14 August 2003

Dealing With a Split Legal Profession in Contentious Matters

Italy Corporate/Commercial Law
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A split legal profession may be unheard of in the United States, but this is hardly the case in continental Europe. On the contrary, this is very much a part of legal tradition, or at least legal history, of several countries this side of the Channel.

In France, conseils juridiques used to belong to a fully distinct profession until they were merged by statute in 1991 with avocats; and even today avoués are still in existence, operate independently of law firms, and retain their exclusive right of audience in the French courts of appeal, as do the avocats à la Cour de Cassation.

Whenever one needs to file an appeal in France, the party involved needs to instruct one of those lawyers; while it is normal that a foreign company rely blindly on the judgment and choice of its trial lawyer, their role is not all but perfunctory or formal, and especially before the Court of Cassation the counsel appointed may really make the difference.

In Italy, lawyers used to be either procuratori (attorneys) or avvocati (advocates), the former being those representing the parties in (civil) courts, the second being those defending them in court (and possibly advising them in transactional matters). While the distinction had already been weakened before 1997 by the fact that all advocates were also attorneys, the distinction remained very visibile in the fact that one was an advocate everywhere in Italy, but could only be admitted as an attorney in ones's district, and needed the assistance of local counsel whenever represention was required of a client in proceedings taking place elsewhere.

The different roles entrusted to different categories of lawyers, where they exist or have existed, have however always been very peculiar to each individual jurisdiction, and the two-tier English system has no real equivalent, save for the similar versions offered by Scotland and Ireland and a few other common-law countries.

It may also be the case that this system, often criticised and to an extent attenuated in the last ten years, has contributed to the overall undisputable success of English lawyers as a class, in comparison to their continental colleagues. It is almost banal to note that English solicitors managed to establish most of the largest practices in the world, and were in average more effective than American firms, in spite of their relatively smaller local market, in making large inroads in other jurisdictions, taking over local leading firms or actively competing with them. In turn, the English Bar still commands a kind of respect from the judiciary and public opinion, and of fees, which is the envy of many of its European and American counterparts.

What is often overlooked is that access to both segments of the English legal profession is open to foreign lawyers needing assistance with respect to UK law and jurisdisction, and that one, namely the Bar, may sometimes be better suited to specific needs. One reason why the Bar is underutilised by lawyers other than solicitors is that little information used to be generally available on who is who and what he or she does. In turn, this may depend on the fact that while the legal framework under which, say, Italian law firms operate is that of a set of chambers, in practice they behave and are organised as partnerships; while English sets of chambers are just that, and only recently the leading sets have embarked in structured marketing of their services other than their clerks' grapevine and are geared towards a higher and less informal integration of their members' services.

Another reason is that English barristers, whenever they are instructed by foreign lawyers, tend to expect the same kind of relationship and services and preparatory work that they obtain from local solicitors, and are very reluctant to participate in what is perceived as solicitor-like work. My firm decided in the past to go through direct instruction of a barrister in a couple of relatively simple High Court matters. We told ourselves: we speak more or less the language, we have always had one or two solicitors working in our Milan office, we even have an office in London (even though it is exclusively staffed by Italian lawyers and do not practice UK law at all), why do we need a law firm? We must confess that this is not an experience that we would be keen to repeat, nor we suspect would our counsel for that matter. Instructing counsel in contentious work probably makes sense for a foreign firm only if it has a fully-fledged London office staffed with English solicitors with litigation experience, something which is probably applicable only to a few US firms.

Similarly, besides their specific and notary-like competence with respect to conveyancing, there are a number of services, which are routinely provided by lawyers in other European jurisdictions, which are the sole province of solicitors, and that no set of chambers would ever think of offering, as, say, due diligence investigations in M&A transactions, contract drafting, etc.

On the other hand, going to see a barrister may be the best and most cost-effective choice in many cases when a legal opinion on English law is sought. This opportunity is open to all foreign lawyers and patent agents, and in average may be a preferable solution whenever the instruction can be distilled by the instructing party into a request for advice on a very well-defined point of law - a law firm remaining often the best choice whenever complicates issues of fact need to be directly investigated.

Quite obviously, a barrister might also have a more direct, first-hand experience of what exactly defending a given case in court might involve, given the strategic position of the party concerned, the available evidence and the courtoom uncertainties.

In this respect, it is often convenient for the final client to recommend that his domestic counsel makes use of his ability to go to see a barrister rather than routinely instruct a law firm which might end up... doing just the same, and add in the process an inessential layer - not to mention a substantial overhead.

Needless to say, the peculiar role and ethos of barristers (which brings an American author like Posner, in Law and Legal Theory in England and America, to the point of considering them as "judicial adjuncts" rather than "real" lawyers !) also make them a very suitable source of affidavits, or of so-called "pro veritate" opinions, where an expert, autoritative statement of English law principles is required, perhaps to be produced in legal proceedings taking place elsewhere.

The time of top specialists at the Bar is hardly abundant and inexpensive, but their considerable expertise in their choosen, and sometimes very narrow, field makes it unlikely that extensive preliminary research is necessary for them to render an opinion, which in turn reflects both on timeliness and price. Moreover, traditionally a flat fee may be agreed with their clerk, in the form of a brief fee, so that foreign lawyers need not for once be concerned with the work which is going to be involved in obtaining what their clients need.

The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.

14 August 2003

Dealing With a Split Legal Profession in Contentious Matters

Italy Corporate/Commercial Law
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