Legal Advisors in Europe

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REPORT ON LEGAL ADVISORS IN EUROPE

SEPTEMBER 2007

The task.

At the Vienna Standing Committee of February 15, 2007, the author of the present work was appointed to report about the issue of legal advisors in Europe, with the aim of verifying in which cases one can consider them equivalent to lawyers, above all regarding the possibility for national organisations of legal advisors to become full members of the CCBE.

Summary of conclusions

Having in mind that – for the already mentioned reasons - a general rule in this field is rather problematic, if not simply impossible, and that a rather pragmatic, and case to case, approach could appear more useful than a dogmatic and rigid one.

Résumé des conclusions

Sachant que, pour les raisons déjà mentionnées, une règle générale en la matière est problématique, voire tout à fait impossible, une approche plus pragmatique, au cas par cas, pourrait être plus utile qu’une approche dogmatique et rigide.

The questionnaire.

On April 13, 2007, the CCBE Secretariat launched to the delegations the following questionnaire:

(1)What legal professions exist in your country, apart from those represented by your bar organisation at the CCBE, and apart also from notaries (who are already represented by your bar organisation at European level through the Conseil des Notariats de l’Union Européenne, CNEU)?

(2)Could you please describe the differences of these other legal professions compared to the one represented by your bar?

(3)Are these other legal professions recognised and regulated through a special law applying to them? If so, please give the reference for the law.

(4)How many members (roughly, if the exact figure is not known) exist in these other legal profession.

On the request of CCBE Secretariat, the following members gave an answer :

Austria

Belgium

Cyprus

CzechRepublic

Denmark

Estonia

Finland

France

Germany

Hungary

Iceland

Italy

Liechtenstein

Lithuania

Luxembourg

Netherlands

Norway

Poland

Portugal

Romania

Slovack Republic

Slovenia

Spain

Sweden

Turkey

UK

The legal advisor in Europe.

Of the above mentioned countries, only the following (still) have legal advisors as a category separated from that of lawyers:

Belgium (“juriste d’entreprise”)

Denmark

Germany (“Rechtspfleger”; former “Rechtsbeistände” who are still alive)

Hungary

Iceland (“general lawyers”)

Liechtenstein

Lithuania

Netherlands

Norway

Portugal (“solicitadores” and “consultores juridicos”)

Romania

Slovack Republik

Slovenia

Spain (“procuradores” and “secretaries juridicos”)

Sweden

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As it results from the answers given to the questionnaire, one could say that there is no country which has the same situation as another, nor the type “legal advisor”, where it exists, is exactly the same in at least two countries.

This is fully understandable, having in mind how complex (form the Roman Empire to the fall of communism less than twenty years ago) has been the history of our continent.

And historical background has a fundamental importance to understand origin and development of everything which, like not only the profession of legal advisors but also the profession of lawyers itself, has to do with the law.

This situation of great differentiation makes it not quite easy to find a common definition that could perfectly adapt to at least more than one country.

If differences always exist, there are of course major and little differences, with all a series of nuances.

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Some special figures of legal advisors

Some special figures of legal advisors deserve a special mention for their particularities (in describing them, the answers – and sometimes the same wording, in order to avoid misunderstandings - given to the questionnaire by CCBE delegations will be used).

The “conseil juridique” in France.

The most different of all is the (now disappeared, after the fusion with the profession of “avocat” in December 1990) figure of “conseil juridique”in France.

The history and the elements of this (now disappeared) profession are particularly interesting, because they show a way that seems to be followed in other countries.

After a first period of non regulation, a law intervened to regulate the profession (in France, it happened in 1971) and then, after a certain period during which it was a liberal, self-employed and regulated one, with the compulsory registration in a list kept by the “Procureur de la Republique”, who was also in charge of the disciplinary action, in December 1990 the profession merged with that of lawyer to form a new profession, comprehensive of both.

The “Rechtsbeiständen” in Germany.

It deals with a figure of legal advisors existing in former East Germany until 1980.

“Those who have already practiced this profession before 1980 are allowed to practice it for their lifetime.”

They are allowed “to give legal advice in certain areas of the law; in some cases, they could also get a permission to give legal advice in all fields of law; in this case, they could become member of the local bar.”

Legal advisors in Denmark.

