Foreign lawyers practising national law: temporary counsel in small jurisdictions

Abstract

Temporary licensing of foreign counsel is not necessarily limited to small jurisdictions, but it is an important, and contested, part of the legal landscape in many small jurisdictions. Small jurisdictions, with small national Bars, face particular problems concerning capacity to practise national law. As this paper shows, small national Bars may simply be running at capacity, or beyond, when a case comes along, the small size meaning a relatively small spike of demand can exhaust spare capacity. Alternatively, perhaps particularly if the national legal profession is a unified one, individual legal practitioners may experience a similar problem of capacity, with none prepared to take on a case which will dominate their working life to the detriment of other cases and other clients. On a different point, dealing with conflicts of interest within a small professional community is an ongoing problem for small jurisdictions. Finally, a small Bar may be too small to support specialist counsel with particular expertise in a particular field of national law.

This article explores the issue of temporary counsel in small jurisdictions through an in-depth case study of licensing in one small jurisdiction, that of the Isle of Man. The topic is approached through a range of methods. Doctrinal legal analysis, drawing particularly on relevant Manx statute, regulation and case-law, is supplemented by historical archival analysis; a detailed analysis of the 468 licences granted in the Isle of Man; and qualitative interviews with a selection of key actors. This study shows a pattern of acclimatisation to the licensing of foreign counsel in the Isle of Man since 1969, the juridification of the process of licensing since 1995, the development of an offshore Manx Bar, and the challenges the licensing system poses to the Manxness of Manx legal proceedings.

Moving beyond the Isle of Man, the paper argues that the national Bar of a small jurisdiction has constitutional significance, and that the impact of a substantially employed licensing scheme can be important in determining the shape of this national Bar. It concludes with a call for a comparative study of temporary counsel in small jurisdictions, taking into account the transnational legal context; and for a fuller consideration of a possible offshore offshore Bar as contributing to a continued relationship between common law jurisdictions in a post-colonial context.

Acknowledgements

Thanks to Dr Simon Cooper and Dr Derek O'Brien of Oxford Brookes, and members of the Centre for the Legal Profession and Legal Services, for comments on this project.

Acts

Admission to Manx Bar Regulations 1969.

Advocates Act 1826.

Advocates Act 1995.

Advocates Act 1996.

Advocates Act (Exemption) Regulations 2002.

Advocates Act (Exemption) Regulations 2008.

Advocates Act (Temporary Exemption) Regulations 2005.

Advocates (Period of Articles) Order 1989.

Advocates (Reduction in Period of Articles) Order 1983.

Advocates Regulations 1998.

Attorney's Fees Act 1763 s.11.

Attornies Act 1777.

Court Directive X (24).

Directions Regarding the Licensing of English Barristers to Appear in Manx Courts 1988.

Directions Regarding the Licensing of English Barristers to Appear in Manx Courts 1990.

European Communities (Lawyers Practice) Regulations 2000 (European Union).

33 Henry 8 c.6 (1511) (Act of Parliament).

Isle of Man Purchase Act 1765.

Legal Practitioners Law (2012 Revision) (Cayman Islands).

Legal Profession Act 1976 s,18(1) (Malaysia).

Practice Direction 4/2012, under the Legal Practitioners Law (2012 Revision) (Cayman Islands).

Regulations for Admission to Manx Bar (Amendment) (no. 2) 1983.

Cases

AG v Darroch and Dirom [2012].

AG v Robertson [2002].

Arquesbus Limited [2004].

Baines [2008].

Bates [2007].

Binford Pharmaceuticals [2006].

Bond [2002].

Booth and VISP Limited v Templeton Insurance Ltd [2012] JA.

Braddan Parish Commissioners [2011], JA.

Calvin’s Case [1608] 1 Co.Rep. 1a.

Carter Jones MacDonald and Bhandari [2004].

Cassar Limited [2003].

Clinton [2008].

Corkill [2008].

Davies [2000].

Davison v Farmer [1851] 6 Exch. 242.

Dawson [2009].

Diamond [2006].

Dowty [2003] JA.

Fargher [2009].

Forbes [2005].

Frost [2000].

Gidney [2003].

Hatcher [2006].

Hatcher Pharmaceuticals [2006].

