Rights and duties of the lawyer Part 1

It was some time ago that I was planning to write an article on this topic to answer many questions of litigants who, with the least problems with their lawyer, threaten them to contest their honorarium and / or engage their professional responsibility, problems that often arise because of the very behavior of the litigant due to his ignorance of the law and justice in general and of our profession in particular.

Let us recall the essential principles (Article 1 of the National Rules of the National Lawyer Profession ): the lawyer carries out his duties with dignity, conscience, independence, probity and humanity. He also respects in this exercise the principles of honor, loyalty, selflessness, fraternity, delicacy, moderation and courtesy. He demonstrates to his clients his competence, dedication, diligence and prudence.

In addition, there are some provisions laid down in the Code of Ethics for European Lawyers adopted by the Council of European Bars in Strasbourg on 28 October 1998 and incorporated into Article 21 of the National Internal Regulation of the Lawyers' Profession: the lawyer does not act only when mandated by his client. The lawyer does not agree to take on a case if he knows or ought to know that he does not have the competence to deal with it unless he cooperates with a lawyer with that jurisdiction. The lawyer can not accept a case if he is unable to deal with it promptly, given his other obligations. The lawyer can not exercise his right to stop taking care of

Let us end this presentation of the texts by a provision of our own Internal Regulations (that of the Bar of Seine-Saint-Denis) which specifies, in its article 10-II that: the lawyer is entitled at any moment to interrupt his mission , in order to prevent his client in good time to enable him to defend his interests .

To begin, I can not resist to quote you here some details on the oath of lawyer taken from the blog of my sister, Michèle Bauer, which you can find on  this page :

  • Dignity : the lawyer gives an image of respectability, he must have a correct dress and a suitable language avoiding provocation.
  • Consciousness : be aware of its function which is to meet the expectations of its customers in a serious way respecting an intellectual and moral rigor.
  • Probity it is honest in the ordinary sense of the word but also honestly intellectually and not deceive the client.
  • Humanity : be tactful, understanding, caring and caring towards our customers who often go through difficult times.
  • Independence : the lawyer is independent and can not be in a bond of any moral, intellectual, legal or economic subordination.

Let's take these principles in a logical order to get some ideas out of them.

When the client comes to consult the lawyer, for the first time, for a given dispute, the latter must very quickly inform the client of his refusal to take charge of his file, if he is not able to defend it effectively. whether due to lack of time (rare) or the fact that the dispute is in a foreign domain (much more common).

This refusal is usually done by telephone and avoids unnecessary travel to the litigant.

This first step passed, at the appointment, the client explains in detail his dispute to the lawyer. It is there that will play the duty of advice of the latter and that can arise the first difficulties.

The number of lawyers in France

As I told you in this post , I was interviewed in August on the issue of managing the lawyer's working time for the magazine Profession Avocat that I just received.

An article in the magazine titled "Too Many, Lawyers", which is a summary of the latest report from the NBC Foresight Committee, caught my eye.

I had already mentioned the subject a little bit in my post on statistics on the profession . I remind you of the initial observation: the number of lawyers is constantly increasing at both national and local level. In twenty years, the number has doubled and the total number of lawyers is now close to 45,000, including 21,000 in Paris.

Since the beginning of the new millennium, the number of French lawyers has grown by about 1,500 individuals per year, with an average of only 650 for the Paris Bar.

Thus, given these figures, a large part of the profession believes that the number of lawyers is already too important in France, which would explain the economic difficulties of some and the engorgement at the level of entry into the profession.

Remember that some young colleagues do not find a collaboration at the exit of the EFB or the CRFPA for several months or even a few years and fall back in spite to other legal professions.

Even if this is true, it should not be forgotten that nearly 50% of young confreres leave the past profession for the first two years of collaboration because of its intense pace and the amount of social contributions, some of which are overwhelming.

We must also take into account the aging phenomenon of the French population, which also affects lawyers.

The magazine article states that there are currently about 300 annual retirements while this figure will rise to 1000 per year in 2010, not to mention the natural increase in the number of positions to be filled in the area.

However, the report of the NBC notes a clear decrease in the attractiveness of the legal profession, a phenomenon that affects all independent professions and especially liberal in recent years. 80% of those surveyed 30 years ago wanted to enter an independent occupation compared to 15% today, with respondents favoring job security and stable pay.

This decrease of attractiveness is revealed mainly in the number of student-lawyers integrating each year the CRFPA and the EFB of Paris. While the figures for the latter are constantly increasing each year, this is not the case for some regional CRFPAs, where staff numbers are sometimes decreasing.

The problem, as stated in the magazine article, lies in the void left by the lawyers who left and will not be immediately filled by new confreres. At the expense of the legal profession and especially in the area of ​​business consulting, the void left may be occupied by consulting companies or other liberal professions.

This is already the case in the field of business law, which is dominated by accountants, sometimes with disastrous consequences for their client companies (I speak about it in an informed way in the field of labor law).

To end on an optimistic note, the difficulty lies above all, in my opinion, above all in the lack of knowledge of student-lawyers of the reality of the job market of the profession and the prospects for evolution. Indeed, for them, no salvation except the business lawyer at the UJA tariff (3150 € HT the first year), the fear being to "finish" in a small provincial lawyer, equivalent SMIC even RMI.

