If you haven’t been paying attention, then you might not know that France is marching steadily towards the adoption of alternative structures.
Of course, it’s not doing it in the way that Australia did. Or in the way that England & Wales did. Or in the way that Canada seems to be doing it. It’s doing it in its own special French way.
This post is the first in a series of eight on the topic of France and its move towards alternative structures. Links to the other seven in the series are provided below.
This, the first post, is about the adoption of a “Charter of Ethics for a Market of Online Law and Its Actors” (Charte Ethique pour un marché du droit en ligne et ses acteurs). This Charter was prepared under the auspices of the ADIJ (Association pour le Développement de l’Informatique Juridique, or Association for the Development of Legal Information Technology) and Open Law.
In March, 2016, the two organizations mobilized about 40 representatives of the different regulated legal professions (“professions réglementées”) to prepare a first draft Charter. (France has a number of regulated legal professions. They include lawyers (avocats), as well as notaries (notaires) and bailiffs (huissiers de justice), to name a few).
In June, 2016, they presented a draft Charter to the public. The draft was posted on an online collaborative consultation platform. Over the course of the next several months, the draft was the subject of a number of in-person meetings and consultations, including a hackathon. Different kinds of persons and organizations participated in the consultation process, including representatives of French “legaltech” companies, representatives of the Paris bar, law students and additional members of the different regulated legal professions.
Jean Gasnault, a coordinator of the project, explained to Villages de la Justice that the principal purpose of the Charter is to demonstrate that legaltech and the regulated legal professions are not necessarily rivals. To the contrary, they can be complimentary and, instead of opposing each other, it would be better to find common ground. “When you are in a defensive position,” he stated, “you lose. The only solution is to go discuss with the actors of legaltech and to agree upon common values.”
Echoing this sentiment, the purpose of the Charter was further explained as enabling legaltech companies to assure their clients, be they members of the regulated legal professions or members of the public, that they (legaltech companies) work in an ethical manner. Those legaltech companies that sign the Charter distinguish themselves from those who do not.
The end result of the process is a 7-page, 3-part document. The first part (4 pages) consists of seven articles which describe the ethical obligations of the Charter signatories in a manner that any lawyer would recognize: maintaining confidentiality, avoiding conflicts of interest, assuring competency, and maintaining professional liability insurance.
This part of the Charter also goes a bit further: To begin, it takes care to specify that the Charter’s signatories agree to respect the laws applicable to their activities, notably in the areas consumer protection, commerce, electronic communications, the protection of personal data and the respect on intellectual property rights. Further, the Charter’s signatories agree to “respect the perimeter of intervention of the regulated legal professions.” This is explained in two manners: If the signatory’s client is a member of a regulated legal profession, then the signatory will respect the “core values” (“principes essentiels”) of the profession in question. On the other hand, if the service in question is provided online and a member of a regulated legal profession is implicated in the service (the Charter does not expressly state this, but presumably in this case the client is a member of the public), then the signatory will establish the means to identify the client, to assure there is no conflict of interest, and to assure segregation of funds.
The second part of the Charter (Annex 1, 2 pages) describes in detail the signatories’ obligations with respect to cyber security and the protection of personal data. Finally, in the third part (Annex 2, 1 page), the Charter signatories agree to provide a minimum level of service to their clients: simplicity of process, respect of deadlines, transparency with respect to price, services and products, availability of information.
For the time being, the signatories of the Charter do nothing more than make a promise. There is no organization or mechanism in place for investigating breaches of the Charter by a signatory. Nor does the Charter foresee any kind of consequence for a signatory that commits a breach. It is possible that such an organization or mechanism may be developed later, notably in the form of a certification process.
Not Everyone Approves
To be sure, not everyone is in favor of the Charter. Most notably Didier Adjedj, a representative of France’s Conseil National de Barreaux (CNB – National Bar Council) called it a “fausse bonne idée.” That is, he explained, while it might seem like a good idea, it isn’t one because “it is evident that a commercial company cannot respect the ethical obligations that lawyers must respect. It’s unimaginable.” In addition, he noted that nothing in the Charter requires its signatories to conduct a self-evaluation to identify potential problems in how they function. Further, there is no system in place to control compliance. So, what will happen, he predicts, is that companies will “self-certify” and then simply tell everyone that they respect the rules.
