On The Question Of The Multidisciplinary
Partnership In France Today
A/ - The problem is now acute and shall be decided in the near future
By the Parliament and/or by a decree from the government after the opinion given by the Paris Bar and more generally by all the French Bars through the General Council of the French Bars.
-All lawyers (avocats) in France agree on the main principles which we can state as follows:
1 – The avocat must remain independent from
and his daily practice, independent from his partners’ should they not be lawyers (avocats) as he is himself.
So, here must be resolved the question:
Could an avocat be paid (in any way, directly or indirectly) by another professional and not exclusively by his client?
2 - The rules on the conflict of interests must never be broken.
A lawyer either individually or through his partners and associates, must never handle interests which are conflictual.
3 – Professional secrecy.
The avocat is the necessary confident of his client, one who can be trusted with the inmost secrets. He must never betray them. Even his own client cannot relieve or free the lawyer from the obligation to keep the secrets which were entrusted to him in his quality of "avocat".
Could it be possible, then, that the lawyer share this secret with a partner of his who is not an avocat and therefore not submitted to the same duty and to the same onus?
4 – Fourth and last, but by far not the least, principle in a democratic society: the free choice of his lawyer by the client.
B/ - Keeping those principles in mind, the French Prime Minister, Lionel Jospin, appointed in the fall of 1998, Henri Nallet, member of Parliament and former Minister of Justice to inquire about the present situation in France and to write down a report stating the difficulties, the needs, and each profession’s opinions and what could be foreseen in the immediate future and then decided by Parliament and government.
The Nallet report was rendered to the Prime Minister on July 21 st, 1999, known on the following day and discussed by the Paris Bar Council on July 22 nd.
Previously, on March 27 and 28, 1999, the National Council of French Bars voted a text to state clearly the French Bar’s position on the issue, knowing of course that the Nallet report was expected for the following summer, and that in view of his report, the position may have to be adjusted.
Both the Paris Bar and the General Council of Bars knew of course that at the 1999 summer meeting of the American Bar Association, the issue was going to be raised and thoroughly discussed.
1 – The Paris Bar’s comments on the Nallet report in July 1999.
The Paris Bar ascertains with satisfaction that the Nallet report stated strongly the importance of Law in our society and the necessity to keep in France a strong legal profession although acknowledging that in France the legal profession suffers from historical handicaps and drawbacks.
The Paris Bar notes that the Nallet report makes its own the major part of the Paris bar’s proposals, mainly that the French law firms should be organized as far as the tax problems and the legal structures are concerned, in order to be competitive on the European and world level.
The Paris Bar expresses its reserves on the fact that the Nallet report admits that in the future MDP there could be partners other than those belonging to regulated professions but is satisfied that this report states without any doubt that the lawyer (avocat) must be totally independent inside the MDP, that there must be an absolute respect of the professional secrecy which is the cornerstone of the relationship between a client and his lawyer and that the rules of conflicts of interests must be duly respected.
- in article 16.2 : Principles.
"The advocate or structure of advocates who are members of a network shall ensure that the operation of the network does not adversely affect the fundamental principles of the profession of advocate (…) Failing which, he shall withdraw from the network".
- in article 16.4 : Delimitation.
"An advocate may only form part of a network if the latter is comprised exclusively of professionals in the regulated liberal professions with a code of conduct embodying ethics which are the same as those of the advocates and respect of which is governed by a regulatory or other institution".
- in article 16.9 : Independence
"The operation of the network may not affect the independence of the advocate.
An attack on independence shall be constituted notably by the fact, directly or indirectly, of:
agreeing to mechanisms which lead to the distribution or to the sharing of results or to the redistribution of remuneration in France or abroad with non advocates;
Finally, the Paris Bar approves that any agreement between a lawyer and another lawyer or with a third party, non lawyer, must be submitted to the Bar Council and if not, will be deemed null and void.
And it does approve that a law firm must have a name different from the MDP’s name while the law firm must advertise the fact that it belongs to an MDP.
2 – On March 27 and 28, 1999, the General Council of French Bars voted article 16 of the Standardized Standing Orders of the French Bar.
Article 16 of these orders entitled "Networks and other agreements: modality – opening – authorization" decided, along the lines of the Paris Bar’s observations,
- in article 16.1 : Definition of a network.
"For the application of the present text, a network shall constitute any formal or informal cross-trade organization between one or several advocates and any member of another profession or enterprise, establishing a lasting community of interest with the object of developing a current or potential clientele and/or of promoting the provision of additional services.
The existence of such a community of interest shall be deemed to exist when at last one of the following criteria are noted:
-common use of a name or of any distinctive signs such as a logo, or a graphic chart;
-publication and or use of documents presenting the group or each of its members and making reference to multidisciplinary competencies;
-the existence in France or abroad of direct or indirect mechanisms for the distribution or sharing of costs or results or for the redistribution of remineration;
-used of common or shared resources likely to have a significant impact on professional practice;
-existence of a significant common clientele associated with mutual prescriptions;
-a technical, financial or marketing co-operative agreement".
b) agreeing to the subordinate position of the advocate or to the hierarchical control of his briefs by other non advocate professionals.
The advocate who is a member of a network shall ensure in all matters that the invoicing of services specifically reflects the value of his own services.
The term "advocate" shall include advocates at a foreing bar or having a title recognized as being the equivalent thereof in their country of origin".
Such is the state of affairs, about MDPs, in France today (that is in August 1999). Decisions will be made next Fall or next Winter.
What the American Bar Association will decide on that matter, in August, in Atlanta (GA) will be of course very important for the French Bar, for the bars of the European Union and for the federation of European Bars (which includes Bars of the whole of Europe and not only of the European Union).
So we are very happy to participate to the hearings of the ABA commission on multidisciplinary practice on August 8 th.
Paris, August 4 th, 1999