Earlier this month French lawyer Kami Haeri submitted to the French Minister of Justice Jean-Jacques Urvoas his report “The Future of the Legal Profession” (L’Avenir de la profession d’avocat).
This is the fourth in a series of eight posts about France’s move towards alternative structures. This post and the following two will focus in particular on the Haeri Report. This post provides general background information about the Report and points out some of its more interesting elements; the immediately following two posts will examine the Report in detail under the specific optic of alternative structures. Links to the other seven in the series are provided below.
In his October 20, 2016 letter asking Haeri to prepare the report, Urvoas explained that significant reforms to France’s training program for new lawyers were about to be implemented. For Urvoas, it did not make sense for this to happen without, at the same time, developing a clear vision of just what the future will be for those new lawyers.
Further, Urvoas observed, the legal profession as a whole is plagued by doubts about its future – doubts new lawyers share.
Urvoas then listed a number of factors placing pressure on the legal profession. Anyone asking the same questions about the future of the legal profession in other countries will easily recognize Urvoas’s list:
- The difficulties of finding a job after completion of law school, of developing a clientele, of making partner, of succeeding as a sole practitioner,
- The challenges posed by new technologies, and the questions they raise regarding the lawyer’s role and ability to compete (to the point, Urvoas observes, of many young lawyers leaving the legal profession to create “start-ups”), and
- The questions raised in bringing lawyers together with other professionals, namely accountants, but also France’s other legal professions (those questions are explored in detail in this post).
In light of these questions, Urvoas asked Haeri to constitute a commission whose mission will be to “make a precise diagnosis and propose means to resolve them.”
Urvoas continued by describing the make-up of the commission: it should be lawyers (avocats) who are knowledgeable in the matters addressed. Further, they should be representative of the diversity of the profession, taking into account areas of practice, types of structures, and geographic locations. Finally, the team should have gender parity.
Giving a bit more guidance, Urvoas emphasized that the focus of the commission’s mission should be on new lawyers. That is, the commission should ascertain the conditions for entering the profession, the expectations of new lawyers, and the reality of their experiences. More largely, Urvoas directed the commission to examine the realities of the legal profession today and its perspectives: what services are expected of the profession, how persons in need of legal services obtain them (notably from lawyers), and what are the foreseeable impacts of new technologies.
Further, Urvoas directed the commission to develop proposals for how to improve the career paths of young lawyers, how to facilitate adaption to new technologies, and how to favor relations with members of other professions, on both a national and international scale.
In executing their mission, Urvoas stated that the commission should conduct all “auditions and consultations” they deem necessary. These auditions and consultations should include the representatives of different institutions and professional organizations as well as representatives of law students.
Urvoas instructed Haeri and the commission to conduct its work “as quickly as possible” and to submit a report by the end of the year – so in just over two months! (This short deadline is even more remarkable when compared to David Clementi’s 18 months and the 2-year mandates of each of the American Bar Association’s Commission on the Future of Legal Services and the Canadian Bar Association’s Legal Futures Initiative).
Not at all surprisingly, Haeri did not meet that deadline – he instead submitted the Report on February 2, 2017. Still an exceptionally short length of time given the enormity of the mission.
As the first pages of the Report explain, Haeri composed a commission of four lawyers, including himself, seeking the most parity possible: men/women, Paris/province, sole practitioner/law firm, litigation/transactional.
There is some inconsistency regarding the number of persons with whom the commission consulted. For example, the first pages of the Report state that the team consulted with “more than 130 persons,” but Annex 1 to the report lists 124.
The overwhelming majority of those 124 persons were lawyers (active members of the bar). The others – taken together, still a minority of the 124 – were principally in-house counsel (in France in-house counsel are not permitted to be active members of the bar), law school and professional bar school faculty and administrators, judges, or representatives of “legaltech” companies. Interestingly, in spite of Urvoas’s specific focus on law students and his specific direction that the commission consult with “representatives of law students” (in plural), only one person out of the 124 listed in Annex 1 is easily identifiable as a law student.
The 138-page Report covers a huge range of issues, some in great detail and some in only a cursory manner. True to its mission, a large part of the Report focuses on legal education, especially for new lawyers, but also continuing legal education for practicing lawyers. Even with that focus, the Report covers a large number of other areas. In essence, the Report makes a certain number of observations with respect to legal education, the practice of law and the state of the profession, and then proposes a number of recommendations based upon its observations.
The Report’s observations address the following topics:
- The structure and content of legal education and bar exams,
- The number of lawyers around the country, types of practice structures, number of women as opposed to men, number of lawyers who seek inactive status (omission) each year, their reasons for doing so, and their professional activities after leaving the bar, and the number of inactive lawyers who return to active status.