This is a brand new figure, as a direct consequence of the Danish Government’s intention to liberalise the market for legal services in favour of consumers.

On the basis of this principle, now everyone in Denmark, irrespective of educational background, can now give and market legal advices.

These legal advisers activities will be regulated by Law on Legal Counsellng as far as consumers are concerned.

Legal advice to business clients is not regulated in Denmark apart from the lawyers activities.

The “consultores juridicos” in Portugal.

Law no. 15 of January 26, 2005 introduced the new figure of “consultores juridicos”: “highly reputable graduates, holders of a master degree in Law, or holders of a doctorate in Law, should enrol in he Bar Association through a special procedure which involves taking an exam.”

“These professionals are only allowed to give legal advice, and cannot represent clients before Courts.”

This new professional figure however has not yet been fully implemented.

The in-house counsel in the UK.

This is a traditional figure of a salaried legal advisor who is a “pleno iure” lawyer (solicitor or barrister), mentioned here because, in the UK, the quality of salaried lawyer is considered fully compatible with the independence of the in-house counsel.

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The quality of salaried professional.

Anyway, notwithstanding the variegated range of typologies, there is at least one element which is common to all the countries where the profession of legal advisor still exists, and probably the most significant one: the legal advisor nowadays is a salaried professional.

This quality is not incompatible with the possibility of being equivalent to lawyer (as it results very clearly from the Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 - the so called “Establishment Directive” -, which clearly admits the figure of salaried lawyers (s. whereas no. 12 of the Directive).

The employer can be a public or private (commercial company or non-profit organisation) entity, and the legal advisor can be a public servant or an employee.

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The activity of the legal advisor.

Another element which is relatively common is the activity which is made by legal advisors.

The activity is, once again, different from country to country, but always includes giving advice and drafting of documents.

In several cases in includes the activity of assisting and/or representing the employer before the court (only civil courts in Hungary).

In some cases (e.g. in Romania) some legal advisors established commercial companies, sometimes themselves employers of salaried legal advisors, rendering legal services to third parties.

This is strongly opposed by Romanian lawyers; it was considered legal by the Romanian Government some years ago and considered illegal by the Romanian High Court last year. Apart from that, it is to be considered if this possibility jeopardizes the independence of legal advisors.

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Legal advisors in Eastern Europe.

While lawyers, considered as a liberal profession and therefore a symbol of capitalism, where generally fought or, at the most, tolerated in former communist countries, the figure of legal advisors flourished in Eastern Europe until the end of communist era (in the late eighties - first nineties of last century).

The State, public institutions and public companies (private ones of course did not exist) needed legal assistance and representation before the courts and, given that lawyers were something capitalist, and therefore to be put aside, the figure of legal advisors was considered ideal for that purpose.

After the fall of communism, the fate of legal advisors followed the different evolution and development of each country to democracy and capitalism.

For this reason in former communist countries we witness so different status of the profession of legal advisors: in some cases (for example in former East Germany, after the “Wiedervereinigung”) they were mostly absorbed by the bar; in other cases, they survived, clearly separated from lawyers, but with very different legal competency (able or not to represent their employers before the courts, in some cases both civil and criminal, in other cases only civil).

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The difficulty of a common definition of legal advisor in Europe.

Having said this, it is pretty clear that a common definition/description of the profession of legal advisors in Europe is almost impossible, if not in the very general sense of employees who legally assist (and sometimes represent before courts) their employers.

But this gives us very little help in what is our main aim, which is to verify if the profession of legal advisor is or not equivalent to that of lawyer, in the perspective of allowing national organisations of legal advisors to become full member of CCBE.

Therefore, it could maybe more useful to examine the elements which are typical of the profession of lawyer, in order to verify if they are or not met by the relevant organisation of legal advisors.

This involves and implies the solution of a previous, extremely important problem, which is the definition of what is a lawyer.

Such a definition is clearly of paramount importance, delicacy and difficulty, and, at the same time, maybe goes beyond the limits of the task which was at the origin of this report.

The approach to the problem will be therefore merely empiric, with no pretension of implying a general definition of lawyer.

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When a legal advisor is to be considered equivalent to a lawyer?

As already said, there are some elements/characteristics which are typical of the profession of lawyer and which probably have to be present in legal advisors national organisations if they aim to be considered equivalent to lawyers.

