Legal Profession

From Max-EuP 2012

by Martin Henssler

1. Historical review

The origin of advocacy in Europe dates back to the 4th and 5th centuries BC. Even at that early point in time, citizens of Athens could pay speechwriters (logographoi) to draft pleadings for a forthcoming appearance in court. Professional lawyers (synegoroi) trained as rhetoricians later developed from these logographoi. The practice of commissioning a speaker for an appearance in court can also be found in classical Roman law. While the patronus appeared as a rhetorician in court, a iurus consultus took over the preliminary juridical work. From these two functions the occupations of advocatus and procurator evolved with the latter representing parties in court.

Beginning in the 8th century, what was known as a common procurator could be found in the Germanic legal tradition; this individual was appointed by the court but requested by a party. This spokesperson was, however, not a representative of the interests of the party, but instead a representative of the public right with public duties. This undertaking was honorary and uncompensated up to the 13th and 14th centuries. Only afterwards did this profession emerge as a salaried position, the procurator’s fees being paid by the parties of the law suit. Ultimately, the economic dependence occasioned by the remuneration paid to the spokesperson justified the status of a party representative.

During the reception of Roman law it was not only the profession of procurator that emerged, but also the position of advocate, an extrajudicial adviser for those parties that did not appear in court. This binary division was codified in the Holy Roman Empire of the German Nation by the Reichskammergerichtsordnung of 1495. Under this Act, the procurators—who could also advise the parties extrajudicially—held a position of precedence over that of the advocates.

From the end of the 16th century, the binary division of advocates and procurators loosened in continental Europe and was further suppressed by legal reform during the Napoleonic era. In the course of the 19th century, a single legal profession began to appear in continental Europe. Germany, in particular, achieved this result towards the end of that century.

In other European legal traditions, the division of the profession into procurators and advocates continued (and continues) to exist with varying degrees of rigidity. In the United Kingdom, the ‘solicitor’ coincides with the advocate and the ‘barrister’ with the procurator. From the Schools of Jurisprudence, the existence of which can be traced back to the 13th century, the Inns of Court developed, an institution later responsible for licensing barristers. Today, the occupational duties of solicitors and barristers partially overlap but are still basically separated. For example, solicitors but not barristers are admitted by the Master of the Rolls. Furthermore, performing tasks in both occupational arenas at the same time is not allowed. Only barristers are entitled to plead in court, and, apart from the occasional exception, they do not have the right to directly contact the represented party. Rather, they receive their instructions from a solicitor who prepares the case. In turn, solicitors only have a limited right to plead in court (right of audience).

In France the avoué still resembles the procurator and the avocat still resembles the advocate. These two professions evolved from the original five legal professions (avocat, avoué, agréé, conseil juridique and procureur) as a result of reforms undertaken in 1971 and 1990. Previously, the agréé conducted cases in front of the Commercial Court and the specialized task of the conseil juridique was to provide (extrajudicial) legal advice. Today, the avocat has a broad monopoly in respect of pleadings before the court and, with some exceptions, on the provision of legal advice. In contrast, the avoué represents the party before the courts of appeal (cours d'appel) and writes the corresponding pleadings. However, in the course of the French reform of civil procedure law, the profession of avoué has been abolished effective 1 January 2012. The avocat and avoué will subsequently be consolidated into a single profession.

The corresponding terms in Spain (procuradores and abogados) and Portugal (solicitadores and advogados) are, in light of the above, self-explanatory.

In Belgium the profession of the avoué, who solely wrote pleadings but did not appear in court, was abolished in 1967 by the Code judiciaire in favour of the uniform activity of avocats.

After overcoming the ruling communist system, advocacy in the Baltic States, ie Estonia, Lithuania and Latvia, has been above all marked by a movement from the Soviet model to a system with its own national characteristics. In these states, the original development of the legal profession began in 1860 with the reforms of Czar Alexander II and the initiation of the judicature. Due to initial difficulties in qualifying enough lawyers in a short period of time, beginning in 1874 private lawyers without any academic education (tschastnije powerennije) were admitted to the profession alongside sworn-in lawyers (prissjaschnije powerennije). This stopgap solution was, however, subsequently abolished in the 1940s.

