English practice of law

 Avocate contentieux international de l’arbitrage.

 Exposé : en anglais ou en français, mais exposé discussion : donc tout le monde doit préparer
l’exposé. Le thème de l’exposé fait partie intégrante des sujets potentiels d’examen. Les
exposés supposent la lecture de documents. 1 exposé chaque semaine.
 Contrôle continu. Devoir sur table à la dernière séance de 3H.
 Sq
 cbakerchiss@meyerfabre.com

Exposés : souvent des présentations de rapports ou de textes de lois : cf. le doc. et les retombées +
analyse critique. Thèmes : (à partir de la semaine du 22 janvier)

- (2 exposés) Présentation du rapport Clementi + Présentation de la partie I. et partie III du

legal services act 2007
- Présentation du rapport Clément (rapport français) sur la grande profession du droit
- (2 exposés) Présentation du rapport Haeri (rapport français) : nouveaux modes d’exercice
du droit + présentation de la partie V du legal services act 2007 sur les alternatives business
structures.
- (2 exposés) La confidentialité (français) + legal privilege (anglais – équivalent de la
confidentialité française).

Introduction.
It is as you may imagine a vast topic. It covers unlimited topics. It is geographicly limited to England.
It excludes the pratice of law in Scotland, in Irland, and also in The USA, Australia and other Common
law countries.

Some Common Law countries are federal states : it means that there is not a single pratice of law. In
the USA for example, fifty law.

The rules of all these legal systems are closed to others.

The aim is to study comparative law. So, general overview of basic concepts which help us get
familiar with Common Law countries. At the end of the court, we will be supposed to master all
terminologies, and identify the main differences between the way Common Law approaches and the
way french law approches of pratice of law.

As we said, the structure of the class will be a Common Law course : one or two documents to read
before to each class, and we have to read this documents, thinking about the way in which the same
cases will be solved in France, and thinking about issues in French law. It will be include in the scope
of the exam.

What pratice of law is about ? It is about three things.

- It is about who can practice law : it is the study of the legal praticioners.
- It is the question of how we pratice law. Here we will take about effects/déontologie, and
some of the specificities comparating the French practice of law : question of legal privilege

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 and condidentialité, and preparation of witnesses, and to some extent if we have the time :
we will see the cross-examination in practice.
- The last question is no really a question : it is about concretly giving advices and defending
your client in court if we are a lawyer but not only in court. More genelraly : helping him to
solve his problem with the law. It is about the key features of the law : legal assistance and
legal representation.

We will see the basic rules. In English universities, there is generaly a whole course about legal
drafting. We will try to study the drafting of some contracts which are tipical.

Basicly, within these three issues, we will study :

- The legal professions in England and Wales (who).

- Effects in the practice of law (how).
- Civil litigations in England and wales to have a basic idea.
- Basic rules on legal drafting.
- The study of the key contractual provisions (if we have the time) from a comparative law
perspective.

The main difficulty of the classe is to find the sources. There are some books on comparative law and
contracts, but no books of English pratice of law except in the library of Cujas. In fact we will find
many usefull ressources in internet :

- Legal profession :
 Bar Standard board (équivalent du site du barreau pour les barristers) :
www.barstandardsboard.org.uk.
 Equivalent for solicitors : www.sra.org.uk.
 Law society : www.lawsociety.org.uk.
 www.barcouncil.org.uk.
 Office of the legal services ombudsman : body that oversight all the complaints of
memebers of the legal progfession (engager la responsabilité d’un professionnel du
droit) www.olso.org.
 Ministery of justice : www.justice.gov.uk.
 The civil procedure rules (équivalent du Code de procédure civile plus détaillé et plus
clair) : www.justice.gov.uk/courts/procedure-rules/civil.
 www.judiciary.gov.uk/about-the-judiciary/advisory-bodies/cjc (civil justice council).
- Case law : www.supremecourt.gov.uk.
- Legislation : www.legislation.gov.uk.
- Other general website relating to general practice of law :
 Court management and legal forms : www.hmcourts-service.gov.uk. It is a court service.
 Court service for criminal matters : www.cjsonline.gov.uk.
 Legal services commission : www.legalservices.gov.uk
 Website on the judiciary : selection of speeches of magistrates and practice direction to
the supreme court : www.judiciary.gov.uk.
 Alternative discussion : www.adrnow.org.uk + www.civilmediation.org.

Let us introduce with the basic landmarks. These landmarks are necessary to understand the course
and cases we have to read. We have to keep them in mind and they concern the English legal

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system : English pratice of law = how to practice the law in England and the settings of practice of
law.