Adjedj’s comment about the ability of a commercial company to respect ethical obligations ignores the fact that since 2000 in Australia and since 2012 in England & Wales, commercial companies have offered legal services in full respect of the ethical obligations applicable to lawyers (at least, in no less a manner than traditional law firms). Thus, it’s not just imaginable, it is a reality. Adjedj’s comment about self-evaluation of course brings to mind Queensland, Australia’s formal self-assessment process for such commercial companies, called “incorporated legal practices” or “ILPs.” This process requires ILPs to conduct a self-evaluation to identify potential problems in how they function, and supports that process with a 39-page questionnaire.
Not all bar authorities in France share Adjedj’s view of the Charter. Most notably Frédéric Sicard, the Batonnier (head) of the Paris bar, does not. When the final version of the Charter was officially presented to Sicard on November 24, 2016, he described it as “balanced” as well as “indispensable.” Why indispensable? Because, he said, “we are trying to confront man to machine. You might say that the machine will take all of humanity, but that’s not true…[this document] is how to conserve the rules of humanity.”
A signing ceremony for the Charter was held on January 20, 2017. At the ceremony, 19 legaltech companies (such as Rocket Lawyer, Legalstart.fr, Captain Contract, SECIB, and JurisCloud) signed. Additional signatories included three national professional networks (such as Eurojuris), representatives of the legal press and legal publishers, and as many as 50 representatives of different legal professions.
You can consult the Charter in full (in French) at this link.
What About the United States?
The Charter is interesting for a number of reasons. One of them is in contrasting the Charter, and the process that lead to it, to the recent deliberations of the ABA Commission on the Future of Legal Services:
Appointed in August, 2014, the Commission had a broad mandate to, among other things, “recommend innovations in accessing and delivering legal services,” and “propose new approaches that are not constrained by traditional models for delivering legal services.”
In this very broad mandate, the Commission did consider the question of the regulation of legaltech companies, referring to them as “unregulated LSP [legal service provider] entities.” In late March, 2016, the Commission published an “Issues Paper” about such entities, calling for: “data and evidence” about them, information concerning any efforts to regulate them, and input on whether state judicial authorities should be encouraged to regulate them, and, if so, what form those regulations should take.
The Commission posted on its website 24 responses that it received to this Issues Paper. The responses were all over the board, with some arguing that they were opposed to the existence of LSPs and as a result they were opposed their regulation of LSPs as entities because doing so would legitimize them (see, for example, this response and this response). Others explained that they were opposed to the existence of LPS, but, more or less resigning themselves to their existence, advocated for their regulation (see, for example, this response). Others still championed LSPs as important for meeting the access to justice gap, but argued against their regulation by state courts on the grounds either it is unnecessary (they are already regulated by consumer protection laws), that it would unnecessarily increase costs, or that regulation would only enable the state bars and courts to exercise their “protectionist instincts” (see this response, this response and this response). On the other hand, while other respondents also championed LSPs, they felt it’s not possible to “responsibly advocate” for them without also advocating for their “meaningful regulation” (see this response). Other respondents simply weren’t sure whether regulation was a good idea or not (this response and this response). Finally, one respondent told the Commission in no uncertain terms that both its Issues Paper and its work on the subject were insufficient, stating that “far more thought and analysis” was required.
In its 116-page Final Report (issued in August, 2016), the Commission ended up mentioning the topic of unregulated LSPs only briefly. It did so just long enough to kick the question of their regulation to “states.” That is, the Commission recommended that “states” should be the ones to explore “how legal services are delivered by entities that employ new technologies and internet-based platforms and then assess the benefits and risks to the public associated with those services.”
(This recommendation is difficult to square with correspondence the Commission had earlier received from the National Organization of Bar Counsel. The NOBC is an organization “whose members work in the regulation of the practice of law.” In December, 2015, the organization wrote to the Commission “it is appropriate for the ABA to play a leadership role in evaluating and guiding the manner in which the delivery of legal services will be regulated so that all US jurisdictions can make informed decisions.”)
In sum, during its two-year mandate, the Commission did nothing with respect to the regulation (or not) of legaltech companies. The contrast to ADIJ and Open Law in France could not be starker: Taking the bull by the horns, in just nine months they went from a draft Charter to a document ready for signature. The Charter may not be a perfect solution, and it is unlikely that, standing alone, it will be a permanent one. Nevertheless, it is a significant first step.
And more than that, as should become clearer in the following posts, the Charter is one of several significant steps that France is taking towards the adoption of alternative structures.
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Related posts on this site:
Further, a number of the Stories available on this site provide examples of commercial companies in England & Wales and Australia that provide legal services in compliance with the ethical obligations applicable to lawyers. Some of those Stories include:
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