2. Professionalism and duties

Advocacy is regulated in almost every European country (in Malta, a self-contained regulation for the legal profession (Lawyers’ Act) is under preparation). The applicable ‘professional law’ eg training and licensing requirements, rules of professional conduct, supervision and discipline is determined by the Member State in which the lawyer is admitted. According to Art 4 Dir 77/249 and Art 6(1) Dir 98/5, lawyers involved in cross-border transactions or planning activities abroad are effectively subject to both the ethical code of the home state and the host state (double deontology). The stricter law—provided that it passes the test of proportionality—is applicable if a conflict of laws arises. However, various questions have not yet been answered conclusively.

Aside from the previously mentioned legal professions in Europe (especially in Member States of the European Union and states signatory to the Treaty on the European Economic Area) the following legal professions exist: in Belgium avocat/advocaat/Rechtsanwalt; in Bulgaria advokat; in Denmark advokat; in Estonia vandeadvokaat; in Finland asianajaja/advokat; in Germany Rechtsanwalt; in Greece dikigoros; in Ireland barrister/solicitor; in Iceland logmaur; in Italy avvocato; in Latvia zverinats advokats; in Liechtenstein and Austria Rechtsanwalt; in Lithuania advokatas; in Luxembourg avocat; in Malta advocate/legal procurator; in the Netherlands advocaat; in Norway advokat; in Poland adwokaci/radcy prawni; in Romania avocat; in Sweden advokat; in Slovakia advokát/komercný právnik; in Slovenia odvetnik/odvetnica; in the Czech Republic advokát; in Hungary ügyvéd; in Cyprus dikigóros; in Switzerland Advokat/Rechtsanwalt/Anwalt/Fürsprech/Avocat/Avvocato.

Until 1 July 2008, lawyers in Germany held an exclusive right to provide legal advice and legal representation. With the entry into force of the new Rechtsdienstleistungsgesetz, legal advice can also be provided by non-lawyers, but to a very limited degree. Comparable restrictions regarding the provision of legal advice are not to be found in any other European legal system. As a basic principle, lawyers in the various Member States (except the Netherlands, Sweden and Finland) have an exclusive right of legal representation. Even in states without any legal regulation, there is usually a factual monopoly on legal representation before a court. The Nordic legal systems in Finland, Sweden and Norway are noteworthy exceptions. These states are characterized by their strong tendency towards deregulation. Since 1990, lawyers have been competing with a great number of Rechtshjelper in Norway. In Latvia lawyers have the exclusive right to act in criminal defence matters. This right was evaluated pursuant to a constitutional complaint in 2003 but was adjudged to be in conformity with the Constitution.

In most European countries lawyers have to undergo a licensing procedure before their admission. In Germany, the bar association of the district in which the lawyer is located is responsible for the admission. The bar associations in Germany were founded as public corporations in 1879 after the Reichsrechtsanwaltsordnung (RAO) became effective. Their scope of responsibility corresponds to the districts of the higher regional courts and their competence is specified in the Bundesrechtsanwaltsordnung (BRAO). The bar associations are united in a federal bar association which was founded in 1959. A three-stage independent jurisdiction (Anwaltsgericht, Anwaltsgerichtshof and Anwaltssenat at the Bundesgerichtshof) decides on misdemeanours committed by lawyers which are relevant to their profession. Besides the bar association, there is also the Anwaltverein (DAV) in Germany which was founded by the German lawyers in 1871 on the basis of freedom of association. The Anwaltverein was re-established after World War II and today represents approximately 250 local registered lawyer societies representing more than 66,000 lawyers.

In many Member States prospective lawyers are obligated to pass a two- or three-year traineeship after their education at university. Today, Austria has the longest training period, lasting five years. Spain has only recently introduced a comparable rule. From 2012 on, Spanish law school graduates will be required to complete a traineeship and examination before being admitted to the bar. In France the former two-year traineeship (stage) was abolished by Reform Law No 130 in 2004 and was replaced by a longer education period at the école du barreau.