We will have to discuss this three words : « English », « pratice » and « law ».

« English ».

That is to say pratice of law in England. But it is not correct : the real title of the country is the United
Kingdom of Great Britain and Northern Irland. However it is common to refere to the Britain or the
UK, and in fact England is just a part of Great Britain, composed of several islands. There are four
countries :

- England.
- Wales.
- Scotland.
- Northern Irland.

The Wales is a principal/principauté. Wales has his own legal system. It is the law of Wales (1535). It
has been annexed by England. The law of England would apply in Wales too. The effect of this in so
far we are concerned in this class is that the title of this course is wrong : we will not study the
practice of law in England but the practice of law in England and Wales. There is a Superior court of
England and wales. The body wich regulate the solicitors (the law society) in in fact named the the
law society of England and Wales.

All the countries of Great Britain and Northern Irland are begening more independant. The
Government Wales act 2006 granted to Wales more powers. Now, it is permits to pass act of
Assembly, which are legislative instruments only applicable to Wales. It is a way of independance,
but it is limited.

For the purposes f the course, we will study the law of England and Wales.

Now, Scotland : it is exclude from the scope of this class : it is a seperate country. To have the
framework in our head : Scotland : 1707 Act of Union. After battle between the two countries,
Scotland joins to the Union. The effect of the act is to distinguish both and to create the new
Parliament of the United Kingdom : Westminster. The most important part of the act is the
preservation of the Scot’s law (mixe de droit civil et de Common Law). All the scotish legal system is
preserved, and so the scotish practice legal system. It means to be a specific provision wich extended
to Scotland.

The last country is Nothern Irland : 1920 : introduce in the Great Britain. Pirde 1920, itw as a whole
country. It transformed the Great Britain into a new body which is the Great Britain and Irland.
Corporation between the parliaments into some legal status. English law was applicable in the UK
and there is also individual irish law. In the 1920 the UK parliament partition into two part the Irland :
south Irland is an independant country and the northern Irland, in 1920, the UK became the Great
Britain and Northern Irland. But Northern Irland keep its own legal system. But Irish law is closed to
English law.

Northern Island and Scotland are out of the scope of this class.

This settings are important : we have to be able to understand and read the legal sources. We will
have to read acts of Parliaments. Westminster is the Parliament of United Kingdom. An act of
legislation does not affect the right of parliament to pass legislation that affect scotland and northern
irland : it is the technic of extent : if an act of the UK parliament is silent as to its extent, it means that

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it only applies to England and Wales : it need an express provision to be extended to Scotland and
Northern Irland.

« Legal ».

What is law ?

- Set of rules which state what we can do or what we cannot do : prohibition and autorisation.
- If law = source : Restrictive definition : act of parliaments ; extentive definition : act of
parliaments, case law, etc.
- Philosophy meaning : directs behaviours.

We will discuss this term in connection with « pratice ». It is true to talk about a set of rules, but
trying to define law is a really difficult task : philosophers and legal profession tried to do it. The
question is what is law, and what the purpose of the law is ?

We can agree that law can be defined simply as a collective body of declarations by official
authorities that establish rights, duties, constraints, and freedoms. Law is of course a set of rules, but
it is more : the definition of practice in general term : it is to actively pursue or to be engaged in an
activity. When we talk about law, we say that we practice law.

Practice = exercice du droit (et non pas pratique du droit).

The practice of law, in a restrictive sense, has been defnied in certain countries but not in all
countries. It is a bruning issue to know what is the practice of law. Some states in the US have
adopted an un-authoriezed pratice of law regulation, and this enables to defined what is the rpactice
of law. We can find in www.americanbar.org that their is no one definition. In the US, the practice of
law has been defined as the representation of the interests of another person by informing,
counceling, advising, assisting, advocating for, or drafting documents for that person, thrue the
application of the law, and associated legal principals to that person’s fact and circumstances. It is an
example of law, but it is a good example of how we can describe the law. This is an illustration of a
definition, but there is another which has been proposed by the US department of justice who
propose a model definition : we can read it if we want to (application of legal principles and
judjments which regards circumstances (...). A person is presumed to practice law if.. on behalf on
another). The definition turns around types of activities.

The principal is that anyone can practice law (of course, there are exceptions). In France, there is a
burning debate for the last five ten years about l’ubérisation du droit, l’ouverture du marché du droit
à des sociétés commerciales non gérées par des juristes : c’est au cœur de ce sujet/débat qui est le
débat de l’exercice du droit : qui peut exercer le droit et dans quelles conditions ? Faut-il restreindre
l’exercice du droit à certaines personnes ou l’ouvrir pour en permettre un meilleur accès et une
baisse des coûts). Il faut garder ce débat en tête pendant le cours (le rapport Haeri en fait beaucoup
mention).

