Role of Criminal Defense Lawyer in France

Role of Criminal Defense Lawyer in France

Demand is very great, both for access to the courts and to legal services. Thus, in civil matters, sixty-five percent of divorce cases are brought with legal aid, while litigation involving housing legislation, labor legislation, and juvenile legislation remain insufficiently covered. In criminal matters, French Criminal Defense Lawyers officially appointed under the legal aid system are involved in less than twenty percent of cases. The defense of litigants is insufficient, even when solvent, in administrative matters or before many quasi judicial commissions where they are summoned to appear. As for access to legal counseling (i.e. to legal advisers), local initiatives taken by certain bar associations or certain local government offices remain inadequate and piecemeal. In 1990, the Conseil d’Etat[1] painted a very gloomy picture of all these needs and the failure to meet them (Bodiguel, 2001, 171).

Public funds earmarked for legal aid in France are very meager: less than 400 million francs in 1989, corresponding to a contribution of seven francs per head yearly, as opposed to thirty francs in Germany, thirty-four francs in the United States, and ninety-eight francs in England.

French Criminal Defense Lawyers usually possess a high socio-occupational background. For example, in the Paris Bar far more future avocats than magistrates have fathers who practice liberal profession or are managers or senior personnel (seven percent versus sixty-eight percent). To date, there has been no major change in this respect.

On the other hand, the average age of French Criminal Defense Lawyers’ is tending to become younger, which is one of the consequences of growth. Above all, the legal profession is tending to attract larger numbers of women. The phenomenon is particularly perceptible in bar associations. In Paris, in October 1989, the “roster” comprised thirty-five percent women, but women represented fifty-six percent of trainee avocats[2] (i.e. those who will be practicing in the future).

The debate on legal aid has been very fierce in the last few years, leading to strikes by French bar associations. The Ministry of Finance was anxious not to add to the public budget and was reluctant to raise the fees paid to French Criminal Defense Lawyers entrusted with such aid as well as the upper limit on resources within which a litigant can benefit from such aid. Furthermore, French Criminal Defense Lawyers themselves were divided, since a person of modest means allowed to receive legal aid through a raising of the upper limit on resources for which such aid can be granted ceases to be a client for traditional French Criminal Defense Lawyers who would have been satisfied with moderate fees. And if remuneration of French Criminal Defense Lawyers entrusted with such aid is increased, it may well become sufficiently attractive for French Criminal Defense Lawyers without clients to agree to specialize in this area and thus to become a proletariat of the bar. This is partly the case at present, evidenced by the recent study of the Conseil d’Etat, as the burden of civil legal aid and officially assigned commissions for criminal matters is unevenly distributed, not only among the French Criminal Defense Lawyers in each bar association (some French Criminal Defense Lawyers are willing to take on a large number of such cases), but also between bar associations.

The former system has been completely overhauled. An Act of July 10, 2001 has been promulgated which is intended to ensure “legal aid” in its two forms: access to justice by means of aid in litigation, and access to legal services by means of “legal counselling aid,” which includes assistance of consultancy and in nonjudicial proceedings. It remains to be seen whether the good intentions of the legislature will be followed by a corresponding effort on the part of the Minister of Finance and the bar associations (BODIGUEL, 2001, 68-73).

Criminal French Criminal Defense Lawyers and the Process

The dominance of judicial regulation has vital consequences for the role played by the defence French Criminal Defense Lawyers in the pre-trial proceedings. The criminal process in France retains a generally inquisitorial advance, with one judicial figurehead representing the communal interest in ‘the quest for the truth’, gathering verifications which might incriminate or exculpate any named suspect. The part that the defence panel plays during the “garde a` vue” period is more limited in an adversarial process where a person might properly be expected to pursue and defend defence benefit. In the French Legal system, a lawyer may spend only half an hour with her client; the lawyer has no privilege to view the records of evidence which the law enforcement agencies have collected. The chief responsibility for protecting the appropriate treatment of detainees lies with the procureur, during the lawyer’s direction of the custody period and ensuing assessment of the dossier. As one procureur explained: ‘In France, the lawyer is not there to advise the person, but to signal any problems in the garde a` vue; not so much to provide legal advice as moral support.’

