Comparative Law Spring 2006Professor Susanna FischerCLASS 7FRENCH LEGAL PROFESSION AND TRAININGJan. 31, 2006

French Legal Profession

Professor René David has stated: “there is no general concept of a legal profession in France.”Is that true? To what extent are French legal professionals similar to U.S. attorneys and judges? To what extent are they different?

French Legal Profession

There are several separate kinds of French legal professionals. Training, regulation, and ability to choose clients depend on which branch of the legal profession a professional belongs to.

THE FRENCH LEGAL PROFESSION

What are the major types of French lawyers today?

Main legal professions in France

AvocatAvocats aux conseilsNotairesAvouésHuissiers de Justice[more on next slide]

Main legal professions in France continued. . .

Judges (magistrats du siège; les juges)Magistrats du parquet (known collectively as ministère public.)

AVOCATSPierre Hourcade: http://www.franceavocat.com/About 36,000 avocats in France (about half practice in Paris)What legal services do avocats perform?Do avocats have a monopoly over any types of legal services?

AVOCATS4 main roles of avocats:1. Advocates at court hearings (assistance)2. Drafting written submissions (pleadings) (représentation), 3. Giving legal advice4. Drafting non-litigation documents like contracts

A Little Historical Background on Profession of Avocat

In 1990, the profession of avocat, which had exclusive rights of audience in most courts, was merged with another branch of the profession, conseil juridiques who (created in 1971 under a previous reform law) had the function of giving advice, drafting documents (though not notarial deeds), and had only limited rights of representation. Conseil juridiques most often were corporate and tax lawyers. Reformed because it was seen in the public interest for clients to just have 1 lawyer

AVOCATS AUX CONSEILS

What is the function of these public officers?How many are there?

AVOCATS AUX CONSEILSThey have exclusive rights to act as advocate and draft court pleadings for Conseil d’Etat and Cour de cassatinThey are officiers ministériels appointed by Minister of JusticeThere are 92 of them.

AVOUÉS PRES LES COURTS D’APPEL

What is the function of these public officers?How many are there?

AVOUÉS PRES LES COURTS D’APPEL

Originally avoués had a monopoly over drafting legal pleadings but this was limited to court of appeal in 1971.They still have this monopoly.About 300 of them.

NOTAIRE

What are the functions of a notaire? Do notaires have a monopoly over any legal services?

NOTAIRE (about 7500 total)What is the function of a notaire?1. Draw up authenticated/enforceable instruments (actes authentiques) (such as contracts of sale). Some, like marriage contracts, wills, or mortgages, are required to be drawn up by notaires so they have a monopoly in that regard.2. Give legal advice re: transactions, business, commerce3. Act as officers of the court to draft documentation re company liquidation or divorce settlement.

NOTARISED INSTRUMENTS

Notaries signature bears witness to contents and dateThey are enforceable without need for court judgmentNotary keeps archive of documents – preserved for 100 yearsOverseen by Superior Counsel of Notaries as well as regional and local chambers (usually one local chamber per department)

NOTAIRE (about 7800 total)For more information, see http://www.notaires.fr/

Huissiers de justice -

What is the function of huissiers de justice?Do they have a monopoly over any legal services?

Huissiers de justice -What is the function of huissiers de justice? Bailiffs (about 2500 of them)Do they have a monopoly over any legal services? Yes, they have a monopoly on serving court documents and taking measures to enforce judgments (e.g. seizing or selling goods)Could also prepare sworn statements to use as evidence in court (like experts)Operate in jurisdiction of local TGI which supervises their work

Additional advisory functions of Huissier

      conflicts between landlords and tenants, difficulties related to separation or divorce procedures (e.g. access to children)

     advises companies about their future partners.  He/she obtains the repayment of debts for those companies.Can advise generally

Mediator/Conciliator functions of huissier

      The Huissier de Justice can serve as a mediator to try to find an amicable solution to disputes, to avoid lengthy and expensive procedures.

         The Huissier de Justice is a conciliator. He/she avoids the recourse to courts and tribunals.  He/she in some ways replaces the Justice of the Peace.

For more information, see:Chambre nationale des huissiers de justice at: http://www.huissier-justice.fr/

OTHER LEGAL PRACTITIONERS: JURISTE D’ENTERPRISE

In-house lawyersRegulated by general labor laws

OTHER LEGAL PRACTITIONERS

Greffiers des Tribunaux de Commerce - REGISTRARS OF COMMERCIAL COURTSCommissaires-Priseurs - LICENSED AUCTIONEERSAdministrateurs Judiciaires - COURT-APPOINTED ADMINISTRATORS FOR INSOLVENT COMPANIES

Officiers Ministériels: Serving the Public

Specialists who must serve all comers. (Avoués of the court of appeals, Avocats of the Cour de Cassation and the Conseil D'etat, Notaires, Huissiers de Justice, a sort of bailiff, clerks of the commercial courts, greffiers. All these are specialists who may not reject lawful requests for services within their competence.)Avocats are different. They can freely choose their clients.

AVOCATS: TRAINING

What must Pierre Hourcade do to become an avocat?How does this differ from the U.S. training?What are the advantages and disadvantages of the French system of training for avocats?

FRENCH LAW DEGREE3 stages 1. DEUG - diploma of general university studies (awarded for successful completion of the first two years of studies)2. Licence - after successful completion of three years of studies3. Maitrise - after successful completion of four years of studiesAfterwards may do DEA (diploma of advanced legal studies) or DESS (specialist diploma in legal practice)

Becoming an Avocat

Masters degree in Law (maitrise en droit) – around 50% failure rate in first yearFollowed by Professional Stage – if you pass an entrance exam you study at a regional bar school and if you pass the final exam you obtan the CAPA2 year period of “apprenticeship” as avocat stagiaireAdmission

Bar Association

Avocats must be a member of a local Bar Association (barreau) There is also a National Bar CouncilOf the approximately 33,000 avocats, 13,000 are members of the barreau de Paris.