In the UK in general and in England especially, there is unauthorized practice of law. First
consequence, permitted to practice law even if not qualified as a barrister or a solicitor, as long as

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the practice does not the reserved activities, and as long as the secretary/the para-legal (...). The
second consequence is that anyone is authorized to give legal advices so long as he or she does not
call himself barrister or solicitor. Ex : a bank wants to provide legal advices to its client : it is possible.
It means that for example, anyone who has gained experience by working in a insurance company for
example, especially with insurance contratcs : you have an experience and gathered credible
experience on litigation and advices. It can be interesting in fact because you could be considered in
fact with more experience than a basic lawyer without experience. This is the idea behind this
rationality. In France, only qualified lawyers can pratice law.

Ubérisation du droit = pas tout à fait exact : ici, offre de digitalisation de certains services juridiques,
en tout cas dans le domaine du juridique. On a des services de référencement d’avocat pour une
mise en relation directe avec les clients, mais ça n’a rien à voir : c’est une autre problématique.
(Demaderconseil.com, captaincontrat, divorce-discount.com, etc. : pas de responsabilité
professionnelle, alors que les avocats si, donc plus de garanties. Mais est-ce que ça ne peut pas se
justifier pour des services basics, ou pour des personnes qui ont accès à des conseils juridiques alors
qu’elles ne seraient pas allées voir un avocat dans tous les cas, etc.). En Angleterre le principe est la
liberté, l’exception = les activités réservées limitativement énumérées. Très précis comparé à la
France où c’est très vague. L’Angleterre est très stricte sur le périmètre réservé, mais pour le reste,
très souple.

 Périmètre de l’exercice du droit = le grand débat.

Prof : les sites internet n’ont pas affecté le travail des avocats, et on gagne en qualité. Toujours
autant de clients.

To finish on the legal practice, we will work on the Clementi report, but brief introduction : in 2003
Sir David CLKEMENTTI was appointed to carry out an independant review : his report which issued in
2004 has a main recommandation : the establishment of a regulatory skilld to allowed
multidisciplinary praticices, the establishment of alternative structures, allowing lawyers and non
lawyers to manage legal prazticices. He also recommanded the creation of a regulatory oversight
body controled by non lawyers (very good thing selon la prof. mais c’est pas le cas en France) and
governance structures in order to promote the public access.

Three years after the Clementi report, the legal services act was acted. It really overhold the
regulation of legal services of England and Wales. It is a quite long act. The Clemento report and the
law were instigated because of the UK Government who considered that in England there was an
unmet need for legal services. And the Government wanted David CLEMENTI (..) to unauthorized
lawyers/non-lawyers/people with no legal background could improve access to justice and to legal
services. Same unmet need in France ? Open to non lawyers should improve legal access in France ?

In Engmland, the definition of « legal » does not include everything lawyers do. In fact, there are
many people who are authorized to practice legal institution. Legal bodies are authorized to license
providers of legal services : barristers and solicitors. There are not the only legal service providers.
We will study them. When we talk about legal activities, from an English law prospective, legal
activities are defined in the following words : first reserved activities, which are defnied by the LSA
2007, and this reserved activities are six : (we have to know them) :

- Rights of audience : appearing as an advocate in court. (Plaider).

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 - Notarial activities (en Angleterre, pas de notaire, pas comme en France où la profession est
séparée des avocats. En Angleterre, qualified lawyers ont les activités notariés) : certified
documents and transactions.
- Probate activities : all activities involving a State.
- Administration of oaths (serments).
- Activities related to reserved instruments, relating to all activities of transfert of ownership
real property (propriété immobilière)
- The conduct of litigation, which includes issuing proceedings before a court, and
commencing prosecuting of defending those proceedings (conduite du procès).

So, these reserved activities are limited. The list is exhaustive and limitative. Some activities are
reserved to solicitors, some are reserved to barristers.

So legal activities = reserved activities + anything which constitute one or both of the following either
the provision of legal advice or assistance in connection with the application of the law or the
resolution of legal dispute, or the provision of representation in connection with any matter
concerning the application of the law or legal resolution of dispute. All of this constitute legal
activities. So we have a definition since 2007 (LSA).

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The study of the legal professions in England and Wales.
One of the key aspect of the practice of law is to define who are the legal praticioners. First, we must
know the various branches of the legal profession, then understand the main differences between
the two main legal professions, and also understand who a person qualifies a person as a member of
legal professions.