The sharpest debate concerns independent auditors and accountancy firms, in particular the famous Anglo-Saxon[3] “Big Six,” well established in France and the business world. Having both the means and the ambition to develop strictly legal activities independent from accountancy work, but (so they contend) in conjunction with it and for the greatest advantage of clients, they claim the right to act as legal consultants, and draft documents. This battle between the world of law and the world of accountancy came provisionally to an end with the legal purists victory; Article 58 of the Act maintains the present situation, allowing other regulated professions to give legal consultations only within the context of “their principal activity” and to draft only such deeds as are “directly incidental to the service provided.” However, the battle continues.

The Changing Image

The establishment and expansion of large law firms impairs the traditional image of the French Criminal Defense Lawyers’ profession, defined again by the Act of December 31, 1990 as “liberal and independent.” Admittedly, many avocats still recognize themselves in this definition. However, many are content as salaried legal technicians, without clients. The same Act has helped confirm this development (and further split) by authorizing salaried activity for avocats, whereas previously it was allowed only for legal advisers.

Notwithstanding these distortions, French Criminal Defense Lawyers, “all very different,” love their profession, and are happy to practice it. (This is a general impression and points to a fixed attitude).

On the other hand, the traditional lawyer does not always have the time or the inclination to modernize his work methods by making rational use of new technological tools. Moreover, these traditional French Criminal Defense Lawyers all suffer from inadequate continuing training, made particularly necessary by the current changes in the legal profession.

In this connection, notaries, powerfully organized at the national level through painstakingly adapted methods and functions, have proven more efficient. Although many modest traditional practices still exist in small towns, like the most ambitious in the sphere of business law, a highly efficient professional body, the CRIDON[4], quickly answers a wide variety of legal questions encountered by notaries in professional activities (Danet, 2001, 93-99).

Finally, the bar associations are beginning, belatedly and hesitantly, to move in the same direction. In 1981, a joint access facility to existing legal data banks was created, the CEDIA, which now comprises -fifty bar associations and 11,500 avocats, in the legal form of an economic interest group.

Historical Role of French Criminal Defense Lawyers

It is not necessary to retrace the history of the various branches of the legal profession. Rooted in the distant past, the legal profession’s history is complex and often bound up with contingencies. In general, a gradual specialization of legal functions and proliferation of “ministerial offices” occurred wherein royal power found precious succor. More noteworthy was the fight for professional independence vis-a-vis the political authority, as well as for bar association independence.

On the whole, French Criminal Defense Lawyers do not carry a favorable image in the public eye, but this requires qualification; despite a monopoly and archaic terminology notaries are better liked than bailiffs, who are considered pitiless. Avocats are taken to task both for being over-eloquent (often at the expense of honesty) and for living off pettifoggery and human suffering. These peremptory views stem primarily from public ignorance. Few know the work and functions of the avocat; the media add to the misunderstanding by catering to the public’s taste for outrageous simplifications, amounting to disinformation.

It is easily forgotten that avocats played an important role in the advent and development of democracy in France and that they remain in the forefront of the fight for freedom. Conversely, they rarely possess economic power.

French Criminal Defense Lawyers in Political Structures

Since the establishment of the fifth Republic in 1958, avocats have played a lesser role in political life, replaced by senior civil servants from the Ecole Nationale d’Administration (ENA), and ministerial advisers. This reduction in role occurred concurrently with a lessening of the Parliamentary role where, traditionally, in the third and fourth Republics, avocats occupied a leading position. Politically and socially, avocats are generally conservative; some are active in human rights courses.

Avocats’ professional associations are as diverse as the objectives that each pursues. Some are politically-oriented; many confine themselves to defending professional interests. The bar associations play a major role in this task, as well as representing avocats in court relations and ensuring observance of professional ethics. Jealous of their independence, each bar (there are 180) has maintained its own association, possessing disciplinary powers and prerogatives prescribed by law.

