Comparative Law Notes 5

LAW 6250
Professor Pedro A. Malavet

Class Notes Part Five

VI. The Legal Professions in the Civil Law World

Chapter 6.A: An Overview of the Multiple Legal Professions,

In looking at the legal professions, try to see what the structure of the specialties, and the desirability of joining each profession say about the society that these professions serve. There is a definite emphasis on government service by lawyers in the Civil Law World. This means a great allocation of governmental resources. Why would they wish to use resources this way?

What is the effect of specialized education, admission and training on the ethical vision of each profession?

Is lack of knowledge of and/or experience with the other professions desirable? On the one hand, perhaps it creates a larger sense of duty to the profession and to its rules of conduct, but might it not also produce insensitivity to the needs of the other professions? (Increasing professionalism vs. Turf.)

In our system we train you with the adversarial ethic in mind. Is this especially good preparation for jobs in the public sector, perhaps even the judiciary? Does this mean that our prosecutors, administrators, elected officials and judges are incapable of abandoning the adversarial ethic when necessary? But even if they are willing to do so, are they trained to act in a non-adversarial role?

Chapter 6:
Legal Professionalism in
 the Civil Law World
Professions and Values
consider Public Service
In looking at the legal professions, try to see what the structure of the specialties, and the desirability of joining each profession say about the society that these professions serve.
There is a definite emphasis on government service by lawyers in the Civil Law World. This implies a great allocation of governmental resources. Why would they wish to use resources this way?

High-Level Professionalism vs.
Monopoly and Balkanization: “Turf”
Is lack of knowledge of and/or experience with the other professions desirable?
On the one hand, perhaps it creates a larger sense of duty to the profession and to its rules of conduct?
But, might it not also produce insensitivity to the needs of the other professions?

(Increasing professionalism vs. Balkanization, Turf battles.)
Adversarial Ethic
In our system we train you with the adversarial ethic in mind.
Is this especially good preparation for jobs in the public sector, perhaps even the judiciary?

Adversarial Ethic
Does this mean that our prosecutors, administrators, elected officials and judges are incapable of abandoning the adversarial ethic when necessary?
But even if they are willing to do so, are they trained to act in a non-adversarial role?

A. Overview
Comparison of the Legal Professions
In looking at the legal professions, initially look for the following:
Legal specialties?
Government-mandated or
practice-determined?
Training required for specialty?
Official or practical limits on The competence of each profession?
“Competence” means jurisdiction, area of practice/responsibility; note the existence of monopolies.

Legal Specialties,
1. Judges
2. Procurators/Prosecutors
3. Government Lawyers (mostly administrative)
4. Advocates/Advisors (mostly private)
5. Notaries (Notaire, Notario, Notär).
6. Academics

Legal Specialties in the
United States?
Practice-determined, market-driven, flexible
Subject to malpractice liability
“Certifications” board certification is available in 24 fields in Florida
(www.floridabar.org/certification)

Barrister/Solicitor in the UK
Solicitor: general legal adviser to and supervises actions for client
Barrister: litigator, counsels and represents in court matters
Barristers may not approach clients, only the solicitor may initiate the attorney-client relationship

Specialization and Ethics
What is the effect of specialized education, admission and training on the ethical vision of each profession?

Problems?
Bureaucratization and Balkanization among professions
Lack of adequate basis to choose
Solutions?: apprenticeships, e.g. German referendarzeit

Legal Specialties,
public employment
1. Judges
2. Procurators
All Countries (Procureurs, Fiscales)
DO NOT Confuse Procurador.
3. Government Lawyers (mostly administrative)
Distinguish between General Civil Service and Specialized Government Lawyers (Abogados del Estado, Avvocatura dello Stato).