I. Various professions.
In England we talk about lawyers : inapropriate terms : it is daily used, enven in the dictionnary :
generaly term : lawyer = member of a legal profession. But this definition can be found in common
dictionaries but most law dictionaries does not define the terme. Nobody in England is a lawyer
because there is no single legal profession.

Two main legal professions and many secundary ones. The first distinction is that they are qualified
memebers of the legal profession, and non-qualified members of the legal profession. Among the
qualified members of the legal profession, there are in England two branches : barristers. In america :
qualified lawyers = attorney. In the US, there is only one single branch/legal profession.

So, barristers and solicitors, then other people who consider them as lawyers even if there are not
qualified members. Within the non-qualified members of the profession, we have legal executives
and paralegal executives.

A. The baristers.

It is the oldest branch of the profession, also refferred as counsel or of counsel. Barristers are
collectively known as the bar, and when a person becomes a barrister, he is said to have been called
to the bar. This profession exists since the 13th. They have the sole rights of audience in the higer
courts. There are entitled to appear in court and perform advocacy.

Be careful, advocacy includes both written and oral advocacy. They have the ability to act as an
adovcate and to represent their clients in court. They have an inns of court, which is also called
honourable and learned society. They are in four courts :

- The middle temple.

- Inner temple.
- Grey’s Inn.
- Lincoln’s Inn.

They have specialized matters. Ex : Lincoln’s Inn = chancelery matters. They are responsible for
training barristers. The training of a barrister is specific, dividing in three part :

- The academic stage : common for those who want to be solicitors also. Direct entrance for
law graduate, otherwise non-law gradutate must complete with a conversion course which is
also called common profession examination (CPE), and this academic stage is designed to
have a basic body of legal knowledge.

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 - The vocational stage : also called the bar professionnal training course, where futur barristers
learn adovcacy skills, legal drafting, effects and legal research. It last one year, and coast
around 20 000 pounds, and we are not certain to qualified.
- The pupillage : only for one third of the qualified at the end of the vocacional stage. Pratical
course only. Once you qualified, you are called to the bar.

It is the bar counsel who is taking the responsability of regulating barristers.

The division of responbility between the Inns of court and the bar counsel is not very clear. It is a
problem we will see in the Clementi report.

Once a barister is fully qualified, he can practice. On each Inns of court, barristers need to find a place
where they can practice : it is called the tennesse. They are all self-employed. They join together to
put their ressources althought 2010 (en associations). Now they can establish legal partnerships.

They pay a rent and they give a proportion of their income to the chamber to cover the expensies of
the chamber. Chambers themselves employ some staff (clerks, assistance, etc.). The clerk has in fact
a very important place in the chamber, because it depend on the clerk to have work : barristers are
not really choosen the cases. Since 2010, now they can create legal partnerships, so it is no always
true, but it is the general rule.

Barristers’ work : they are the one who have the rights in every courts. But in fact, it depends on the
area of practice, soi t is not always true. But it is true to say that adovacy is the most important part
of their work. They also do research and preparation of documentation. In fact the most important
aspect of their work is the provision of counsel’s opinion. They identify the key evidencial difficulties.
(...).

Traditionaly barristers are not instructed by the client. The public does not have access to a
barristers, and that will change. Only solicitors have the power and capacity to instruct a barrister. So
in fact the client of a barriste ris a solicitor. The lay client see the solicitor, and if there is litigation,
the solicitor instruct the barrister who then provide his opinion to the solicitor about the success and
difficulties of the litigation. Then when it is decided to proceed with the litigation (initier le litige) the
barrister will be involved in the drafting of varioux documents, including the claim forms (on verra
plus tard ce que c’est), the particulars of claims (pareil, on en reparlera), defenses and of course
questions to witnesses (because is England, it is up to the barristers to ask questions to the witness,
with examination and cross-examination). In Francen the judge is responsible for the question to be
ask to witnesses. Barristers are specially trained in questionning witnesses.

When a barrister appears in court, he appears in the full rig (cf. rig ?) (perruque, robe, gants, etc.). It
is very strict, but evolutions since 2003. In fact civil judges have abandoned the weaks (perruque,
vérifier mot) and now the rules provided is dispense of all or a part of the court dress. We can be
dispensed of the full rig. Not for criminal matters, but for civil matters at least.

