Tuesday, 5 August 2014

Legal practice in London from the French perspective

Today is my last day at Wainwright & Cummins. I have been training within the Family Department for precisely 6 months now, and this semester abroad is part of the overall training I have to undertake in France to practice as a lawyer.

The reasons I decided to apply for a position abroad was a very personal career choice and I felt that working on an international level would give me a chance to experience new cultures - although I may have chosen more exotic than London; French and English culture have far more in common than I expected, and I understand now why London is one of the biggest French cities in the world. I also wanted to tackle the challenge of living in a foreign city for more than a semester.

However, objectively, does it make sense for the French law school to allow their student to take that internship abroad?

Let me first state that the law school of Strasbourg is an exception. The city is already focused on international matters that it was easy for me to understand why legal experience abroad would compliment a law student’s education from that specific establishment. 

One of the CNB’s (Conseil National des Barreaux) representatives however, with whom I discussed the subject when he came to Strasbourg visiting the school to present the future reform of the French lawyers’ training, saw the opportunity to practice in another country as a loophole in the Law.

The different texts on the subject (31 December 1971 Act, 11 February 2004 Act, implementing decree 21 December 2004) states that, “au cours de la troisième période, l’élève avocat effectue un stage auprès d’un cabinet d’avocat”. Translated; the student will undertake a 6 months internship in a Law firm. As there is no specific reference to France, some schools including Strasbourg have decided to allow their student’s to practice abroad.

But it does not, according to the CNB, reflect the intention of the text, and the project of reform (currently discussed) will therefore aim at making sure students are capable and effective lawyers, ready to practice in France and familiar with French proceedings as soon as we pass our last exam.

I would be lying if I told you I do not sometimes wonder whether the choice to undertake my 6 month’s of legal experience in England, working within the English legal system will impact my ability to work in a French firm.

But those 6 months have taught be invaluable skills that I would not have been able to acquire in France. There are two main aspects of the English proceedings which I feel will demonstrate this point.

The Split Profession

It is common knowledge that French and English legal practice tend to differ on one crucial point: in France the “avocat” will represent the client in court and offer advice, whereas, In England those activities are split between the Solicitor and the Barrister.

I understand that although the texts allow Barristers to be directly instructed by clients, and that Solicitors often represent their clients in courts, the distinction is still very much present.

The split used to exist for a very long time in France, but eventually totally disappeared in 2011, with the merger of the “avoué” profession within the “avocats”. It was the end of a long process that started in the 1970’s which advised lawyer’s to professionally integrate through the order of the “avocats”.

On a macroscopic level, such a trend is helpful as the order of the “avocats” has never been larger and more listened to when it comes to defending fundamental rights of our clients (think about the Legal Aid system, it is a big issue in France as well). However, it does make it harder to gather a consensus, on any given questions, as the practice is so broad it is hard sometimes to actually define the practice of a “generic” avocats.

Although more specifically, one might say that it is up to any given “avocat” to create and craft their own practice; it is a shame that because the profession is unified, when confronted with an area of law you are not a specialist in, you will not be able to instruct another lawyer in your client’s case to deal with a specific issue. You will have to either let your client go, as you are supposed never to accept a case you do not feel confident handling, or spend a non efficient amount of time understanding the issue and wasting your client’s time and money.

The discussions between the Barristers and the Solicitors as I saw it during this semester is made of mutual teaching, emulation, partnership and trust. Each side is so focused on its practice and handling the issues each is used to dealing with, the result is much more efficient.

What I would like to bring back to France is a sense of humility; although I do love the idea of running a general practice, as it is the embodiment of the “avocat” profession in France, I am well aware now that for our clients’ sake, it is sometimes more efficient to divide the case if there is more than a single issue.

Proceedings Management

I have been amazed to discover how lawyers in English proceedings as a general practice manage to agree on a schedule or a Consent Order, with the help of the court.
It may well be I only spent time in the Family department - care case proceedings driven by the “26 weeks” limit - but still the principle seems to apply in all family cases as well.

It is my understanding that contested issues (dramatic handling of cases by one or more of the parties involved, or public interests to defend cases put aside) judges most of the time tend to supervise the time schedule of proceedings however drafted and handled by parties alone.

That is not, yet, common practice in France. Although in the past ten years, a new judge’s position was created for civil matters, the “Juge de la mise en état” to hold directions hearings, the impulse is commonly still within that judge’s hands.
The only possibility for lawyers to handle the directions related to their own cases exist in front of the “Tribunal d’instance” (Lower civil litigation tribunal), and consists of a written agreement between the parties and the court.

Still, the practice is new and lawyers, for they are used to a very confrontational way of handling their cases because of the active arbitration of the court, presumably prevent any delay in the proceedings.

And that is yet another “good practice” I will do my best to bring back to France.

By Corentin Dolivet


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