These elements, which will be examined in form of answers to the aforementioned question, will be put in connection with the ten core principles of the European Legal Profession (accepted at the CCBE Plenary Session on November 25, 2006), which will be indicated aside.

a) when the profession of legal advisor is regulated and is based on professional education and training (core principle j: self regulation)(core principle g: professional competence).

Thinking about which could be the elements to be present in order to speak about legal advisors equivalent to lawyers, probably it is to be said that non regulated activities should not be considered for the purpose of this research.

Even before, when we speak of legal advisors as a legal profession, a law degree (or equivalent qualification) is also of course a fundamental requirement, which cannot be given up.

Professional education and training, and then a law degree first of all, is always necessary in the public general interest (one should say, in the interest of the citizen-consumer of legal services) to assure a minimum standard of quality and to distinguish legal advisors from people who give advice without any qualification nor competence (which is a further, specific and important problem for the profession of lawyer at European level, to be probably faced up relatively soon).

A professional examination is compulsory in some countries (e.g. in Hungary, even if it is not comparable with the state compulsory examination for lawyers).

State regulation is usually connected with a law providing an organisation charged of the control of the activity of legal advisors, with a disciplinary system, including sanctions and the capacity and force sufficient to apply them, in case of abuses.

Anyway, the concept of fully qualified legal advisor is something which is as usual quite different in the various European countries.

b) When the inscription to a register kept by the organisation of legal advisors is compulsory in order to practice (core principle j: self regulation).

The compulsory inscription to a register, kept by the organisation charged of the access to the profession, as a preliminary “condicio sine qua non” to exercise the profession, is not present everywhere (for example, it is present in Poland, but not in Romania in general).

Maybe it is not an essential element, but of course it avoids the proliferation of free organisations (the example of Romanian organisations of legal advisors is emblematic).

c) When he/she is independent (core principle a).

The subordinated relationship between the legal advisor and his/her employer has understandably an impact on the independence of the first.

Also in this case there are considerable differences between the various countries.

For example, in Hungary it is considered that legal advisors, owing to their quality of employees, are not independent.

In the UK legal advisors, who are understood as in-house counsel, are integral part of the lawyer’s profession, and their employment is considered compatible with retaining their independence.

The same it seems to happen in Turkey.

In Italy, where in-house counsel are admitted by the law only for public entities with an autonomous legal department, they are integral part of the lawyer’s profession.

The next question to be put (whether the right to appear in court is or not essential to consider the profession of legal advisor in a certain country equivalent to that of lawyer) interferes with the present one, and it will be dealt with in this section because it does not concern only representation before courts, but also the activity of giving advice.

Indeed, if the activity of the employee legal advisor in favour of his/her employer may influence his/her independence (even if special characteristics and peculiarities of the different jurisdictions may guarantee that a certain independence still exists), it seems very difficult to admit that the independence of the legal advisor persists when he/she gives legal assistance and represents before courts also third parties.

d) When he/she has the possibility of assisting and/or representing his/her employer before the court (professional competence: core principle g).

Even if it is known that in certain States, like Denmark, citizens may appear personally before a judge without the assistance of a lawyer, notwithstanding that it is a common opinion that the possibility to appear in court is essential to the figure of the lawyer.

Consequently, it should be advisable to consider as essential for the profession of legal advisor, in order to be equivalent to that of lawyer, the possibility to appear before the court, both civil and criminal.

e) When there is the obligation of confidentiality and professional secrecy (core principle b), of avoiding conflicts of interest (core principle c), of respecting dignity and honour in his/her activity (core principle d).

These core principles are so important and self explanatory that any further comment would be unnecessary.

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The remaining core principles of the legal profession (loyalty to the client; fair treatment in matter of fees; respect towards colleagues; respect for the rule of law and the fair administration of justice) are not mentioned here not because they could be considered of minor importance, but only because they are, usually and principally, evaluated on an individual basis (loyalty to the client; fair treatment in matter of fees; respect towards colleagues) or in relationship with the state (respect for the rule of law and the fair administration of justice).

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Having in mind that – for the already mentioned reasons - a general rule in this field is rather problematic, if not simply impossible, and that a rather pragmatic, and case to case, approach could appear more useful than a dogmatic and rigid one

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I stay at disposal for any further widening of the report.

Verona, August 4, 2007

Aldo Bulgarelli