Lawyer ethics in the twenty-first century: the global practice reconciling regulatory and deontological differences: the European experience.

• Author: Lonbay, Julian

ABSTRACT

This Article surveys multijurisdictional legal practice in the European Community. It details some of the types of lawyers and law practices that can be found across Europe and describes the variety of activities in which these lawyers engage. The Article then examines the regulatory regime that controls the legal industry. Specifically, it considers Article 49, Article 43, Directive 89/48/EEC, and Directive 98/5/EC. The Article concludes with a discussion of how conflicts in the regulation of lawyers may be resolved.

1. INTRODUCTION

   This Article sets the scene regarding multijurisdictional practice in the European Community. It is important to have an idea of the wide variety of legal actors that participate in legal practice in Europe. There are fifteen Member States in the European Union (1) and there are three countries (2) bound by the Single market rules through the European Economic Area Agreement (EEA). (3) As we will see, the question of "what is a lawyer" is far from academic in the European context. This Article evaluates the European rules that allow cross-border practice in Europe. Is there a single market for lawyers? European Community rules that liberate cross-border practices will be assessed. These rules, in themselves, provide some of the mechanisms put into place to try and reconcile regulatory and ethical differences that result from cross border activities by members of the European legal professions.

   A fundamental dichotomy that European Community Law (EC law or Community law) has to confront is that the EC law demands free movement of services and free movement of persons, and yet, at the same time, the Member States retain regulatory control over their professions. This means that, in principle, any EU citizen (4) has a right to go and work or practice in another Member State. There is inevitably a clash of national regulatory rules as professional migrants leave their home State with the stamp of the rules and regulations that have conditioned their scope and type of practice there. Normally, on arrival in the host State, the local host State rules are applied to the professional migrant's practice, and often these rules are in conflict with the home State rules. Their very existence might be considered impermissible under host State rules, their mode of practice might be illegal, or the practice might be assigned to a different national profession. For example, in some Member States, multidisciplinary practice (MDP) is permitted, and in others it is prohibited. Thus a multi-practice law firm is likely to have difficulties practicing in a Member State that does not permit joint practice. This Article seeks to assess and evaluate what the European rules provide for in such situations.

   The essential resolution of the dichotomy is that Member States retain their competence to regulate professionals in their territory, but the European Court of Justice (ECJ), requires that Member States exercise this power in conformity with European rules. (5) The European legislature has enacted rules liberating professionals from national boundaries. In an age where borders between most EC nations (6) are no longer permitted, the very notion of national territory is under siege. (7) National regulation is informed by three sets of rules. The single market rules from the EC are known as the free movement of persons rules. (8) The anti-trust rules, known in Europe as competition law rules, also govern multipractice situations. (9) Finally, human rights law rules are relevant. (10)

2. TYPES OF LAWYERS

   In Europe there is a tremendous variety of legal practitioners and each country has its own differing groups of legal practitioners. (11) This reflects the fact that all Member States have their own constitutions and that much law remains national in origin and scope. There are different legal orders and tremendous differences in the professions that deliver legal services. The differences start with access to the legal professions themselves. There are well over forty professions, each having different training requirements. (12) In some countries one needs a law degree to become a lawyer; others lack this requirement. (13) A legal education itself can vary in length from three to six years. (14) In order to re-qualify to practice cross-border in Europe, it would take over seventy-five years just to complete the university stage of legal education. Professional experience is often a required component before one can join a legal profession, though it is not necessary in Spain where one does not need to have any professional experience before joining the profession of abogado. (15) There are professional exams that are mandatory in some countries and some are very difficult to pass. In other countries they do not exist at all. So there is a tremendous variety in training before one can become a lawyer. (16) But what is a lawyer?

   The work of lawyers is carved up differently among various legal actors in each Member State. In the United Kingdom, for example, there is a split between solicitors and barristers. (17) Barristers undertake much of the court work and act as a reserve of specialization for solicitors. Solicitors do more transactional work. (18)

   In other countries, pleading is reserved for particular groups. In Spain there are specialists, procuradores, who know how to sort out court papers and carry out all the service of documents as a separate profession. (19) Spain also has a labour law specialized profession, the graduados sociales. (20) A specialized "profession" for tax law advice exists in the Netherlands, the belastingadviseur. (21) In many--mainly southern--continental European States, notaries carry out much of the legal work. All of these professionals have their own titles and their own monopolies in their own areas. National rules reinforce demarcations within one country and compartmentalize the market for that particular type of professional. These types of rules can be used to preserve exclusive areas of activity. They can also be pressed against foreign professionals to prevent their encroachment on the reserved turf. The different national rules of practice are reinforced by national laws and regulations and often include civil and criminal penalties.

3. TYPES OF PRACTICE

   Just as the types of lawyers practicing in the EEA vary enormously from State to State, the way they practice is equally varied. Not only does the EC contain some of the biggest law firms in the world, but also large numbers of sole practitioners. The rules regulating legal practice are nationally-based and vary from country to country. The national ethical and deontological rules are reinforced by professional rules of conduct, but certain elements are common. (22) The independence of the lawyer and the promotion of the rule of law in justice are key elements for lawyers, and they are respected in all the Member States. (23)

   In regards to the scope of practice, there is a wide range of reserved activities that vary in each of the Member States. Some countries have a very extensive list of monopolies for lawyers. This includes, for example, a monopoly on the giving of legal advice. In France, Luxembourg, and Germany, one must be a member of the relevant profession to give legal advice. (24)

   Some countries have a slightly less monopolistic view of their profession, and mainly protect the lawyer with a few reserved areas of activity. This means, then, that anyone can give legal advice in the United Kingdom. The privilege of calling oneself a solicitor, a barrister, or an advocate, however, is reserved for members of those professions, (25) and that protection acts as a consumer guarantee. In England and Wales there are still some reserved areas for solicitors and barristers which relate to rights of audience before the higher court as well as probate and property transactions. (26)

   The Scandinavian countries are even more liberal. There is little reserved to formally designated lawyers. They have their professional title protected, though anyone may do the same work without the title. (27) They rely on their organisation and good name. Thus, an advocater in Sweden, for example, may do anything as a legal practitioner within the confines of the local rules. (28) Other people who are not advocater may also do the same things without the restraint of professional rules. (29) The result has been that there are a number of jurister, people with law degrees not practicing under a professional title, who compete with formally recognized advocater. (30)

   Lengthy lists of incompatible activities reinforce the preserves of various legal professionals. Some countries only require that members of the profession have good character, others explain more formally what that means. (31) Austria probably has the lengthiest list of incompatible activities. (32) In some Member States, such as Belgium, employment of lawyers is prohibited, as it is contrary to the dignity of the profession and their independence. (33)

   Partnership between lawyers is prohibited in some countries. In England and Wales, barristers are not allowed to be partners with anyone. (34) Other countries have size limits on partnerships. (35) England and Wales formerly had size limits on partnerships, but now in London one can find global law firms--Clifford Chance being the largest law firm in the world. Still other countries allow incorporation of legal practices, but significantly curtail the power to advertise. Some countries allow multidisciplinary practice (MDPs). This is quite common in some Member States between notaries and lawyers. In some German Laender partnership is permitted between accountants and lawyers. This has caused division in Europe, where the issue is currently the subject of litigation from the Netherlands before the European Court of Justice. (36)

   Some of the common elements among the Member States merely serve to...