In term of practice, there is a vary important rule that we mentionned without giving its name : the
cab rank rule. To a certain extent, solicitors have the right to pick and choose their clients. However,
barristers are bound by their conduct to (...) according to which a barrister cannot choose his clients
and is obliged to accept instructions from a client regardless of any personal dislike. For example in
England, we cannot say that you will never defend a terrorist. You must accept all instructions of any
clients. From the english prospective, it ensures equal access to the justice. This rule = large debate
which comes back regularly. This rule is set out at rule C29 of the bar standard board handbook
(sorte de code de conduite). It states that if you receive instructions from a professional client, and

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these instructions are appropriate taking into account the experience, the seniority and field pratice
of the barrister, you must subject to the rule stated in Cr30 : accept instructions especificly adressed
to you, irrespective of :

- The identity of the client.

- The nature of the case the instruction relate.
- Whether the client is paying privatly or is publicly founded (ex : aide judiciaire).
- Any belief or opinion which you may have found as to the caracter, reputation, cause,
conduct, guilt or innocence of the client.

 C’est une obligation, il faut accepter le cas. Il peut conseiller au solicitor qui instruit de ne pas
aller en procès dans son counsel’s opinion. En France, on peut refuser : c’est un principe
primordial : on est libre d’accepter ou non : c’est une essence de la profession libérale.

Il y a des exceptions à l’obligation de ne pas refuser d’affaire : c’est la règle C30. C30 set out that the
cab rank rule does not apply if : (cf. site internet BSB avec toutes les règles).

- You are required to refuse to accept instructions person to another rule of the BSB to refuse
C2 ( ????) (...).
- (...) Si on a une autre audience au même moment.
- (...). Si le fait de prendre l’affaire en charge suppose qu’on prenne une assurance
déraisonnable pour couvrir la responsabilité professionnelle.
- If accepting instructions woyuld require you to act for a foreign lawyer (avocat étranger). On
peut refuser si ça conduit à travailler avec un avocat étranger, à l’exception des avocats
européens et inscrits au barreau d’Irlande du Nord ou de Scotland. Bizarre comme règle
sachant qu’une des première règle d’éthique est la non-discrimiantion.
- If the professional client is not accepting liability for your feez (fiz ?) : si refus de paiement
des honoraires par le solicitor et paiement directement par le lay client, on peut refuser.
- Unreasonnable opinion or unacceptable credit risk : si par exemple, le sollicotr est au bord de
la faillite, on peut refuser. Or, if the professional client is instructing you as a lay client and
not as a professionnal client.
- The cab rank rule does not apply if you have not been offer a proper fee (vérifier
orthographe, honoraires) for your services, except les cas de l’équivalent de l’aide
juridictionnelle où là il faut accepter les tarifs fixés par l’aide juridictionnelle.

 Aller voir le détail sur le site du BSB pour la règle (et pour combler les trous des 7 de la liste
ci-dessus).

So the cab rank rule is very strict and the breach to the rule = a serious disciplinary offense. Of
course, barristers try to circumvent this rule. You must accept instructions. For young lawyer, they
can said that they have not enough experience in this matter : it is a way to refuse instructions if we
don’t fall in the exceptions set out in the rule of the BSB.

So the barrister’s client = solicitor and solicitor’s client = lay client (third party).

This is the historic rule, but they change. Persons are able to instruct a barister directly. Not only for
solicitors : there have been a widening of the scope, called as the public access scheme.

Règle qui vient atténuer : the public access scheme/direct access rule (deux terminologies pour la
même règle). In one word, the public access scheme allows members of the public in England and
Wales to instruct a birrister directly. As we told, itw as necessary for clients to use a solicitor to

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instruct a barrister : the access to the barrister was indirect : the client was the third party. The public
access scheme was established in 2004 : because it was considered as revolutionary because it
destroy the rule (barrister instructed bty solicitors), itw as decided that this new scheme would be
mise en œuvre gradually. So, the rule that barrister could only be instructed by solicitors was
gradually relaxed, and the current public access rule which now enable the public to access to
barristers, came into force in april 2015, so quite recently. This rules are covered in rule C119 to C131
Code of conduct in the BSB Handbook. In fact the main advantage is that it allows consumers to save
on legal coast. The drawback is that finally this scheme show things that barristers can’t do : they
cannot conduct the litigation. And because they can’t conduct the litigation, it seems that the client
has to conduct the litigation himselfe. The lay client will have to perform the majority of document
management, the filing, etc. in the litigation.