- The number of newly admitted lawyers who find an associate position with a law firm and the time it takes for them to find it, the challenges that associates and all lawyers face in their working environments,
- The use of technology in the practice of law, the manner by which technology has changed how lawyers work, the challenges/opportunities presented by “legaltech” companies,
- The absence of diversity in the bar, both as regards gender and ethnic background, the absence of meaningful statistics to demonstrate and combat the absence of diversity as regards ethnic background, and the challenges faced by women lawyers (income disparity, discrimination, sexual harassment).
Having made such observations, the Report makes 50 specific recommendations, including:
- Establish legal clinics at law schools,
- More systematically collect and report information relating to lawyers’ actual career paths, including professional activities during periods of inactive status, in order (among other reasons) to understand why certain lawyers leave the profession and why in some cases they return,
- Rationalize continuing legal education, by using technology to make programs more accessible both geographically and financially, by introducing programs for coding and technology by creating a special program for newly admitted lawyers, and by allowing other legal professions and practitioners (such in-house counsel, judges and notaries) to participate and share their knowledge,
- Establish a mentoring program within the bar, for the benefit of young lawyers,
- Establish institutional relations with “French Tech” in order to remain up to date on technological advances and to communicate the position of the bar with respect to the development of technology for use by the legal profession,
- Within each local bar organization, create an “Observatory of Innovation” where new lawyers (admitted less than five years) can “favor the emergence of new practices with respect to technology and firm management,”
- Facilitate lawyer mobility, both geographically around the country and also as regards transitions to and from other activities (in-house counsel, the bench, regulatory agencies, …),
- Support the development of multi-professional companies (SPEs),
- Eliminate the ban on referral fees, at least as far as the ban applies to referrals between lawyers (In the Report this recommendation results from a very specific context that relates to the status of law firm associates. However, the recommendation itself is not limited to this specific context. To the contrary, it states very generally “authorize the payment of referral fees among lawyers”),
- Appoint an independent body to conduct a detailed audit of the profession with respect to parity and diversity,
- Require local bar organizations to submit an annual reporting as regards parity, and make the contents of the report public, and
- More effectively and efficiently pursue disciplinary actions with respect to lack of equality, harassment and discrimination in law firms.
Here are just three of the many additional interesting and notable elements of the Report:
1) Legal Education
The most common educational route to bar admittance in France takes place in three stages. The first is four or five years of university study of law. The second is a period of preparation for the entrance exam to a professional bar school (CRFPA or Ecole d’Avocats). This entrance exam, which tests substantive legal topics, is quite difficult. After university, most students take at least one year if not more to prepare for it, notably by enrolling in special preparatory classes. The relatively small percentage that pass the exam (in several regions the passage rate is less than 25% and in just one region is it greater than 49%) are then allowed to enter a CRFPA and complete the third stage, a program that takes place over a period of 18 months.
In accordance with Urvoas’s instructions to focus on new lawyers, the Report contains many recommendations relating to CRFPAs. For those outside France, perhaps the most intriguing of these recommendations is that CRFPAs should dispense with teaching substantive law because it unnecessarily duplicates the students’ university education. Instead, the Report recommends that the entire curriculum of the CRFPAs should be reconstructed around the top ten skills that the World Economic Forum has said will be the most needed and useful in 2020. Those skills are:
- Complex problem solving
- Critical thinking
- People management
- Coordinating with others
- Emotional intelligence
- Judgement and decision making
- Service orientation
- Cognitive flexibility
This is a highly intriguing recommendation. It brings to mind a program offered by Penn State University’s Dickinson Law on the topics of “cultural” and “extra-legal” competencies.
If you are interested in legal education, you might be interested in watching if and how France implements this recommendation.
2) Office Space
No fewer than four times the Report deplores the high costs lawyers incur to maintain office space. More specifically, the Report explains that many lawyers seek office space in lower cost neighborhoods and/or seek to better use technology as ways to reduce their costs for office space. The cost of office space is a particular problem for new lawyers, who, the Report explains, often have to go into debt to meet the considerable expenses required to open a new firm.
In fact, Article 15.1 of the Rules of Professional Responsibility (Règlement Intérieur) requires a lawyer to have an office that is physically located in the geographic area of the local bar to which the lawyer is attached. That is, in order for a lawyer to be a member of the Paris bar, he/she must have an office in Paris. In the same manner, in order for a lawyer to be a member of the Lyon bar, he/she must have an office in Lyon. Without an attachment to a local bar in this manner, a person cannot hold him/herself out to be an avocat and is not authorized to practice law.