Certain primary obligations for lawyers can be observed in the professional laws of every European state and, in addition, in various constitutional democracies outside Europe. Independence, the ban against representing conflicting interests and the duty of confidentiality—essential for the mutual trust between lawyer and party—are among what are understood as ‘core values’. All information given to the lawyer during counselling and the proceedings falls under the duty of confidentiality.

Although the traditional ban on advertisement has been continuously relaxed, there are still restrictions in many national professional laws, eg a ban on advertisement in newspapers and other media. However, due to the efforts of the European Commission, it is conceivable that in the future the advertising laws relating to lawyers will not be so different from those applying to other professions (see 4. below).

3. Trends of development

In recent decades the occupational profile of lawyers has undergone a transformation due to international influence. The traditional profile is based on the assumption that a single lawyer is experienced in every branch of the law. But today there are more and more lawyers who specialize in individual fields of law. Commercial law, in particular, has to a great extent detached itself from the remaining legal fields. This development is accompanied by striking salary differentials between traditional sole practitioners and lawyers working in large law firms as management consultants. A consistent representation of the interests of both of these groups becomes more and more difficult.

Today, the number of admitted lawyers in Europe is rising steadily. Since 2000, the annual growth rate in Germany is 4 per cent. As of 1 January 2011, 155,679 lawyers were admitted to practice, approximately 30 per cent of whom were female—a rather low rate compared to other European countries. Nevertheless, the rate of female lawyers is continuously increasing in every Member State. In Bulgaria, Estonia, Latvia, Luxembourg and Slovenia more than half of the lawyers are female.

Since the beginning of the 1990s there has been a distinct trend towards deregulation in the legal profession—as well as in other professions—which has not yet reached its conclusion. A bill to merge the professions of avocat (solicitor) and avoué (counsel lawyer) by 1 January 2012 was introduced in France on 1 January 2010. The dichotomy in the United Kingdom has long been a topic of discussion and has been loosened by several reforms. Furthermore, the right of lawyers’ associations has been deregulated. For example, Denmark was one of the first countries allowing corporations for lawyers, namely a limited liability company and a joint-stock corporation (stock corporation) in the form of the aktieselskabsloven which was introduced in 1991. France has permitted corporations for lawyers since 1992. The formerly known French corporations—Société à Responsabilité Limitée (SARL), Société Anonyme (SA) and Société en Commandite par Actions—were modified and tailored for various professions. Pursuant to British law, the personal liability of the acting partner is still an enduring element. Generally, there are perceptible efforts to introduce capitalistic forms not entailing personal liability in place of the partnerships which were formerly the only form of professional organization permitted.

Due to the freelance character of the profession, active participation is still essential to being a partner in a law firm in most countries. A minority interest is not allowed. Indeed, with a holding company for lawyers, France allows structures similar to a corporate group. Though, also in this kind of holding company, the majority of the partners have to be active lawyers or law firms. Minority holders can be retired lawyers, heirs and members of other regulated legal professions. England first allowed minority interests for so-called Alternative Business Structures (ABS) by passing the Legal Services Act 2007.

4. Convergence of law

A binding substantive law for lawyers does not exist at the European level. Only the national legislatures have legislative competence for professional law, a situation which is not doubted by the European Court of Justice. Only the implementation of European Competition Law (Art 101 TFEU/81 EC) and the fundamental freedoms, specifically the freedom of establishment and the free movement of services (Arts 49 ff TFEU/43 ff EC and 56 ff TFEU/49 ff EC/), exert influence on the national professional law. Thus, the European professional law for lawyers consists of several state rules which accommodate the fundamental freedoms and implement EU directives in national law. Furthermore, the jurisdiction of the European Court of Justice (ECJ) is binding.

As regards the practice of law in Europe, of primary importance are (1) the Council Directive to facilitate the effective exercise by lawyers of freedom to provide services (Dir 77/249), (2) the Council Directive on a general system for the recognition of higher education diplomas awarded on completion of professional education and training of at least three years’ duration (Dir 89/48) and (3) the Directive of the European Parliament and of the Council to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained (Dir 98/5). Directive 98/5 allows lawyers to establish a professional practice and provide legal advice in every Member State of the European Union while using the occupational title of their home country. Such a lawyer can gain the occupational title of a Member State in which he has worked for at least three years ‘effectively and regularly’ without taking any further exam. Directive 2005/36 intends to modernize and harmonize the European system of acceptance of diplomas. The former directive on acceptance of university degrees was integrated in the new directive without any modification. Article 14(3) of Dir 2005/36 determines that a lawyer who wishes to use the occupational title of a Member State which is not his or her home country has to take a qualification examination in order to do so.

