at least one state. However, it is rare for attorneys to have a practice area limited to solely Federal Court and, at a minimum, the vast majority of attorneys are licensed in the states where they reside and have their offices.

The authors of the Syracuse article (from the class reading) believe that “while taking a procedurally different course from that followed in the European Union, the bottom line goals of the EU and the United States are substantially similar.” I disagree. The European Union was developed in order to enhance security and economic vitality of the European Union member states. For this benefit, member states have been willing to exchange a certain amount of their sovereignty, including the right to regulate their own legal professions as they saw fit. Member states must now prove that their regulations are justifiable in relationship to the EC pillar of the free movement of services. States within the United States have no such motivation to cooperate with other states of the union. In fact, the ABA proposed guidelines regarding proposed attorney licensing portability specifically reject a “single nation-wide law license that would eliminate state jurisdictional restrictions.” This rejection cannot be justified by the notion that laws within the individual states vary so much that attorneys cannot be trusted to apply the proper law when practicing. Aside from Louisiana, law and procedure within the other 49 states are substantially similar with only minor variations. Therefore, the rejection of a single nationwide law license can only be based on individual states jealously guarding and protecting their sovereignty, even at the expense of efficiency and productivity.