The French government has had two recent Clementi-style investigations into the legal profession. The terms of reference in each case foresaw the possibility of major changes in governance. In response to the first report, gradualism won the day. We will see what happens with the second.

The first was a commission set up three years ago by president Sarkozy under the chairmanship of Jean-Michel Darrois, a leading Paris lawyer. Among other things, he was given the task of recommending whether the notarial profession should be merged with advocates. Darrois decided against that, but recommended instead that lawyers should be allowed their own version of the notaries’ prize, the authentic act. This was approved by the government, and a law has now been passed to introduce the lawyer’s act (‘l’acte d’avocat’), despite a strenuous lobbying campaign by notaries to see it defeated.

For those who want the details, Law no 2011-331 of 28 March 2011, on the modernisation of the legal and judicial professions, was published in the French Official Journal of 29 March 2011, and created the lawyer’s act in three articles (66-3-1, 66-3-2 and 66-3-3). The law aims to reinforce the legal certainty of agreements, particularly contracts, and to reduce the number of claims, by encouraging people to seek advice from a lawyer. Signature of the agreement by the lawyer will prove that the duty to provide advice has been fulfilled and that necessary verifications (identity, legal capacity, anti-money laundering compliance) have been carried out. When the lawyer is the sole drafter of the agreement for different parties, he will have to make sure he gives impartial (what the French call ‘loyal’) information to all parties. Signature by the parties will have to be prior to the countersigning by the lawyer, which must be undertaken personally and not delegated to a clerk or a paralegal.

From the legal profession’s point of view, the most important long-term aspect is that the lawyer (‘avocat’) is now formally recognized as an adviser/consultant and as a legal professional responsible for drawing up contracts. This is important in the French market, where French lawyers have in the past been seen as tied more to the courts (closer to our tradition of barrister). It will give them a competitive advantage, particularly against notaries, but also against other professionals involved in the transactional market, which is now estimated at around 70% of the profession’s work. The one disadvantage is that the lawyer’s act, unlike the notarial authentic act, will have greater probative force but not executory force.

The second major government-commissioned inquiry was undertaken by Michel Prada, a distinguished player in the French financial services field (for instance, former chair of the Autorité des Marchés Financiers). His brief came both from the Justice Ministry and the Ministry of Economy, Finance and Industry, and was to look at three things: the consolidation of Paris’s place in international arbitration; the question of how lawyers and companies should inter-act (which is really our old friend: the question of what to do about the status of in-house counsel in France, and whether they should be brought into the profession of ‘avocat’); and the international competitivity of the Paris legal market. He reported on 31 March of this year.

There are 15,000 in-house counsel in France, and 52,000 ‘avocats’. Prada recommended that in-house counsel should be integrated into the bar and become subject to the bar’s professional rules. With a specific reference to the position in the UK and the US, he recommended that, if an in-house counsel becomes subject to an administrative or criminal investigation, the French equivalent of legal professional privilege should apply.

But French ‘avocats’ are not happy. At the end of last year, the French national bar (Conseil National des Barreaux’ or CNB, which is one of the CCBE’s members) voted against the fusion of the two professions. Because the Prada report recommended some different treatment for in-house counsel, the CNB has now issued a statement opposing the idea of different ethical rules for different lawyers, and highlighting its support for a single code of conduct and single profession.

So, do not think that you are alone in being investigated and revolutionised. Our brothers and sisters on the other side of the Channel are also having an interesting time.

Jonathan Goldsmith is the secretary general of the Council of Bars and Law Societies of Europe (CCBE), which represents around a million European lawyers through its member bars and law societies

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