QLTS to emerge as sore point
- November 24, 2008
Statistics from the Solicitors Regulation Authority (SRA) say that around 20 per cent of solicitors who qualify as solicitors of England and Wales each year follow the “transfer route”. Available to lawyers who have qualified in and are citizens of EU member states and lawyers who have qualified in a number of named jurisdictions (where the legal system is based on the common law), this route is governed by the Qualified Lawyers Transfer Regulations (QLTR) and the Qualified Lawyer Transfer Test (QLTT). It is necessary for lawyers qualified in other jurisdictions to qualify as a solicitor in England and Wales in order to undertake unsupervised, aspects of conveyancing, probate, litigation and other areas of work that only solicitors and designated lawyers are allowed to do. On 11 November, the SRA sought views on proposals to introduce a new scheme that will replace the QLTR and the QLTT with the Qualified Lawyers Transfer Scheme (QLTS).
The move to review the conditions for transfer of foreign-qualified lawyers is the first in 18 years and reflects among other things, the establishment of the Solicitors Regulation Authority (with the core duty of regulating the solicitor’s profession in public interest), the coming into force of the Legal Services Act and the obligations under the WTO.
The objectives of the Solicitors Regulation Authority are set out under the Legal Services Act 2007. The protection and promotion of the public interest and the interests of the consumers of legal services, the adherence to “professional principles” such as independence and integrity, confidentiality and the maintenance of standards are among these objectives and underpin the proposals in question. They aim to strike a compromise between maintaining high standards of qualification for the solicitor’s profession which ensure that those who qualify have the necessary knowledge, skills and ability to perform their role, and diversity in the backgrounds of solicitors.
In its Consultation Document, the SRA also points to evidence that solicitors who have qualified using the transfer route are statistically more likely than those who have followed the domestic route to qualification, to be the subject of regulatory procedures, and offers the possible explanation that current arrangements do not adequately assess applicants’ knowledge, skills and understanding of law and legal practice in England and Wales.
The proposals that are likely to form part of the QLTS would require the same standards of knowledge, skills and ability, and the same test of character that are required of those who follow the domestic route to qualification. Even though these proposals intend to assess the ability of the applicants to apply their knowledge and skills in the context of English/Welsh law and legal practice, the measures aimed in this direction fall short of requiring lawyers to also practise under English law for at least one year, as demanded under the controversial interim measures that came into force in September.
The Law Society, in its response to the interim measures had said that it was “reasonable and proportionate to require all solicitors who are admitted to the Roll in England and Wales to have some prior experience of the law of England and Wales.” The response also said that it was in the interests of a transferee that they be exposed to the law of England and Wales before they take on the responsibilities and duties that are associated with membership of the solicitors’ profession.
However, the College of Law had come down heavily on the requirement, and several campaigners had opposed the interim measures, arguing that they not only contravened competition and race relations law, but also smelt of discrimination between the developed and developing countries. Ashish Pathak, an Indian lawyer with a master of law degree from Cambridge says the interim measures “make it almost impossible for an Indian lawyer working in India to claim eligibility for the Qualified Lawyers Transfer Test”. Jagdev, a New Delhi-based advocate and former member of the Bar Council of India says that “the new requirements would be a heavy financial burden that very few would be able to bear as an apprentice, and indicate a clear intention to deter foreign-qualified lawyers from practicing there.” Aarti Sathe, a Senior Associate at BMR Advisors does not believe that the interim measures pose enough reason to change opinions on welcoming foreign lawyers. “The higher filters which the SRA is trying to put in place for foreign lawyers intending to practice there do not mean there is a bar to practice”, she says and suggests the introduction of extremely high standards when the legal market is opened up.
The results of this consultation will be watched keenly not only in the UK, but by lawyers in all countries that have a similar legal system. The similarities are more evident in India and Indian lawyers will hope for relaxation of the interim measures. The results of this consultation might also have an impact on the pace at which the Indian legal market is opened up and partners at Indian and foreign law firms will keep their eyes on it.