Legal Specialties: Judges
Judge School:
National Schools of the Magistrature
Entrance Examinations
Start at lower courts and move up and closer to the capital as they acquire seniority
Lifetime job

US Judges
Nominated by the President subject to advice and consent of the Senate
874 Art. III Judges
Supreme Court 9
Courts of Appeals 179
District Courts 677
Int’l Trade 8

Florida Judges
Elected at all levels until 1974
“Merit Selection” instituted for the Supreme Court in 1974
“Merit Retention” instituted in 1976 with 6-year terms and
DCA added to “Merit Selection” system
“Judicial Nomination Commission” for DCA and SC
All judges subject to Rules of Ethics enforced by the Judicial Qualification Commission
http://www.floridasupremecourt.org/pub_info/system2.shtml

Public Prosecutor’s Functions,
1. Traditional Prosecutorial Function
2. Representing the “Public Interest”
3. “Independent” view in on questions of law (not just constitutional questions)
Civil Service Tenure/Rules
Some mobility between prosecution and judiciary

Government Lawyers,
Administrative work for individual agencies
Some countries have “government lawfirms” that represent the state

Legal Specialties:
“Private” functions
4. Advocates/Advisors
General Legal Advice; Litigation (Procurador, Conseil D’etat)
5. Notaries (Notaire, Notario, Notär)
Monopoly powers over certain legal transactions, must serve all comers, for statutory fees.
6. Academics

II. Non-Salaried Liberal Professionals
B. Specialists who must serve all comers.
Officers Ministeriels. 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.

Private Advocates,
Must be members of the respective “college” (the bar associations)
Compulsory membership referred to as the “unified bar” in the U.S.
Limited numbers in certain jobs
E.g., 60 licenses to practice before French Court of Cassation, and Council of State since 1817

Licenses to Litigate
Note that the number of licenses for the Cassation Court and the Council of State has remained at 60 since 1817.

Notaries,
Monopoly over certain forms of documents
Monopoly over certain transactions
Tax Collectors
Records Keepers

Officiers Ministeriels
venal officers under the Ancien Regime, i.e., their positions were purchased
The Revolution changed that, except that it gave notaries, bailiffs, clerks of court, the right of presentation, i.e., you may designate a person to get your position. While the State retains the right of appointment, it usually will accept the presentation. This is a privilege for which people will pay. Numerus Clausus.

GRAPHIC: Lawyers/Population/Notaries

Academics,
State Examination for Admission
“Private Docent”
Professorship
Academic Chair
“Schools of Thought”

Lawyer-Academic
Professional Schizophrenia?
Lawyers in the U.S.

ABA:
in 2005,
1,104,766

Bureau of Labor Statistics:
in 2004, 735,000
in 2006, 761,000

Numbers in France, c. 1990
15,757 lawyers
80 lawyers of the Conseil D’Etat and the Cour de Cassation
4,264 legal advisors
7,001 notaries
288 solicitors at the courts of appeals
2,796 bailiffs
5,640 magistrates

Numbers in France, 2006-08
47,800 lawyers, includes old categories of Avocat, Avoue and Conseil Juridique
(Over 40% in the Paris area)
91 lawyers of the Conseil D’Etat and the Cour de Cassation in 60 offices
8,500 notaries (about 4500 offices)
288 solicitors at the courts of appeals
10,600 bailiffs
8,000 magistrates, 2,700 Council of State

GRAPHIC: The French Court System

GRAPHIC: Lawyers in the U.S. 2004
Practice Setting

GRAPHIC: U.S. Lawyers in Private Practice

GRAPHIC: U.S. Lawyers by Gender

GRAPHIC: U.S. Lawyers by Race

GRAPHIC: U.S. Law Students

GRAPHIC: Table 8.7
Lawyers by Position

GRAPHIC: Table 8.8 Lawyers in Private Practice

GRAPHIC: Table 8.9
German and USA by “Profession”

Poor advocates?
Those who pass both examinations choose among the different legal occupations largely on the basis of their marks on the second state examination, supplemented by the evaluative report of the training judges. Very good marks … open the door to a career in the judiciary or civil service.
... but advocacy recently has become the occupation for all jurists unable to find government or civil service jobs.