Becoming an Avocat aux Conseils

Remember: these have a monopoly on right to represent clients before Cour de Cassation and Conseil d’EtatThey hold a public officeThere are about 90 of these avocats aux conseilsHow do you become an avocat aux conseils?

Becoming an Avocat aux Conseils

AppointedMust take an entrance examAlso must do a separate stage

Becoming an Avoué près des Courts d’Appel

Remember: there used to be a separate profession of avoué who were similar to British solicitors, but in 1971 almost all were merged with avocatsBut the separate profession was retained for proceedings before the 30 Cours d’AppelWhy?

Becoming an Avoué près des Courts d’Appel

But the separate profession was retained for proceedings before the 30 Cours d’AppelWhy? Justification is that appellate court proceedings are quite complex.There are about 400 avoués; around 120 of them are womenHow do you become an avoué?

Becoming an Avoué près des Courts d’Appel

How do you become an avoué?Must pass professional examinationsMust complete 2 year period of practical training

Becoming a Judge

Unlike England (or at least in part, the United States), judges are not appointed from the ranks of experienced advocatesDoes this surprise you?

Becoming a Judge

French procedure requires that judges exercise different functions than judges in common law systems with adversarial trials

Career JudiciaryMost judges in regular court system are graduates of the Ecole Nationale de la Magistrature in Bordeaux (ENM)Administrative judges generally graduate from Ecole National D’Administration (based Paris and Strasbourg)Some judges come out of the civil service, or academics, some from ranks of advocatesLay judges

ENM

Open to French nationals who have the University masters degree or, inter alia, 4 years civil service experienceCompetitive extrance exam (concours) or proof of 3 years legal exerience as avocatsWomen comprise 65% of applicants

ENM

31 months training – includes academic study, placement with company/administrative body, and 1 year period spent working at a courtFinal examination. Best results give you more choice of position.

ENA

Created in 1945 to train students for top careers in the administrationOpen to those with law degree or certain experience (e.g. civil service, trade unions)Competitive entrance exam3 year courseHas period of practical trainingFiinal exam

Huissier de Justice

These have a monopoly over certain mainly procedural functions like service of writs and execution of judges (like bailiffs). They also act as court ushers. They may also perform certain fact investigations for the courts.There are around 3500 of them.How do you become a huissier de justice?

Huissier de Justice

How do you become a huissier de justice?Get a masters degree in law, work for 2 years as a stagiaire, and pass professional examinations

Notaire

What is a notaire?How do you become a notaire?

Notaire

They are public officers who draft/give authenticity to certain documents that require formality under the law (such as marriage contracts and real property deeds). You also usually hire a notaire to make a will, or to advise family members on financial mattersThere are about 8,000 notaires

Training to Become a Notaire

Need a maîtrise en droitThen must take professional examinations 2 year practical training as notaire stagiaire

Representing YourselfNeed avocat before the Cour d'appel, the Cour de cassation and the Conseil d'Etat parties must be represented by an avocat - labor disputes are an exception in the Cour d'appel and the Cour de cassation.Otherwise, parties may represent themselves before the courts or instruct certain third parties to do so though some limits on who these third parties can be (e.g. Tribunal d’instance)

THE JUDICIAL BRANCH

JudgesMagistrats du parquet (ministère public)Both are civil servants To what extent is the judicial branch of government truly independent in France? Is it more or less independent than the U.S. judiciary? Why or why not?

JUDICIAL INDEPENDENCE

Provided by Art. 64 of the 1958 ConstitutionJudges are inamovibles – can only be dismissed on very limited grounds by CSM sitting as a court (without Minister of Justice or President of the Republic; no right of appeal from its decision)

APPOINTMENT OF JUDGESSenior appointments (to Cour de Cassation, First President of cours d’appel, Presidents of TGI) chosen by conseil supérieur de la magistrature (CSM) – under Art. 65.Other senior appointments are made on advice of CSMMore junior appointments made by a different commission that proposes names to the CSMSome criticize this body as too political to ensure judicial independance

MEMBRES of CSM (2002)

JUDGES ARE BARRED FROM CERTAIN WORK

Can’t practice another professionCan’t carry on businessCan teach or be artists Cannot express political opinions in publicNo right to strike

MINISTÈRE PUBLIC

Public prosecutor’s officeProsecutors in criminal case; represent public in civil cases

Art. 65Article 65The section with jurisdiction for public prosecutors shall comprise, in addition to the President of the Republic and the Minister of Justice, five public prosecutors and one judge, and the conseiller d'Etat and the three prominent citizens referred to in the preceding paragraph.

This was changed to make the CSM more independent (small majority of non-members of judiciary)

Art. 65

Article 65The section of the High Council of the Judiciary with jurisdiction for public prosecutors shall give its opinion on the appointment of public prosecutors, with the exception of posts to be filled in the Council of Ministers.

Art. 65Article 65It shall give its opinion on disciplinary penalties with regard to public prosecutors. When acting in that capacity, it shall be presided over by the chief public prosecutor at the Court of Cassation.

A constitutional statute Act shall determine the manner in which this article is to be implemented.Note – public prosecutors don’t have security of tenure like judges, but they are entitled to a hearing before dismissal