As a client you can instruct the solicitor to do the following things : the barristers instructed will
provide the client with expert legal advice (bien-fondé du cas and the potential outcomes) ; he will be
able to assist the client in the drafting of correspondance, he will also be able to draft statements and
briefs (briefs = conclusion), he will of course be able to give advice on steps of the proceedings and to
witnesses, and will be able to represent client in court and advocacy in court. Now, what the
barrister not do is issue court documents on behalf of the client, contact witnesses, collect evidence,
instruct a witness on the behalf of the client, and he cannot correspond with the adverse party on
behalf of the client. All this things must be done by the client himself. And also, solicitors usuely do
and barristers cannot do : barristers are not allowed to handle client’s money (handle = gérer).

Depending on the difficulty of the case, the public access scheme can be a very bad idea, if they are a
lot of witnesses to prepare, evidence to gathered, etc, : where the assistance of a solicitor is very
important to win the case.

The other thing is that this is also a drawback : not all barristers are qualified to undertake on public
access schemework. Barristers have to take a special training to take public access work : they must
have practice for three years minimum, they must have attended a public access training course, and
they must also have been given certain notices. Besides public access work must be pay for privately.
This means that even if you are elligible for legal aid (aide juridictionnelle) we cannot go and see a
barrister in the public access scheme. To have the legal aid, it must have a solicitor.

Incidence of the public access scheme on the cab rank rule : the cab rank rule normally prevents a
barrister from refusing to take on the case except in certain circumstances. The principal is that they
cannot refuse the case. The public access scheme provide that the public access rule is not applicable
for the cab rank rule. Barristers, so, are entitled to refuse the case and especially they are entitled to
refuse the case on public access work. The cab rank rule does not apply in the public access scheme.

Provision §601 et 602 BSB handwork specifies that when the cab rank rule does not apply, a barrister
must not refuse a case on the following grounds (3) :

- On the ground that the nature of the case is objection rule. If the case is objectionable.
- A barrister can not also refused the case on the ground that the conduct opinions or beliefs
of the prospective clients are unacceptable to him or any section of the public.
- And last, he will not refuse the case in any ground relating to the source of any financial
support which may properly be given to the prospective clients for the proceedings in
question ; except of coursethe fact that (...).

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Of course, §305, barrister cannot refuse a case if it is granted on a discrimation motive (origins, colors
citizenship, sexual orientation, marital status, etc.). The handbook specifies the legitimate reasons
why barristers may refuse to take on a case on a public access. Examples of legitimate grounds :

- If the case is complexe and we need to work with a solicitor or another qualified person.
- The lay client interest require an interest involvment.
- Public founding would be available to the client if a solicitor was instructed.

Usually the advice to a barrister when he refuses the case is to write a letter to the client to explain
why. He must explain reasons why he refuses.

The public access rule is an important change in the way of access to lawyers. Client don’t have to
instruct a solicitor anymore. But it has been criticized for both clients and barristers. The main
criticism on the public access rule comes from solitors. Of course now, if client does not instruct
solicitor first, the solicitor will loose some work. But some reports have in fact shown that it was not
really the case, and that in fact it helps clients who would not instructed solicitor (money : court
coasts are very expensive in England).

B. Solicitors.

(Deux premiers exposés).

Constat : unmet need to legal services.

Equal access to justice (social aspect)

Competitive view of the market

Regulatory framework : independance, duty to act, discrimination of clients, flexible contre

deregulation of legal services.

Recommandations of clementi report :

 Need to distinguish interest of the profession and the public interest of citizens.
 Lawyer should no discriminate clients.
 Legal disciplinary : commercial body (represent legal services to client) + multidisciplinary
praticies : to offer to client approach to solve complex approaches.

Consequences of the clementi report :

 Liberalisation of business structures : pour ceux qui ne sont pas qualifiées de lawyers.

Libéralisation in France : the same need such as in England ? Law = service.

Plutôt que l’ouverture du droit au non -professionnel pour élargir l’accès au droit, ne vaut-il pas
mieux libéraliser l’accès au barristers de manière générale ? Ne vaut-il pas mieux obliger les
qualifiés à ouvrir leur champ de compétence ?

En France, ouvrir des cliniques du droit par exemple : permet à des personnes qui n’ont pas les
moyens d’accéder à une justice de qualité d’accéder quand même à des avocats.

 Il faut prendre du recul : ça a l’air révolutionnaire en Angleterre, mais le pays partait de

loin : le marché était très sclérosé, d’où besoin de libéraliser. Mis plus que libéralisé, but =
facilité regulatory framework et centraliser. Accès à la justice était compliqué car plusieurs

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 profession, chemin tortueux, pas comme en France. Réforme du rapport clementi était
nécessaire mais objectifs pas atteints : il aurait fallu étendre l’aide juridictionnelle. Certes
libéralisation, mais pas tous les justiciables sur un pied d’égalité. On élargit en Angleterre
l’accès à la justice, mais on ne garantit pas l’accès à une bonne justice (= captain contrat en
France). En France : consommateur très protégé, mais information délivrée insuffisante.
C’est dur d’être bien informé, donc protection nécessaire. En Angleterre c’est l’inverse.

