Tuesday, June 30, 2009

Darrois--Clementi Comes to France?

I went along to a presentation by Jean-Michel Darrois on his commission's proposals to reform the French legal profession at the Law Society yesterday. It, of course, begs comparison with the Clementi Review in the UK.

Darrois prefaced his remarks by saying that President Sarkozy was concerned that French lawyers weren't as present in the world as US and UK lawyers. It seems that French lawyers, apart from a few big firms like Gide, are more inward looking.

Taking this to heart the commission was composed of few lawyers, a couple of professors, judges, administrators and one in house lawyer, although it heard evidence from a wide range of people.

The French legal profession is divided rather like English lawyers with turf wars constantly being fought. When notaries were about to get the power to grant mutual divorces, French lawyers (avocats) objected that they were being excluded--hence Darrois.

Part of the trouble with the French legal profession is the perception of what each part's role is. Notaries are seen as quasi-public officials who can do "authentic acts". (Apparently, according to Prof Aynes, learning what these are is the bane of French law students' studies.) Avocats can't do them. In fact, avocats are seen as court lawyers whose prime duty is to the client--a defender.

Others do law as well including accountants and legal advisers. But strangely in house counsel are not lawyers. They are merely employees of the company and don't enjoy lawyer-client confidentiality or secrecy. The French legal profession likes it this way.

Overall, the reforms proposed by Darrois are modest, when compared to Clementi's.
  • Some fee sharing between notaries and lawyers will be allowed, but merging the two arms of the profession won't happen.
  • French lawyers can become in house counsel, but without the normal privileges.
  • Forms of multidisciplinary practice (or more likely legal disciplinary practice) will be permitted, eg. lawyers and accountants (but not lawyers and auditors). These can be temporary, short term or permanent.
  • Law firm partnerships will be encouraged.
  • Legal aid will be properly introduced and funded.
  • Some form of joint legal training will be introduced so that law students will know what others in the legal profession do and can therefore make an informed choice.
Nicolas Sarkozy has said he will introduce the reforms next year.

Are they going to increase the presence of French lawyers in the world at large? Unlikely. At best this is a minor reconfiguration which brings the French legal profession into the early 20th century, but nowhere near the 21st century of Clementi and the Legal Services Act.

I can't see how the Darrois reforms are going to reduce the fragmentation of the French legal profession. One lawyer who spoke about the reforms expressed strong doubts. Another mentioned that being a notary in France still depended on nationality and therefore excluded UK notaries. (This is being heard by the ECJ.)

Even though Darrois kept lawyer participation on his commission to the minimum, they have won through. Of course, it's possible that if he had come up with radical Clementi-style proposals, Liberty would be raising her tricolor once more and we would have heard the screams from London.

The final conclusion to draw from this is that the French legal profession doesn't want to liberalize in the same way that the British have. Nor it seems do the Americans. At least the US recognizes the difficulties it faces. And at some point New York state will liberalize its own rules to cope with the pressures of globalization. The French haven't realized that globalization has already been in action for some time. They have a lot to catch up.

Tuesday, June 23, 2009

Civil Justice

I went to a seminar on the decline of civil justice today where it was argued that mediation is a cheap alternative to adjudication. Here's proof.

(Thanks New Yorker)


Wednesday, June 17, 2009

Straight There No Detours

Avis Whyte and I have just finished an article derived from the research we did for the Bar Council on direct access to clients. It can be downloaded here.

The Bar has been a referral profession for many years and now it is attempting to reconfigure itself towards direct dealings with clients. This has a serious impact on the manner in which the Bar constitutes itself as a profession.

Our conclusion reads:
Modernity unsettles professional certainties. For four centuries the Bar has enjoyed many privileges (Prest 1986) but there has been a hollowing out of its professional core as its reserved areas have come under threat. The gradual erosion of the referral aspects of barristers’ relationships with solicitors and others exposes barristers to the contingencies of the market in a raw form not usually experienced. The rising intervention of the state into the lawyer-client relationship through the control of the legal aid budget is accelerating these moves. These are moves to bureaucratic control and potential proletarianization (Larson 1977: 232). The Bar is losing its grip on its professional project. Or is it? Muzio and Ackroyd (2008: 49) argue we are not observing the end of professionalism but rather various defensive manoeuvres by professionals to maintain their privileges.

How does the rise in direct access work fit with the changes in the Bar? In part it has to do with what Boon and Levin (2008: 77) described as “The legal services market has a multitude of sites in which different norms proliferate.” Barristers occupy many positions outside traditional private practice. They are in business, government, the Crown Prosecution Service, and even inside solicitors’ firms. And when we add to the mix an increasing diversity of professional members in gender and ethnicity, common cultural values change and may not hold. This is reinforced by the division in work at the Bar between those who largely undertake publicly aided work and those who act for private clients. Barristers paid by the state operate under considerable control in terms of what they can do and what they can charge for their labour. No equivalent constraints fall on private client practitioners: they function within the market. Further controls are imposed by chambers arrangements which are becoming more corporate in focus. Chambers are increasingly specialized in their practice areas. They target potential lateral hires, including groups of practitioners, and establish business targets, all of which compromises the ethic of individuality espoused in the Bar.