Hatcher Pharmaceuticals [2007].

Hezlett [2000].

Hezlett [2004].

Hoehmann [2011] JA.

Kelliher and Horrobin [2006].

Lewin v Braddan Parish Commissioners [2011].

Livingstone v Stevenson, Manx Court of Chancery [2 August 1751] (Manx Museum Archives, MSS 4708).

Myp-Des Sa [2001].

Navigator Gas Transport [2004].

NGI v Rignose [1962] 1 W.L.R. 183.

Ove Arup International [2003] JA.

R v Barrett and three others [2001].

R v Foulis and Thomas [2001].

R v Wood and 2 others [2001].

Re C.B. Radio [1981–83] Manx L.R. 281.

Rixair Inc [2002] JA.

Templeton Insurance [2009].

United Consultants Limited [2003].

Valuable Resources [2001].

Varey [2005].

Volante [2008].

Watterson [no.2 of 2004].

Whipp [2010] JA.

Willers [2012].

Official archives and legislative debates

Committee report on the Advocates Bill, House of Keys, 1 March 1994.

Consideration of clauses of the Advocates Bill, House of Keys, 24 May 1994.

Directions Regarding the Licensing of English Barristers to Appear in Manx Courts 1991.

Letterbooks of the Lieutenant-Governor, Manx Museum Archives GO 16.

Safety and Access to Justice Programme, project 113400 (2010-2014).

Second Reading of the Advocates Bill, House of Keys, 22 June 1993.

Second Reading of the Advocates Bill, Legislative Council Debates, 8 November 1994.

Treaties

Revised Treaty of Chaguaramas (2001).

Notes

[1] As one barrister contributing to this study found, this can include counsel who ran the case in a national system which does not license foreign counsel, such as Jersey, but did not actually appear until the Privy Council (Respondent B2, June 2013).

[2] This discount was formalised at two years, and extended to a range of other UK legal professionals, in Regulations for Admission to Manx Bar (Amendment) (no. 2) 1983 and Advocates (Reduction in Period of Articles) Order 1983. The period for all articled clerks was reduced to two years by the Advocates (Period of Articles) Order 1989.

[3] There is a power to add further grounds by regulation, but this has not been exercised. Regulations have been issued under the Act, but these deal with procedural issues concerning applications for review of a licensing decision, rather than these broader issues. See Advocates Regulations 1998 r.4.

[4] Especial thanks to Katrina Surridge, of the Manx High Court of Justice, for her strenuous efforts to do so.

[5] In 2005 further special provision – notably the reduction of the period from three months to one month – was made for “the senior prosecuting officer in the Attorney General's Chambers”, in temporary provisions which only applied to employment under a fixed term contract which expired before 31 December 2006 [Advocates Act (Temporary Exemption) Regulations 2005].

[6] The correspondence concerning Ainsworth cited in this paragraph is all from the Isle of Man Law Society archives. Particularly thanks to the IOMLS for allowing me access to these materials.

[7] Regulation of a national legal profession may frequently be seen as in the public interest – see for instance Cm.570, discussed by IRS (1989). The ABA Model Rule for Temporary Practice by Foreign Lawyers requires that the lawyer be “subject to effective regulation and discipline by a professional body or public authority” (Commission on Multijurisdictional Practice, 2002, B).

[8] DC Doyle, Manx criminal law and procedure, 2010, at para.451. This emphasis upon liberty and the skills of a national bar is hardly limited to small jurisdictions, consider Opinion, Law Society Gazette, 22 November 2012 at p. 9.

[9] Hoehmann [2011]. On a point related to the licensing of QCs, licensing of multiple counsel for a single party, this may depend upon the complexity of the proceedings and a Deemster may be prepared to grant one licence but not two in a particular case. See Kelliher and Horrobin [2006]; see also Hatcher Pharmeceuticals [2007]; Baines [2008]; Watterson [2004, JA].

[10] Although it should be noted that licensing can survive sharp constitutional change. In Hong Kong, even 10 years after the severing of the constitutional link with the UK, it was “not unusual to see English QCs appearing before Hong Kong courts, particularly on highly specialised matters, although special permission from the Chief Justice ha[d] to be obtained for this” (Pache, 2007, p. 91).