However, in this profession, it is better to start low to develop slowly but surely by preferring perseverance and the long term than to start "high", stagnate and end up abandoning the profession out of weariness.

This kind of behavior will not improve the future of the profession …

In the head of the lawyer

Ouch! I miss all my homework by not writing tickets for over a month due to overwork for some time already.

The situation is not likely to improve, although everyone keeps telling me that being asked by many new customers is wonderful, business is good and my skills are recognized. have time to take care of everyone.

Rest assured (for those who would be worried), the organization of the cabinet will be changed in a few times to get everything back in order (finally until the next "overload").

Back on topic. I'm doing a new article that will have the subject to show you behind the scenes.

We are not this time "under the dress" of the lawyer as is the category associated with this ticket but in the head of the lawyer when he is seized of a new file and because, so much what to do, as much to speak of what I know best, I invite you to enter my head.

Let us discard from the outset the multitude of "stereotyped" files (do not see in the use of this term no pejorative connotation) that I sometimes have to deal with and interest us in the essence of my activity, labor law and more specifically defending the interests of employees.

My way of apprehending a new case will essentially depend on two factors: the stage of advancement of the litigation and the personality of the client.

Regarding the first point, when I am contacted to process a file, the client can be in three major situations:

  • he blames a number of behaviors to his employer and wishes to leave him in the best possible way (quickly and with the best guarantees)
  • the employment contract has already been broken and the employee disputes this break
  • the employee has already started alone or "poorly assisted" a procedure prud'homale that can sometimes be already at the stage of the Court of Appeal

Regarding the second point, there are two main categories of customers: the client decided and the client undecided.

The client decided is the one who realized that to best manage the situation he was in, it was imperative for a lawyer, me in this case. He has therefore generally inquired beforehand by word of mouth or on the Internet about the value of using a lawyer and the cost of intervention of the latter.

If I discuss with him the question of fees and the fact that their amount and their recovery will be defined by a fee agreement that we will sign at the first meeting, that is not his main concern. Above all, he wants to be listened to, reassured and guided to face this situation and first of all privileges the relationship that we will tie to the cost of my intervention.

For its part, the undecided client does not know yet whether he will or will not use a lawyer and this for two main reasons: he thinks to be able to resolve his situation alone (everyone repeating that conduct a procedure prud ' homale or negotiate a transaction is simple and within the reach of the first comer) but above all, he wants to avoid at all costs excessive and unpredictable expenses.

For him, the issue of fees is paramount and it is also on it that he asks me first before even tell me about his situation, causing me always the same answer, namely that I can only tell him more about the issue when I know more about what I will have to do in his file.

The difficulty of this type of client is that even if he finally gives me his case, he will often remain a certain "mistrust" to me, the loss of control over his file terrorizing him (the term is not too much strong, quite the contrary). The problem is there because there can not be two captains in command. This client is very recognizable because during the first appointment, he gives me his pieces one by one very slowly (often in disorder for that matter), speaks a lot and strives not to answer my questions which is only aimed at to refocus the debate. Generally, the appointment then lasts a very long time.

This type of client runs straight, by training us, to the disaster because his behavior greatly increases the risks, records quality equal, he finally does not get what he came to look in my office.

In front of him, I am then forced very quickly to reframe things by re-explaining to him the role of each one. If the client knows best "the factual" in his file (the dates, the names, the events …), it is the lawyer who is able to manage the best "the legal one". It is up to the client to tell us where he wants to go, to tell him if it is possible or not and if it is, after having agreed on a strategy, to bring him there. involving him in the search for evidence (this is the essence of his role).

Nothing is more dangerous to itself than a customer who calls on me but tries repeatedly to impose (not just propose) inappropriate ways of proceeding (to remain polite).

The development of a file's strategy generally follows three steps:

  • the first meeting during which the client presents the situation and exposes his aspirations. For my part, I am already proposing a draft strategy, and we are mainly discussing the evidence and the means to obtain it.
  • a time more or less long (a few days to several months) during which the file works in my little head and that the customer uses to gather the evidence.
  • the final point on the record that I make with the client once all the evidence "obtainable" in my possession. The file then goes into its active phase visible to the other party, either by the letter that I send to him to crystallize the litigation, or by direct referral to the Labor Court.

Some clients are worried about my silence during the second stage, wrongly assuming that I am abandoning their file. If this is the case materially speaking, I remain intellectually involved in all my current files, as long as I have not found the best strategy to apply. This is my side "pitbull" (any resemblance to remarks made by a "famous" sister would be without a doubt fortuitous).

In fact, we must keep in mind that the primary objective of the client is to obtain what he came to seek by consulting us and that we told him to be feasible and as I hate to lose … I must so to win, for my clients first and for me then (CQFD).

In conclusion, in my opinion, involvement is the foundation of our profession and of any service profession and is the essential criterion of what makes a lawyer a good lawyer, beside of course the more obvious one of skill. If we need to have a certain perspective on our files to keep a cool head, it is imperative not to lose sight of the interests of the client because it is this, before anything else, that gives meaning to our action. . Some confreres, who are often older, seem to have forgotten him.