Avocats by establishment

Mary-Daphne Fishelson says the Paris Bar has real concerns about the EC's Rights of Establishment Directive. Mary-Daphne Fishelson is spokesperson for the Paris Bar on international matters.

Foreign lawyers have always been accepted in France. As a result of 1990 legislation on the merger of the professions of avocat and conseil juridique, a great number of established foreign lawyers in France became avocats – listed as avocats with the relevant local Bar and holding the same rights and obligations as their French counterparts.

There are about 40 foreign partnerships and about 700 foreign lawyers representing 36 different nationalities established in Paris. For those foreign lawyers who did not benefit from the law but wished to establish themselves as avocats, articles 99 and 100 of the November 1991 Decree offered them the opportunity to become avocats by taking an exam.

But the EC's Rights of Establishment Directive did not follow the French position. Instead it recognised the possibility of European lawyers giving legal advice in another European country under their home title.

However, the object of France's 1990 legislation was to merge the two professions of avocat and conseil juridique into one, the avocat becoming the sole person authorised to practise law on a regular basis and to give legal advice to a third party. This explains why France was opposed to lawyers from other European countries establishing themselves in France and giving legal advice under their home title as solicitors, as rechtsanwalts, and so on.

For France, such a situation would recreate what the 1990 law had suppressed, creating confusion in people's minds when they were beginning to understand that they could only obtain legal advice from avocats.

With the introduction of the Directive, control over the respect of the rules of deontology will be needed, at least through the rules of the CCBE (Council of the Bars and Law Societies of the EC).

Lawyers may, if they wish, acquire the title of the country in which they decide to establish themselves after showing to the competent authority that they have exercised their profession effectively and regularly in that country for at least three years, and that they have acquired the experience and knowledge of the law of that country. The title is obtained under these conditions as a right.

A recourse against the Directive has been lodged by the government of Luxembourg. Luxembourg's position is very close to France's as to the title.

The Paris Bar is also opposed to authorising foreign lawyers to practise law in France as foreign legal consultants. At the last meeting of the American Bar Association on the subject of foreign legal consultants, France said the Paris Bar could not take a position that was independent from all other European countries.

However, once the CCBE has issued a resolution on the subject, France's position will be in accordance with all other European countries.