Alternative Structures: Why is France Succeeding While the US Continues to Fail?

Of course it’s impossible to do full justice to this question in a simple blog post. But I’ll try.

If you follow the question of alternative structures or ABS in the United States, you’ll know that since 1983 the ABA has considered them no fewer than four times, the most recent being in 2016. On each occasion they were rejected. The decisions to reject were not passive, unemotional affairs. To the contrary, the ABA’s rejection of them was almost visceral, with members seeming to scream on paper “WHAT PART OF ‘NO!’ DO YOU NOT UNDERSTAND?”

This is the last in a series of eight posts relating to France. Links to the other seven in the series are provided below.

While France’s Conseil National de Barreaux (CNB – National Bar Council) has perhaps not considered and rejected alternative structures as many times as the ABA, its rejection of them is no less visceral. On June 15, 2012, the General Assembly of the CNB unanimously adopted a resolution stating that ABSs “place in danger the core values of the profession and the interests of the public.” The CNB has never changed or otherwise reconsidered this resolution.

If that is the case, then how can it be that France is on the road to adopting alternative structures while the US is not?

There is more than one reason for this. This post will focus on just one: On paper, in most states it is the state supreme court that holds regulatory power over the legal profession, but for the most part they abdicate this power in deference to the ABA. As a result, while on paper the ABA has no regulatory power at all, in reality its regulatory power is immense, even being described as hegemonic. With this power, the ABA can block not only ABSs in their entirety, but also any attempts to take small steps towards their adoption – small steps of the kind we see today in France and that can also be seen in Canada. The ABA has effectively used its power for this purpose and there is no reason to believe it will take a different approach any time in the near or distant future.

In contrast, neither the CNB nor any other bar organization in France comes close to having so much power. That is not because they wouldn’t like to have it, but because the country’s executive and legislative branches have not, in contrast to US state supreme courts (as well as to US executive and legislative branches), abdicated their regulatory powers to the bar. The Macron Law was adopted over the strong objections of the CNB as well as other bar organizations. (The Macron Law was also “rammed through” under a highly unusual and controversial procedure that allowed the executive branch to override the legislature). The Haeri Report was commissioned not by any bar authority but by the Minister of Justice.

(On the other hand, the commission that prepared the Haeri Report was composed entirely of lawyers and the overwhelming majority of the persons with whom the commission consulted were lawyers, in-house counsel or law school instructors/administrators. This probably explains in part why the Report does not contain any recommendation nearly as radical as those contained, for example, in the Clementi Report, which was prepared by someone entirely outside the legal profession).

There is at least one more reason to explain the limits on the power of the CNB and other bar organizations as compared to the comparatively unlimited power of the ABA: Given that the US has essentially just one legal profession with essentially just one de facto governing body on a national level, this means the ABA overwhelmingly dominates all other bar organizations in the US. Any bar organization on a national or state level that sought to take an initiative perceived to be contrary to a position taken by the ABA would most likely have great difficulty gaining traction, let alone succeeding.

In contrast, and as mentioned in previous posts in this series, France has a number of regulated legal professions – lawyers (avocats), notaries (notaires) and bailiffs (huissiers de justice) are only three. Many of these professions have their own governing bodies comparable to the CNB for lawyers. This means that France has not only many different legal professions, but also many different governing bodies for each profession, on both the national and local levels. None has dominance in any manner that approaches the ABA’s dominance (hegemony) in the US.

Further, as regards Open Law and the ADIJ (the organizations responsible for the Charter of Ethics, as described in this post): participation in the activities of both of these organizations is entirely open – not only to members of the various legal professions, but also to members of the public at large and to companies and other kinds of organizations. Anyone who is interested can participate. It is easy to imagine that this diversity of participation results in very different discussions than those occurring in bar organizations whose participants consist of persons belonging to the same legal profession. Equally if not more importantly, it is easy to imagine that while organizations such as Open Law and ADIJ would not want to unnecessarily alienate bar organizations, nor would they feel obliged to only take initiatives of which bar organizations approved.

Seen in this light, it is easy to understand how organizations such as Open Law and the ADIJ could not only initiate but also see through to completion the development of the Charter of Ethics. By the same token, it is difficult to imagine that comparable organizations could do the same in the US, at either a national or a state level.

Let’s finish this series of eight posts with this additional comparison of France and the US:

The World Justice Rule of Law Index for 2016 ranks the US 18th out of 113 countries on an overall basis. France’s ranking is a close 21st. (The US’s score is 0.74 out of 1.0 while France’s is 0.72). This overall ranking is based upon nine factors, such as constraints on government powers, absence of corruption, and openness of government. These overall rankings for the US and France are not stellar but are respectable.

In contrast, when one element is singled out –– affordable and accessible civil justice –– the rank of the US falls to 94th (yes, 94th) of 113. This ranking is behind countries such as Albania, Belarus, Kyrgyzstan, Myanmar, Russia and Zimbabwe. In very stark contrast, France’s rank for the same element is 30th. (The US’s score is 0.41 out of 1.0 while France’s is 0.62).

France is by no means perfect. But when it comes to affordable and accessible civil justice, it is clear that France gets right many things that the US gets wrong.

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Related posts on this site:

Chapter 3: Alternative Structures Will Jeopardize Self-Regulation

Chapter 21: Abdication of Regulatory Power

Links to the other seven posts in this series:

  1. There’s Something About France
  2. A Big Happy (French) Family
  3. A Little More Liberté
  4. France’s Haeri Report on the Future of the Legal Profession: Intro
  5. France’s Haeri Report and Alternative Structures (1 of 2): Je t’taime un peu
  6. France’s Haeri Report and Alternative Structures (2 of 2): Je t’aime, moi non plus
  7. France and Alternative Structures: Putting the Pieces Together

All eight posts, regrouped, can be viewed at this link: Regroup of posts on France

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