Solicitors are the second principal branch of legal services. Solicitors are relatively modern features
comparatively to baristers. The non baristers was different types of lawyers : attorneys, proctors and
solicitors. Solicitors being principaly chancery specialists. In 1831, all those types of lawyers/non-
baristers lawyers were regroupés en une seule entité : the society of attorneys, solicitors, proctors
and others not being baristers, practicing court of law and equity of United Kingdom. In 1903, they
decide to simplify the title of the body : now = the law society. The term solicitors replaced all forms
for this branch of the profession of non-barristers. It is relatively recent.

Solicitors are now the second main branch of the profession of lawyers. It is quite similar to barristers
for qualifing :

- Academic stage.
- The vocational training/stage : everyone who wants to be solicitor must undertake this
training.
- Third stage : training contract/training stage. This training contract must be completed. It is
quite similare to the pupillage stage of barristers. The training contract last two years.
Competition is very intense. Once the training solicitor has completed his training contract :
one requisite is interesting to know : the training cotnract involves the trainee experiences at
least three diferent types of law.
- The professional skills course : final part of the training to be qualified as a solicitor. This
course is very short in fact. 12 days. It must take place as the same time as the training
contract. Interestingly it is the solicitors employee who paye for the course and not the
trainee. Cf. les trucs étudiés : very different of the equivalent for baristers.

Once you completed this four stage training, we are admitted to the rolls (expression consacrée) and
a certificate is obtain from the law society (body who authorize licence for professionals).

The scope/the content of practice for solicitors, to understand difference with barristers.

(L’exercice du droit en Angleterre n’est pas unitaire.)

What a sollicitor does ? First, the sollicitors (...) and his work will imply conversing with the client to
establish the necessary legal advice and services for the client problem. He will also take client’s
instruction and advice on the law and the legal issues relating to the case. Sollicitors also deal with
the paperwork and th communication involved with their clients’ case : it icludes writing documents
(letters, contracts, etc. = clients’ needs) ; it include advices on the procedure and sollicots also
prepare all the papers which are necessary in court pleeding. Sollicitors also advise on the different
actions or the nec essary action possible in the client’s case, and sollicitors are the one who instruct
barristers when litigation is complicated.

Another part which is more important in England than in France is negotiations. Sollicitors negociate
with clients and the opposition party. Every sollicotor, including barrister too and legal
practicionners, is looking for an amicable solution. In a litigation it is the sollicitor who will gather the

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evidence, calculate the claims for damages, and coordinate all the work of all the parties involved in
the case (witnesses, client, barristers, etc.).

This is a general description of the work of a sollicitor.

In terms of the organsiation of the practice, sollicitors have more flexible practice than barristers, in
law firms (cabinets d’avocats) ; some are independents and some are in a firm as employees.

Sole practicionners : libéraux indépendants. It is not possible to set up immediatly as a sole

practionership. New qualified sollicitors have to undertake two years in a partnership, in a law firm,
and then they can set up.

A specificity of the work of sollicitors : one thing has change recently : we told that barristers have
the sole right of audience in high court. It is true. But when sollicitors are qualified, they have limited
rights of audience. It is restricted for junior court and tribunals. Withoin the crown court, sollicitors
have a very limited rights in audience, for example for preliminary audience. The consequence is that
in principal no rights in suprem court and higher courts. But there has been a reform recently which
established a new type of solicitors : solicitors advocate. This reform begun in the 1980s and became
effciient in 1990s. It is recent. Historicaly, the bar have exlcusively rights of audience in higher courts
(suprem court, court of appeal, high court, crown court). And in fact itw as argued that opening
audience to solicitors rise the costs for clients. It is a question of costs. Even in simple cases, itw as
ashamed to instruct solicitors and baristers, because baristers could not add value in this type of
litigation. So the government decided at the end of 1980s : a law allowing solicitors to appearing in
higher courts. It was quite bad received by baristers, off course. This reform was necessary to creates
a new statuts : the status of solicitors advocates, and first one appeared in 1994.