GRAPHIC: The German Court System

Bar Passage in Japan
1949: 2,512 / 265 / 10.5%
1950: 2,755 / 269 / 9.8%
1960: 8,302 / 345 / 4.2%
1970: 20,160 / 507 / 2.5%
1980: 28,656 / 486 / 1.7%
1985: 23,855/ 486 / 2.0%
1990: 22,900 / 499 / 2.2%
1992: 23,435 / 630 / 2.7%
2002: 41,459 / 1,183 / 2.85%
Since 2006 over 27%

Article 3 of Bengoshi Law
Article 3. A lawyer shall, upon the request of a party and other persons concerned, or a government or public office, perform acts and other general legal business related to lawsuits, noncontentious cases, and appeals of dispositions by administration offices such as requests for investigation, objections, and petitions for review.

Article 72 of Bengoshi Law
No person other than a lawyer shall, with the aim of obtaining compensation, engage in the presentation of legal opinions, representations, mediation or conciliation, and other legal business … in connection with lawsuits or noncontentious cases, and such appeals filed with administrative offices as requests for investigation, objections, petitions for review, and other general legal cases, or act as agent therefore; provided that this shall not apply in such cases as otherwise provided for in this Law.

Persons not admitted to practice were prohibited from:
engaging regularly and for compensation in the business of providing expert opinions, representation, arbitration, or compromise related to litigation involving other persons or disputes involving noncontentious cases between other persons or other related acts; provided, however, this shall not apply to acts carried out pursuant to otherwise legitimate business activities.

Other Legal Professions
The Law-trained corporate employee
Patent Agents (Berishi)
Tax Agents
Judicial Scriveners
Administrative Scriveners
Japanese Notary

The Legal Professions: Summary
The Europeans allocate many resources to the legal professions, which accounts for the higher rates of government employment for legal professionals in Germany and France compared to the United States.

The Legal Professions: Summary
Additionally, this means that work that might be performed by a private lawyer in the U.S. is allocated to a government-employed legal professional there.

Specialization
A. Specialties: generally strictly separated and incompatible to practice more than one. No/little mobility among them. Except judges and procurators, sometimes. Academics tend to be part-time and occupy other positions.

B. Admission:
1. Education,
2. Examination,
3. Apprenticeship,
4. Appointment

C. Competence:
Substantive or geographic monopolies.
Numerus Clausus: May lead to venality.

D. Disciplinary Authorities
1. Professional Colleges
2. Ministry of Justice
3. Courts

E. Fees: often statutory.

Population, 2008
Spain 40 million
Italy 58 million
France 64 million
Germany 82 million
United States of America 303 million
(approx., source: CIA World Factbook
https://www.cia.gov/library/publications/the-world-factbook/index.shtml)

Questions
If you had to make a choice, which of the comparative legal professions would you choose? Why?
If the United States were to adopt a system of strict legal specialization, would you still want to be a lawyer?
Does the United States have any  de jure or de facto systems of legal specialization?

Table 8.9,
German and USA by “Profession”

Table 8.8 Lawyers in Private Practice

Table 8.7
Lawyers by Position

Judges, Procurators, Bengoshi
per 100,000 Japanese citizens
1910:   4.1
1920:   5.6
1930:   10.2
1940:   7.6
1950:   7.0
1960:   6.9
1970:   8.5
1980:   10.1
1986:   10.8

The French Court System

Numbers in France
15,757 lawyers
80 lawyers of the Conseil D’Etat and the Cour de Cassation
4,264 legal advisors
7,001 notaries
288 solicitors at the courts of appeals
2,796 bailiffs
5,640 magistrates

Poor advocates?
Those who pass both examinations choose among the different legal occupations largely on the basis of their marks on the second state examination, supplemented by the evaluative report of the training judges. Very good marks … open the door to a career in the judiciary or civil service.
... but advocacy recently has become the occupation for all jurists unable to find government or civil service jobs.