Although the fusion of barristers and solicitors is unlikely to happen, the introduction of Legal Disciplinary Partnerships in 2009 has opened up the organization possibility for the conjoining of the two. And when alternative business structures make themselves known, many conventional arrangements might begin to fail. Alternative business structures will seriously affect numbers and structures within the legal profession and increase the employed section of the legal profession. We suggested that up to a thousand law firms could fail in competition with supermarkets and other legal service providers. Barristers too will be affected.

With these eventualities direct access work grants the possibility of holding onto traditional values and procedures. Prest (1986) is clear that the settling of the referral structure of the Bar did not come into being until the 19th century, so that an earlier paradigm of professionalism for the Bar encompassed direct relations with clients. Attorneys and solicitors stepped in when geography made it difficult for clients. Direct access recaptures these pre-modern ideals of working. But perhaps of more significance is that barristers can situate themselves more centrally in the market through doing direct access work. Their potential for control over their work and professional relationships is enhanced.


Tuesday, June 16, 2009

We've All Felt Like This...

(Thanks to the New Yorker)

Play "404 Not Found" by Decal in the background, then it really works.
Helps they're Irish.


Wednesday, June 10, 2009

Busy Times Ahead...

I went to the Institute of Barristers' Clerks annual conference last Saturday. This is a precursor to my writing project over the summer, which is to complete my new book on barristers' clerks.

Barristers' clerks were my first ever research project, so I've been grateful to them for setting me on the research path. (More references to them here1, here2, here3 & here4).

For me one of the most interesting sessions was a Question and Answer session--The Generation Game: Clerking Past, Present & Future--where a senior clerk, a first junior, and a beginning clerk were interviewed about being a clerk and the changes they had seen.

David Goddard, the senior clerk, and Michelle Doyle and Reiss Nott (members of the IBC Junior Clerks Committee) spoke of how varied the job was , how unusual it was, and what it could offer.

Three things struck me about the conversation. One was that despite all the technological changes that had occurred (mobiles, computers, online diaries), the essence of the job hadn't really changed. The relationship between clerk and barrister is close. How one defines close I leave your imagination. This comment, however, came from the senior clerk and the most junior one.

The second point was the change in interaction between clerks. When I did my research most communication between clerks was either by phone or face to face. Now it's by email. According to all three it is now harder to get junior clerks to talk to each other face to face. They've become so accustomed to electronic communication that they find it hard to talk.

The third was the degree of specialization that has overtaken the Bar and so clerking. As David said, it was easy for a clerk to move from a criminal set of chambers to a civil set when he started, but now it's virtually impossible. Reiss, who is in a civil set, said he wouldn't know where to begin in a criminal chambers.

The first book was a slim volume. I think the second is going to be somewhat thicker.

While the materials are being collated I've decided to convert another piece of work into an article. Avis Whyte and I were asked to research direct access by clients to barristers for the Bar Council. The report is available on SSRN.

Given the Bar is going to be hit by the Clementi changes just as much as anyone else, I think this will be timely.

It's going to be a busy summer. Thank god it's raining right now....

Friday, June 05, 2009

Lawyer-Client Relationships

Banker on Bishopsgate
(Darrell Berry)

I have just posted on SSRN the final revised version of my paper on lawyer-client relationships. It is "Ambiguous Allegiances in the Lawyer-Client Relationship: The Case of Bankers and Lawyers".

The paper deconstructs the prototypical dyadic lawyer-client relationship in the context of corporate transactions. Most lawyer-client analyses view the relationship as a direct unmediated one between the two. I argue this is illusory and that without understanding the context of business transactions, much about the relationship is omitted or missed from analysis.

At a minimum the relationship is triadic. If, for example, a client is borrowing funds from a bank for an investment, even though the client's lawyer's primary duty is to the client, the lawyer always has an eye on the future business that might come from the bank. The lawyer's allegiances are pulled more ways than one.

For example, Jonathan Knee in The Accidental Investment Banker: Inside the Decade That Transformed Wall Street (2006), wrote of one deal:
This episode highlights an important and inherent conflict between banker and client in sales processes. After a successful transaction, the client disappears and any future business will come from the universe of suitors. This creates a sometime irrestible incentive to provide, or give the appearance of providing, some form of subtle preferential treatment to those most likely to offer something in return at a later date.
The paper uses a mix of interview data, ethnography, and documentary sources. I would appreciate any comments and feedback.

Tuesday, June 02, 2009

Blawg Review #214 by CharonQC

You know it's that time of year when Charon QC is asked to host Blawg Review. So here it is, number 214.

It starts with the immortal line: "On this day in 1812 the United States of America declared war on Great Britain" (which did happen on June 1).

Charon QC continues

Had enough of the Credit-Crunch?

This is an edition of Blawg Review for those who say… “When the Credit-Crunch gets tough… the Credit-Crunched get crunched with SMOKEDO… and blog.”

It is not X rated, it is office safe;  the Geeklawyer  fearing need not fear… but, to modify a phrase from a friend and colleague of many moons ago… There’s a plot… let’s go and lose it… come and join me.


His coverage of legal blogs is encyclopaedic--there's everything from criminal law to China.

And on a point of disclosure: He's put me in it too.