Comparative Law

Professor Pedro A. Malavet

Class Notes Part Four

(Last Updated: January 22, 2002)

IV. The Legal Professions in the Civil Law World

A. Overview, 892-901

In looking at the legal professions, try to see what the structure of the specialties, and the desirability of joining each profession say about the society that these professions serve. There is a definite emphasis on government service by lawyers in the Civil Law World. This means a great allocation of governmental resources. Why would they wish to use resources this way?

What is the effect of specialized education, admission and training on the ethical vision of each profession?

Is lack of knowledge of and/or experience with the other professions desirable? On the one hand, perhaps it creates a larger sense of duty to the profession and to its rules of conduct, but might it not also produce insensitivity to the needs of the other professions? (Increasing professionalism vs. Turf.)

In our system we train you with the adversarial ethic in mind. Is this especially good preparation for jobs in the public sector, perhaps even the judiciary? Does this mean that our prosecutors, administrators, elected officials and judges are incapable of abandoning the adversarial ethic when necessary? But even if they are willing to do so, are they trained to act in a non-adversarial role?

Professions and Values: consider Public Service

In looking at the legal professions, try to see what the structure of the specialties, and the desirability of joining each profession say about the society that these professions serve.
There is a definite emphasis on government service by lawyers in the Civil Law World. This means a great allocation of governmental resources. Why would they wish to use resources this way?

Specialization and Ethics

What is the effect of specialized education, admission and training on the ethical vision of each profession?

High-Level Professionalism vs. Monopoly and Balkanization, "Turf"
Is lack of knowledge of and/or experience with the other professions desirable?
On the one hand, perhaps it creates a larger sense of duty to the profession and to its rules of conduct?
But, might it not also produce insensitivity to the needs of the other professions?
(Increasing professionalism vs. Balkanization, Turf battles.)

Adversarial Ethic

In our system we train you with the adversarial ethic in mind.
Is this especially good preparation for jobs in the public sector, perhaps even the judiciary?
Does this mean that our prosecutors, administrators, elected officials and judges are incapable of abandoning the adversarial ethic when necessary?
But even if they are willing to do so, are they trained to act in a non-adversarial role?

Comparison of the Legal Professions

In looking at the legal professions, initially look for the following:

Legal Specialties?

Government-Mandated Or Practice-Determined?

Training Required For Specialty?

Official Or Practical Limits On The Competence Of Each Profession?

"Competence" means jurisdiction, area of practice/responsibility; note the existence of monopolies.

Legal Specialties

1. Judges

2. Procurators
All Countries (Procureurs, Fiscales)
DO NOT Confuse Procurador.

3. Government Lawyers (mostly administrative)
Distinguish between General Civil Service and Specialized Government Lawyers (Abogados del Estado, Avvocatura dello Stato).

4. Advocates/Advisors
General Legal Advice; Litigation (Procurador, Conseil D'etat)

5. Notaries (Notaire, Notario, Notär).

6. Academics

Legal Specialties, CB-892
1. Judges
2. Procurators/Prosecutors
3. Government Lawyers (mostly administrative)
4. Advocates/Advisors
5. Notaries (Notaire, Notario, Notär).
6. Academics

Legal Specialties, CB-892
1. Judges
2. ProcuratorsAll Countries (Procureurs, Fiscales)DO NOT Confuse Procurador.
3. Government Lawyers (mostly administrative)Distinguish between General Civil Service and Specialized Government Lawyers (Abogados del Estado, Avvocatura dello Stato).

Public Prosecutor's FunctionsCb. 894
1. Traditional Prosecutorial Function
2. Representing the "Public Interest"
3. Impartial View in the Interest of the law
Civil Service Tenure/Rules

Legal Specialties Continued
4. Advocates/AdvisorsGeneral Legal Advice; Litigation (Procurador, Conseil D'etat)
5. Notaries (Notaire, Notario, Notär)Monopoly powers over certain legal transactions, must serve all comers, for statutory fees.
6. Academics

B. Europe

1. France, 902-908

The French Legal Professions

I. Salaried Professionals:

A. In Government: judges, prosecutors (procureurs) and clerks (greffiers).

B. In Private Practice: House counsel (juriste d'enterprise), clerks and junior professionals.

II. Non-Salaried Liberal Professionals

A. General advisor who can freely choose their clients. Avocats and conseil juridiques.

B. Specialists who must serve all comers. Officers Ministeriels. Avoués of the court of appeals, Avocats of the Cour de Cassation and the Conseil D'etat, Notaires, Huissiers de Justice, a sort of bailiff, clerks of the commercial courts, greffiers. All these are specialists who may not reject lawful requests for services within their competence.