The German Court System

Bar Passage in Japan
1949: 2,512 / 265 / 10.5%
1950: 2,755 / 269 / 9.8%
1960: 8,302 / 345 / 4.2%
1970: 20,160 / 507 / 2.5%
1980: 28,656 / 486 / 1.7%
1985: 23,855/ 486 / 2.0%
1990: 22,900 / 499 / 2.2%
1992: 23,435 / 630 / 2.7%
2002: 41,459 / 1,183 / 2.85%
(update)

Article 3 of Bengoshi Law
Article 3. A lawyer shall, upon the request of a party and other persons concerned, or a government or public office, perform acts and other general legal business related to lawsuits, noncontentious cases, and appeals of dispositions by administration offices such as requests for investigation, objections, and petitions for review.

Article 72 of Bengoshi Law
No person other than a lawyer shall, with the aim of obtaining compensation, engage in the presentation of legal opinions, representations, mediation or conciliation, and other legal business … in connection with lawsuits or noncontentious cases, and such appeals filed with administrative offices as requests for investigation, objections, petitions for review, and other general legal cases, or act as agent therefore; provided that this shall not apply in such cases as otherwise provided for in this Law.

Persons not admitted to practice were prohibited from:
engaging regularly and for compensation in the business of providing expert opinions, representation, arbitration, or compromise related to litigation involving other persons or disputes involving noncontentious cases between other persons or other related acts; provided, however, this shall not apply to acts carried out pursuant to otherwise legitimate business activities.

Other Legal Professions in Japan
The Law-trained corporate employee
Patent Agents (Berishi)
Tax Agents
Judicial Scriveners
Administrative Scriveners
Japanese Notary

As you all guessed, the candidates who fail the Japanese bar exam end up in law-related specialties other than the ones defined by the Bengoshi monopoloy or in the judicial or prosecutorial function.

Judges, Procurators, Bengoshi ?per 100,000 Japanese citizens
1910: 4.1
1920: 5.6
1930: 10.2
1940: 7.6
1950: 7.0
1960: 6.9
1970: 8.5
1980: 10.1
1986: 10.8

The Legal Professions: Summary
The Europeans allocate many resources to the legal professions, which accounts for the higher rates of government employment for legal professionals in Germany and France compared to the United States.

The Legal Professions: Summary
Additionally, this means that work that might be performed by a private lawyer in the U.S. is allocated to a government-employed legal professional there.

Specialization
A. Specialties: generally strictly separated and incompatible to practice more than one. No/little mobility among them. Except judges and procurators, sometimes. Academics tend to be part-time and occupy other positions.
B. Admission:
1. Education,
2. Examination,
3. Apprenticeship,
4. Appointment

C. Competence:
Substantive or geographic monopolies.
Numerus Clausus: May lead to venality.

D. Disciplinary Authorities
1. Professional Colleges
2. Ministry of Justice
3. Courts

E. Fees: often statutory.

Population, 2004
Spain 40 million
Italy 58 million
France 60 million
Germany 82 million
United States of America 293 million

Statistics

Lawyers in the U.S.
ABA: ?in 2005, ?1,104,766

Bureau of Labor Statistics:?in 2004, ?735,000

The modern numbers given the ABA indicate that many of the basic lessons shown in the old statistics are still true. In particular, the relative percentage of the U.S. legal profession in Private or Corporate practice still accounts for the bulk of U.S. lawyers.

Chapter 6.B: Ethical Issues and Concerns (Two sessions)

The Ethical Concerns:
the EU Example
The EU has issued “directives” requiring member states to open their borders to transnational law practice,
Nation states retain competence to regulate professionals in their territory, BUT
The ECJ requires them to conform to European mobility rules,

Three levels of Rules
Free-movement
Anti-Trust (competition rules)
Human rights laws

Legal Services Market
“Worldwide legal services revenue increased from
$363.6 billion in 2003 to
$458.2 billion in 2007
[54%:] U.S. legal service firms [accounted for] 54 percent of global revenue in 2007 and 75 of the top 100 global firms ranked by revenue.”