It was not until the latest reform that the National Council of Bar Associations[5] was established. This occurred due to pressure from legal advisers desirous of having an official national organization for the new profession “responsible for representing avocats in their relations with public authorities and for ensuring the harmonization of the rules and practices of the profession of avocat.”

French Criminal Defense Lawyers and Political Problems

The fragmentation of the legal profession and, where avocats are concerned, the splintering of bar associations, as well as proliferation of professional organizations in open competition with each other has hindered the emergence of French Criminal Defense Lawyers in national political life. Moreover, neither image nor political or social position has allowed any real ascendancy. French Criminal Defense Lawyers in general and avocats in particular are not noted for having taken any significant action to solve such social problems as environmental protection or poverty.

It may be observed simply (the problems are encountered in day-today practice of the profession) that avocats and some organizations are especially sensitive to the problems of outcasts, minorities, and immigrants, for whom they demand greater equality and better social integration. Also in the same spirit, avocats are endeavoring to introduce, at the national level or individually, a more accessible form of legal aid more relevant to litigants and their difficulties. Avocats are thus rediscovering the natural meaning of their work, through or in spite of changes imposed on them by modern society.

            The French legislature recently adopted Loi No. 90-1258, Loi kilo. 90-1259, and Decret No. 91-1197 to unify and restructure the legal profession. Loi No. 90-1259[6] merged the profession of avocat (attorney) with the profession of conseil juridique (legal advisor).( Pinsseau, 1985, 101-103) Prior to the change, avocats were qualified to appear in civil and criminal courts, and could give advice in non-litigious matters, whereas conseils juridiques of any nationality were only permitted to give advice in non litigious matters and in most instances could not appear in court.(Dualite, 1990, 152) Instead of liberalizing its professional requirements in light of the arrival of a single European economic market, France has created a virtual monopoly on the provision of legal services for members of its profession in France.( Cassation, 2002, 39-46) Because of the merger of the two professions, starting January 1, 1992, French Criminal Defense Lawyers from other Member States have been banned from practicing in France on a permanent basis unless they become members of the French legal profession.( CAA, 2003, 101)[7]

The Court held that it was permissible for the host State to require co-counsel to assist with a legal proceeding to offer advice and support but that the directive was not intended to require that a visiting attorney have a co-counsel throughout every type of legal proceeding. The court did hold, however, that when the visiting attorney was acting as defense in a criminal representation or when the client’s best interests were at stake, then a co-counsel requirement was appropriate.

To understand the difficulties that confront attorneys practicing transnational law in Europe with the intention of practicing in France, envision the following scenario. If a German Rechtsanwalt (lawyer) wants to provide legal services to his German corporate clients in Paris and Luxembourg, according to European Community law, the Treaty of Rome (Perrot, 1990) allows the lawyer to accomplish his goal in two ways. First, he could provide services to clients in Paris and Luxembourg on a temporary basis. (Perrot, 1990) In this scenario however, the lawyer would not be able to represent himself as a member of either bar nor would he be able to conduct his practice with the same degree of independence he experienced in his own country. The second option for the German lawyer would be to requalify as a member of each bar and permanently establish him in each city. (Perrot, 1990) Unfortunately, requalification is an arduous process of testing and waiting which in France alone may take up to four months to complete if the lawyer has no educational or training deficiencies to overcome.( Perrot, 1990)

Although the prospect of a single European market would seem beneficial to EC attorneys practicing transnational law throughout Europe, it has become a nightmarish tangle of twelve national governments promulgating laws that seemingly comply with the legal requirements of the Treaty of Rome[8] yet make the practice of transnational law in Europe a virtual impossibility. In fact, for a lawyer who wanted to practice in all twelve Member States, it would take fifty years of study to qualify and an additional twenty-seven years of professional training to be able to practice throughout the Community.