Officiers Ministeriels were venal officers under the Ancien Regime, i.e., their positions obtained through purchase. The Revolution changed that, except that it gave notaries, bailiffs, clerks of court the right or presentation, i.e., you may designate a person to get your position. While the State retains the right of appointment, it usually will accept the presentation. This is a privilege for which people will pay. Numerus Clausus.

2. Germany, 908-917

German Legal Education

(1) Certificate of Maturity from secondary school
(2) University Study (at least 7 semesters, usually 5-6 yrs.)
(3) First State Examination
(4) Preparatory Service (Referendar)(2 years).
(5) Second State Examination (Volljurist)
(6) Application for Judgeship or choice of professional specialty.

Poor advocates? Cb. 908

Those who pass both examinations choose among the different legal occupations largely on the basis of their marks on the second state examination, supplemented by the evaluative report of the training judges. Very good marks open the door to a career in the judiciary or civil service.
... but advocacy recently has become the occupation for all jurists unable to find government or civil service jobs.

3. Italy & Spain, 917-920, 925-928

Procuratore, junior lawyers
Avvocati, senior lawyers
Fiscales
Abogados del Estado
Avvocatura dello stato

C. Latin America and East Asia, 920-925, 928-935

Brazilian Profession: Requirements
Diploma from a law school recognized by the government
Civil Responsibility
Successful completion of either practical legal training or bar examination
Qualification as a voter
Freedom from criminal convictions
No incompatible legal activity such as judge, or secretary of state

Professional Activities
Political Juridical Activities
Lawyers in Public Administration
Lawyers in the Private Sector

Other Concerns
Despachantes
Non-Governmental Organizations

The Europeans allocate many resources to the legal professions, which accounts for the higher rates of government employment for legal professionals in Germany and France compared to the United States.

Bar Passage in Japan
1949: 2,512 / 265 / 10.5%
1950: 2,755 / 269 / 9.8%
1960: 8,302 / 345 / 4.2%
1970: 20,160 / 507 / 2.5%
1980: 28,656 / 486 / 1.7%
1985: 23,855/ 486 / 2.0%
1990: 22,900 / 499 / 2.2%
1992: 23,435 / 630 / 2.7%

Law Practice in Japan
Bengoshi
Legal Monopoly is limited to litigation-related activities.
Other Legal Professions
The Law-trained corporate employee
Patent Agents (Berishi)
Tax Agents
Judicial Scriveners
Administrative Scriveners
Japanese Notary

Judges, Procurators, Bengoshi per 100,000 Japanese citizens
1910: 4.1
1920: 5.6
1930: 10.2
1940: 7.6
1950: 7.0
1960: 6.9
1970: 8.5
1980: 10.1
1986: 10.8

 

The Legal Professions: Summary

The Legal Professions: Summary
The Europeans allocate many resources to the legal professions, which accounts for the higher rates of government employment for legal professionals in Germany and France compared to the United States.

Additionally, this means that work that might be performed by a private lawyer in the U.S. is allocated to a government-employed legal professional there.

A. Specialties: generally strictly separated and incompatible to practice more than one. No/little mobility among them. Except judges and procurators, sometimes. Academics tend to be part-time and occupy other positions.

1. Judges

2. Procurators

3. Government Lawyers (mostly administrative)

4. Advocates/Advisors

a. General Legal Advice

b. Litigation

5. Notaries

6. Academics

B. Admission:

1. Education,

2. Examination,

3. Apprenticeship,

4. Appointment

C. Competence: Substantive or geographic monopolies. Numerus Clausus: May lead to venality.

D. Disciplinary Authorities

1. Professional Colleges

2. Ministry of Justice

3. Courts

E. Fees: often statutory.

Specialization
A. Specialties: generally strictly separated and incompatible to practice more than one. No/little mobility among them. Except judges and procurators, sometimes. Academics tend to be part-time and occupy other positions.

General Categories
1. Judges
2. Procurators
3. Government Lawyers (mostly administrative)
4. Advocates/Advisors
---a. General Legal Advice
---b. Litigation
5. Notaries
6. Academics

B. Admission:
1. Education,
2. Examination,
3. Apprenticeship,
4. Appointment

C. Competence:
Substantive or geographic monopolies.
Numerus Clausus: May lead to venality.

D. Disciplinary Authorities

1. Professional Colleges
2. Ministry of Justice
3. Courts

E. Fees: often statutory.

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