“Lawyer?”: Given the variety of
legal professions …
Look for the definition of the professional monopoly
Is it limited to litigation in national courts?
Is it more general, covering legal advice?
Are partnerships between lawyers allowed?
Are partnerships with other professions allowed?

Free Movement of Lawyers
In addition to the variations in national legal professions:
Article 49 EC specifically permits a lawyer to provide cross-border services. The “home” State is the State where the lawyer is established and the “host” State is where the service is provided.

No more “residency” for cross-border legal services,
The Gebhard case established that even when a lawyer provides a temporary service he or she is entitled to open a branch office.
Gebhard means that host state may not fully regulate “visiting” professionals
Van Binsbergen. The ECJ ruled that Article 49 had direct effect, meaning that Van Binsbergen could rely on it before the national court without further EC implementation measures.
Residence rule invalid, therefore, Rechtsanwalt living in Düsseldorf [could] go to Brussels to advise a client on any law

Reservations for National Lawyers, the only fully reserved areas are
notarial transactions
representation in courts (litigation). If a visiting lawyer wants to go to court and the host State reserves that activity to lawyers, the national rules can insist that court appearances are done in conjunction with a local lawyer. The ECJ has strictly applied this rule.
The host State can also prevent salaried lawyers from pursuing this activity if national salaried lawyers are prohibited from doing so.

Ethics/Conflicts Rules,
Depends on forum, particularly public ones
Home and host state rules may apply in different contexts (malpractice roulette?)

What about establishment?
Everybody had thought Article 43 allowed access under the same conditions as locals, but the Gebhard case allowed a wider access.
If the migrant lawyer wanted to do what an avvocato does--advise on Italian law--he has to do what the avvocati do, namely, join to the local profession. Community Law had already made this easier.
 If he wanted to stay a Rechtsanwalt, however, he was not necessarily doing what the Italian lawyer does, he was undertaking a different work. Italian regulation then had to be non-discriminatory.

Establishment Continued,
The process does not provide for automatic recognition. What essentially happens is that the knowledge and skills attested to by the diploma are matched against those required in the host State for professionals in the same field. Any "essential" missing parts can then be identified--the "substantial differences"--and the host State can require that the applicant complete an adaptation period or take an exam to show that the gaps have been filled. [Can include adaptation period.]

Establishment Continued,
Directive 98/5/ECcovers a limited range of lawyers and gives them the right to practice under their home State professional title in another Member State.
Council Directive 98/5, art. 1. Those not falling within the list must use the case law (Gebhard) right of establishment. See generally Longbay (discussing the various professional qualification requirements for law practitioners in the EU).

Free movement of diplomas, which includes degrees in law
Ethics Concerns,
A migrant lawyer who turns into a local lawyer is practicing as a home State lawyer, and, therefore, is subject to all the home State rules.
But this begs the question of in what capacity was the lawyer performing?

Which bar/country has jurisdiction over the matter?,
What about Competence?
Is the professional really prepared to provide quality legal services in the country in which they are operating?
(Note that “competence” has been used in a very different way up until this section of the readings)

What about efficiency?
The Commission found many of the monopolies lawyers have, which vary in different European countries, to be excessive and unnecessary. Many of those services could be done cheaper and better by other people, and the examples tended to come from the more liberal countries where monopolies are being diminished or disbanded.

But there are limits
as to “particularly important” rules
Note that confidentiality is one of those where the host state rules will dominate
Incompatible activities
And publicity

What about cross-migration?
If you are crossing back and forth, which rules govern?
On which side of the border?
Disciplinary Cooperation may be a solution

What about students who are partially educated?
November 2003 in the Morgenbesser case. This is the case of a law student who finished her law degree in France, and then went to Italy and said, "please let me into your professional practice courses. I want to be an Italian avvocato."
The Italian Bar replied that she needed an Italian law degree or to get an Italian University recognize her French law degree.

Morgenbesser, continued
Host state’s bar entitled to assess credentials
If they are complete, must be allowed into practice course
If not, the applicant must fill in the gaps.