Another reform in 2007 (vérifier ce point, cf. si pas de contresens pour cette réforme) : it was
necessary for a person seeking to qualify a solicitor advocate. The reform is called the Higher Rights
of Audience Regulation (HRAR). This regulation abolished the requirement that solicitors advocate
had to practice for three years. A person who seeks to qualify as solicitors have the right of audience
when she is writen to the role. But continuing professional development (CPD) : formation continue
de 5 ans. When solicitors adovvcate qualified, they don’t become baristers : they remains subject to
the law society and the law society reqyuirements, and they do not become a member of the bar
councel.

In practice, solicitors advocate are quitely passived. But of course, if we have in mind the rational for
this reform which is the same as the reform of public access skin, it is not usefull to have to instruct a
barister for a small case. It is costs effective for client prospective. Public access skin is cost effective.
Of course, if it is a complexe legal issu, with witnesses and expert, a barister will be more specilized
for advices, and it is a good thing. But the opening up of the profession is a good thing.

C. Specific type of baristers : Queen’s counsel (QC’s).

They represent the highest branch of advocates in England and Wales, and this titlz recognizes the
excellence of a baristers. In fact traditionaly this title QC’s was restricted solely to baristers but in
1996 just after the reform of solicitors adocates, naw solicitors are entitled too to become QC’s. The
process to become a QC’s is called a taking silk. This is because this name come from the queen’s
counsel dress was in silk.

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Just one word for QC’s : the process of appoitment has change : the process of apointing sil kwas
controversialed. It is considered as a political decision. The Lord chancelor (representative of the
queen) use to have absolute control over who was taking silk (phrase mal tournée, cf.). It was
controversial and a new skill was implemented. It is quite recent. A new skill was implemented and
now the all process of apointment is administrated by the queen’s cousel apointment (QCA) :
oindependant body which is independant both from the government and also from the profession of
the law sociaty and bar counsel. They are selected by a panel of person, and once they are selected,
the lord chancelor decide. He still has rights and do the selection for the queen. It is quite
complicated of course, and we won’t see details. (If we want : www.qcappointments.org: document
called competency framework document, of the requirements).

The profession in England should be fusionate in one body ? (It could be a question in exam, so, think
to issues, benefits, disavantadges, criticism, etc.).

There are two further branches we have to know. We saw qualified and non-qualified, and the third
branch is the legal executives. Legal exectuvies are traditionaly considered as assistance of solicitors,
but over the time they have been recognized as a independant branch of the profession with it owns
rights. In 2012 : institute of legal executive : roayl charter. CILEX : chartered institute of legal
executive. They, of course, are allowed to provide legal advice, and they have also a limited right to
audience, and they are allowed to undertake some litigation work for the solicitors. You don’t have
to be law graduated when you start this training. Four year of academic legal qualification + practice
during 5 years on the supervision of a solicitor. And the other thing : once you are qualified as a legal
executive, you can undertake a specific training to become a solicitor (voie paralèle d’entrée pour
devenir solicitor) or even a solicitor advocate.

The last branch is the paralegals. It is really one of the most recent development of the legal
profession. But it has become an established part of the legal framework. But important expansion of
the number of the paralegals who are in fact non qualified people who assist in the exceution of legal
work. So, the main difference of paralegals and other branch : paralegals have no legal qualifications.
The only branches who have a statutory recognition are solicitors, baristers and legal executives, but
not paralegals. Paralegals = secrétaires juridiques. Legal studies here are not necessary.

There are other specific branches, but we won’t see them here.

Exposés sur le rapport Clément (périmètre + fusion).

Loi macron 2015 : élargissement du champ des avocats de la cour d’appel + examen de déontologie
qui n’a pas abouti.

Rapport Clément : création d’un statut qui règlemente la profession d’avocat en entreprise ? Impact
réduit de ce rapport.

Cf. Rapport darois, prada 2009 feugère 2010 qui parle des contours de la profession d’avocat.
Macron repris par loi 6 août 2015. Clément : paupérisation des avocats donc solutions pour y
remédier. Feugère : interprofessionaltié. Volonté de renforcer la compétitivité économique des
avocats.

Darois et prada : statut d’avocat en entreprise.

Exercice de la profession d’avocat en entreprise : est-ce opportun ? Rapport d’un économiste. Est-ce
que l’extension aurait pour effet mécanique de réduire le taff des avocats ? Conclusion de
l’économiste positive : l’approche économique conclu en faveur d’une ovuerture de la profession

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d’avocat en entreprise : plus de bénéfices d’un point de vue économique de d’inconvénient (lire
introduction et conclusions). Nom de l’économiste = Défin ?

Une des raisons pour les entreprises de consulter un avocat, c’est surtout pour la confidentialité. La
confidentialité est un enjeu. Il n’y a qu’en passant par un avocat que la négociation est confidentielle.

II. Effects.

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