The professional activities of lawyers are also influenced by Dir 2006/123 on services in the internal market, although the lawyers’ associations in Europe were successful in excluding transactional lawyering from the ‘principle of the free single European market’ (country of origin principle). In the future, lawyers will also have to respect the professional law of the host country. The Member States are bound to review certain problematic national rules for compliance with the demands on restricting the fundamental freedoms under Art 15 of Dir 2006/123 (screening of rules). The European Commission aims to reduce the number of national professional laws particularly with regard to (1) the law of fees, especially minimum rates, (2) advertising law, (3) the conditions for access to the profession and (4) professional cooperation.

The Conseil des Barreaux de l’Union Européenne (CCBE), founded in 1960, is an independent and representative council of the European Union legal profession which is based in Brussels. It is composed of bars and law societies in Europe and was granted official admission before the European and International administration agencies by the European Court of Justice (ECJ) (Case C-155/79 – AM & S Europe Ltd [1982] ECR I‑1575). The former intention of the CCBE to harmonize the professional law systems of all Member States was not feasible due to the significant differences in the national rules as well as national doubts about overcoming traditional conventions. Therefore, a non-binding ‘Code of Conduct for European Lawyers’ was adopted in 1988; the current version was last updated in 2008. This code only regards cross-border activities and is only binding insofar as it is transformed into national law. However, every national bar association has by now adopted the code either by including the code in its national professional law or by a blanket reference to it. In Germany this reference is accomplished by § 29 of the Rules of Professional Practice (BORA), which is similar to rule 4 of the Solicitor’s Overseas Practice Rules 1990 in England and Wales.

Additionally, the International Bar Association (IBA) has issued conduct rules for cross-border activities called the International Code of Ethics (first adopted in 1956, the present version was authored in 1988). As with the CCBE instrument, this code is only binding after incorporation into the national legal systems. While Germany has thus far abstained from such an incorporation, the Council of the Law Society in England and Wales adopted the IBA code for solicitors who practise in England and Wales.

In contrast to the CCBE, in which every state is represented by a delegation, the Fédération des Barreaux d’Europe (FBE), founded in 1992 as an association of European bar associations, has local national bar associations as members.

Literature

Julius Magnus, Die Rechtsanwaltschaft (1929), Hans-Jürgen Rabe, ‘Dienstleistungs- und Niederlassungsfreiheit der Rechtsanwälte in der EG’ in Festschrift Walter Kolvenbach (1992); Martin Henssler and Jörg Nerlich, Anwaltliche Tätigkeiten in Europa (1994); Alan Tyrrell and Zahd Yaqub, The Legal Professions in the new Europe (1996); Hamish Adamson, Free Movement of Lawyers (1998); Eberhard Fedtke, Anwaltsmarkt in Europa (1999); Dieter Kolonovits, Anwaltsrecht in EU-Beitrittsländern (2003); Diana Bartoszyk, Anwaltsberuf im Wandel (2006); Bernd Kannowski, ‘Anwaltstaktik und Anwaltsethik im Mittelalter’ (2008) NJW 713; Martin Henssler, ‘Die internationale Entwicklung und die Situation der Anwaltschaft als Freier Beruf’ [2009] Anwaltsblatt 1; Susanne Offermann-Burckhart, ‘Berufsregeln der Rechtsanwälte in der Europäischen Union (CCBE)’ in Martin Henssler and Hanns Prütting (eds), Bundesrechtsanwaltsordnung (3rd edn, 2010); Christoph Hommerich, Matthias Kilian and René Dreske, Statistisches Jahrbuch der Anwaltschaft 2009/2010 (2010); see also <www. legalprofession.uni-koeln.de> and <www. anwalts recht.uni-koeln.de>.

Retrieved from Legal Profession – Max-EuP 2012 on 02 October 2022.

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