France’s latest reforms underline the conflict between Member States in this new pan-European era. The reforms reflect the struggle to apply the supra-national law of the European Economic Community to twelve countries while at the same time recognizing the cultural and national differences of twelve different legal systems. In the course of streamlining its legal profession, the French government has made it more difficult for foreign attorneys to establish themselves in France. Tension has been created by the competing interests of international law firms in France (which must be able to service their clients’ needs wherever the clients have business interests) and the French bar associations and legal associations which exist to regulate their members and protect their interests.

It is more likely that the Council will leave the task of “legislating” to the European Court of Justice, which will continue to mold and refine its interpretations of the Treaty of Rome until freedom of establishment is realized for all the Community’s French Criminal Defense Lawyers and liberal professionals. Recently the Court of Justice decided two cases involving alleged violations of the right of establishment and recognition of professional qualifications that may portend the outcome of a legal challenge to Loi No. 90-1259. The holdings in these cases address the extent to which the right of establishment should be recognized and demonstrate the uncertain result of a challenge to the new French law.

References

A Propos de la Conception Francaise de la Separation des Pouvoirs. GAZ. PAL., Nov. 3, 1990.

Admittees reached a “peak” of 271 in 1982, when two examinations were held in the same year, and the lowest number of admissions occurred in 1979 and 1985, with 128 and 160 respectively.

Danet, Une Institution Delabree, Rev. Franc. d’Admin. Pub., 57 L Administration De La Justice 18 (2001).

H. Dalle (present director of the EMN), Le Recrutement et la Formation des Magistrats: Une Question de Legitimate, REV. FRANC. D’ADMIN. PUB. (justifying the French system).

 A. Potocki, La Formation des Magistrats, in Etudes Offertes A Pierre Bellet (2001).

H. Pinsseau, L’organisation Judiciaire De La France, Notes Et Etudes Documentaires, La Documentation Francaise (1985).

J.L. Bodiguel, Les Magistrats, Un Corps Sans Ame? 125 (2001).

La Dualite des Juridictions en France et a l’Etranger, 5 Revue Francaise De Droit Administratif, (1990) (special issue); CERAP (University of Paris I), Le Controle Juridictionnel de Administration -Bilan Critique, (2001) (Introduction by C. Dupuis); V. Turcey,

R. Perrot, Institutions Judiciaries (3rd ed. 1989).

R. Perrot, La Participation des Judges Non Professionels au Proces Judiciaire en France, in Journees De La Societe De Legislation Comparee 175 (1990).

[1] Magistrates in the administrative branch (Conseil d’Etat). Administrative Appeal Courts (CAA) and Administrative Courts (TA) are recruited mainly by competitive examination set by the National School of Administration (ENA), as well as the supplementary examination for judges of the CCAs and the TAs, and lastly by the “external round” (reserved for certain civil servants and magistrates of the judicial branch) and by exceptional recruitments according to qualifications.[2] The Union Internationale des Avocats (UIA) was created in 1927 by a group of French speaking European lawyers convinced of the need for lawyers to establish international contacts[3] The History of Anglo-Saxon England covers the history of early medieval England from the end of Roman Britain and the establishment of Anglo-Saxon kingdoms in the 5th century until the Conquest by the Normans in 1066.[4] Centre of Recherches, D’Information ET DE Documentation Notarirles de Paris[5] NCBA[6] Organic Law No. 91-358 of April 15, 2001, amending Organic Law No. 80-844 of October 29, 1980 on the status of the magistrature, JOURNAL OFFICIEL. April 16. 2001; J.C.P. III, No. 64724 (2001).

[7] (CAA) and Administrative Courts (TA) are recruited mainly by competitive examination set by the National School of Administration (ENA), as well as the supplementary examination for judges of the CCAs.[8] The Treaty of Rome established the European Economic Community (EEC) and was signed by France, West Germany, Italy, Belgium, the Netherlands and Luxembourg (the latter three as part of the Benelux) on March 25, 1957.