The office cannot be just any office. Instead, it must be “conforme aux usages,” which can be translated as “customary” or “consistent with common practice.” Further, it must allow for the practice of law “in respect of the core values of the profession,” and allow for the protection of confidentiality. French bar authorities reserve the right to inspect a lawyer’s office in order to verify that it conforms to Article 15.1. (There was a time when such inspections occurred systematically, notably when a lawyer opened a new office).
Most if not all bars in France have interpreted Article 15.1 as excluding home offices. That is, while bar authorities cannot prohibit a lawyer from working from home, the authorities can, nevertheless, require the lawyer to maintain separate office space “consistent with common practices,” even if the lawyer never uses that space, or needs it for any other purpose (that is, other than for bar registration). Indeed, an industry has grown around this requirement, with several companies offering domiciliation services specially designed to enable lawyers, and particularly new ones unable to afford a “real” office, to meet this requirement to have the “right” address.
The Report is right to highlight the problems that French lawyers, and especially Parisian lawyers, face in securing affordable office space. The Report is right to state that while clients might appreciate visiting “elegant” offices, they resist more and more having to pay for them. The Report is right to point out that a better use of technology can not only attract more clients but also enable lawyers to better control their costs for office space.
What is puzzling is why the Report does not go further. Why doesn’t the Report recommend that the rule requiring lawyers to maintain office space that is “consistent with common practice” be abolished as long as a lawyer can demonstrate that he/she works in a manner that protects confidential information? And if the commission did not want to go quite so far as to make such a recommendation, then why didn’t it at least question the necessity of the rule?
The failure to make this recommendation is all the more puzzling when you consider some of the arguably more radical recommendations that the Report makes with respect to legal education: The Report states that not only teaching methods but also teaching spaces must be re-thought. More specifically, the Report recommends the elimination in CRFPAs of large amphitheater classes, in favor of small groups (maximum 35 persons) who meet in a variety of places, such as in law firms, companies, regulators, and courts.
If the spaces for legal education can be “re-thought” in this manner, then why can’t the spaces for legal work, as long as clients and their information are sufficiently protected? Further, what is there about having office space “consistent with common practices” that offers a greater guarantee of protection of confidential information over a home office? In sum, who is Article 15.1 really protecting? Clients? Or established lawyers and law firms who have easy access to the resources needed to maintain offices “consistent with common practices,” to the detriment of those who do not?
Finally, this requirement appears quite strange, even difficult to believe, when explained to lawyers outside France. For example, no such requirement applies to US lawyers – they are not required to live in, practice in or have an office in the state(s) where they are admitted. Further, there are no restrictions on lawyers working from a home office, or even any requirement that a lawyer have an office at all. There is no evidence that this harms the legal profession in any manner. There is no evidence that this harms clients either, and notably there is no evidence that their confidential information is jeopardized. To the contrary, it can be argued that it greatly benefits clients who work with lawyers who are able to keep this element of their overhead expenses very low.
3) Limited Scope Representation
One – just one – paragraph of the Report raises the question of limited scope representation (also called in English “modular services” or “unbundling”). The Report observes that some clients, with limited resources, ask their lawyer to limit the time spent on a matter. Reasonable as such a request may appear to be, it can be a difficult one for a lawyer to comply with. This is for several reasons, the Report explains: to begin, the sense of perfectionism and “honor” that lawyers are taught to bring to their work. Even more important is the question of professional liability, which requires a lawyer to pay scrupulous attention to all aspects of a matter, and to identify all risks and potential issues, regardless of whether the client just wanted one small thing. The Report asks: would it be possible to vary a lawyer’s professional responsibilities so that it depends upon the extent of the work the client actually requested? “Perhaps this is a path that deserves to be explored.”
In sum, the Report discusses limited scope representation as if it were something entirely novel. It doesn’t seem to even have a name in French. It’s not clear to what extent the authors of the Report were aware of the growing use of limited scope representation outside France. For example, this study was commissioned to understand its (widespread) usage in England & Wales, and the American Bar Association encourages its use under the right conditions. It’s even possible to take a course about it.
The next two posts will examine the Report under the specific optic of alternative structures.
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Links to the other seven posts in this series:
- There’s Something About France
- A Big Happy (French) Family
- A Little More Liberté
- France’s Haeri Report on the Future of the Legal Profession: Intro
- France’s Haeri Report and Alternative Structures (1 of 2): Je t’taime un peu
- France’s Haeri Report and Alternative Structures (2 of 2): Je t’aime, moi non plus
- France and Alternative Structures: Putting the Pieces Together
- Alternative Structures: Why is France Succeeding While the US Continues to Fail?
All eight posts, regrouped, can be viewed at this link: Regroup of posts on France