Comparative Law Spring 2006 Professor Susanna Fischer

1. Comparative Law Spring 2006Professor Susanna Fischer CLASS 7 FRENCH LEGAL PROFESSION AND TRAINING Jan. 31, 2006

2. 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?

3. 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.

4. THE FRENCH LEGAL PROFESSION • What are the major types of French lawyers today?

5. Main legal professions in France • Avocat • Avocats aux conseils • Notaires • Avoués • Huissiers de Justice • [more on next slide]

6. Main legal professions in France continued. . . • Judges (magistrats du siège; les juges) • Magistrats du parquet (known collectively as ministère public.)

7. AVOCATS • Pierre 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?

8. AVOCATS • 4 main roles of avocats: • 1. Advocates at court hearings (assistance) • 2. Drafting written submissions (pleadings) (représentation), • 3. Giving legal advice • 4. Drafting non-litigation documents like contracts

9. 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

10. AVOCATS AUX CONSEILS • What is the function of these public officers? • How many are there?

11. AVOCATS AUX CONSEILS • They have exclusive rights to act as advocate and draft court pleadings for Conseil d’Etat and Cour de cassatin • They are officiers ministériels appointed by Minister of Justice • There are 92 of them.

12. AVOUÉS PRES LES COURTS D’APPEL • What is the function of these public officers? • How many are there?

13. 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.

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

15. 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, commerce • 3. Act as officers of the court to draft documentation re company liquidation or divorce settlement.

16. NOTARISED INSTRUMENTS • Notaries signature bears witness to contents and date • They are enforceable without need for court judgment • Notary keeps archive of documents – preserved for 100 years • Overseen by Superior Counsel of Notaries as well as regional and local chambers (usually one local chamber per department)

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

18. Huissiers de justice - • What is the function of huissiers de justice? • Do they have a monopoly over any legal services?

19. 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

20. 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

21. 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/

22. OTHER LEGAL PRACTITIONERS: JURISTE D’ENTERPRISE • In-house lawyers • Regulated by general labor laws

23. OTHER LEGAL PRACTITIONERS • Greffiers des Tribunaux de Commerce - REGISTRARS OF COMMERCIAL COURTS • Commissaires-Priseurs - LICENSED AUCTIONEERS • Administrateurs Judiciaires - COURT-APPOINTED ADMINISTRATORS FOR INSOLVENT COMPANIES

24. 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.

25. 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?

26. FRENCH LAW DEGREE • 3 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 studies • 3. Maitrise - after successful completion of four years of studies • Afterwards may do DEA (diploma of advanced legal studies) or DESS (specialist diploma in legal practice)

27. Becoming an Avocat • Masters degree in Law (maitrise en droit) – around 50% failure rate in first year • Followed 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 CAPA • 2 year period of “apprenticeship” as avocat stagiaire • Admission

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

29. Becoming an Avocat aux Conseils • Remember: these have a monopoly on right to represent clients before Cour de Cassation and Conseil d’Etat • They hold a public office • There are about 90 of these avocats aux conseils • How do you become an avocat aux conseils?

30. Becoming an Avocat aux Conseils • Appointed • Must take an entrance exam • Also must do a separate stage

31. 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 avocats • But the separate profession was retained for proceedings before the 30 Cours d’Appel • Why?

32. Becoming an Avoué près des Courts d’Appel • But the separate profession was retained for proceedings before the 30 Cours d’Appel • Why? Justification is that appellate court proceedings are quite complex. • There are about 400 avoués; around 120 of them are women • How do you become an avoué?

33. Becoming an Avoué près des Courts d’Appel • How do you become an avoué? • Must pass professional examinations • Must complete 2 year period of practical training

34. Becoming a Judge • Unlike England (or at least in part, the United States), judges are not appointed from the ranks of experienced advocates • Does this surprise you?

35. Becoming a Judge • French procedure requires that judges exercise different functions than judges in common law systems with adversarial trials

36. Career Judiciary • Most 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 advocates • Lay judges

37. ENM • Open to French nationals who have the University masters degree or, inter alia, 4 years civil service experience • Competitive extrance exam (concours) or proof of 3 years legal exerience as avocats • Women comprise 65% of applicants

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

39. ENA • Created in 1945 to train students for top careers in the administration • Open to those with law degree or certain experience (e.g. civil service, trade unions) • Competitive entrance exam • 3 year course • Has period of practical training • Fiinal exam

40. 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?

41. 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

42. Notaire • What is a notaire? • How do you become a notaire?

43. 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 matters • There are about 8,000 notaires

44. Training to Become a Notaire • Need a maîtrise en droit • Then must take professional examinations • 2 year practical training as notaire stagiaire

45. Representing Yourself • Need 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)

46. THE JUDICIAL BRANCH • Judges • Magistrats 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?

47. JUDICIAL INDEPENDENCE • Provided by Art. 64 of the 1958 Constitution • Judges 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)

48. APPOINTMENT OF JUDGES • Senior 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 CSM • More junior appointments made by a different commission that proposes names to the CSM • Some criticize this body as too political to ensure judicial independance

49. MEMBRES of CSM (2002)

50. JUDGES ARE BARRED FROM CERTAIN WORK • Can’t practice another profession • Can’t carry on business • Can teach or be artists • Cannot express political opinions in public • No right to strike