Comparative Law Spring 2003 Professor Susanna Fischer CLASS 11 FRENCH LEGAL PROFESSION AND TRAINING Feb. 25, 2003

Officiers Ministériels What is an officier ministériel? Which types of French legal professionals are officiers ministériels?

Officiers Ministériels What is an officier ministériel? Public officers appointed by Minister of Justice. Must purchase/acquire practices. Which types of French legal professionals are officiers ministériels? Notaires, avoués, avocats aux conseils, huissiers Each of these professions are governed by societies like Bar Council for avocats, but more centralized. They train and enforce discipline.

Officiers Ministériels: Serving the Public Specialists who must serve all comers. (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.) Avocats are different. They can freely choose their clients.

Representing Yourself Need avocat before the Cour d'appel, the Cour de cassation and the Conseil d'Etat parties must be represented by an avocat - labor disputes are an exception in the Cour d'appel and the Cour de cassation. Otherwise, parties may represent themselves before the courts or instruct certain third parties to do so though some limits on who these third parties can be (e.g. Tribunal d’instance)

THE JUDICIAL BRANCH Judges Magistrats du parquet (ministère public) Both are civil servants To what extent is the judicial branch of government truly independent in France? Is it more or less independent than the U.S. judiciary? Why or why not?

JUDICIAL INDEPENDENCE Provided by Art. 64 of the 1958 Constitution Judges are inamovibles – can only be dismissed on very limited grounds by CSM sitting as a court (without Minister of Justice or President of the Republic; no right of appeal from its decision)

APPOINTMENT OF JUDGES Senior appointments (to Cour de Cassation, First President of cours d’appel, Presidents of TGI) chosen by conseil supérieur de la magistrature (CSM) – under Art. 65. Other senior appointments are made on advice of CSM More junior appointments made by a different commission that proposes names to the CSM Some criticize this body as too political to ensure judicial independance

MEMBRES of CSM (2002)

JUDGES ARE BARRED FROM CERTAIN WORK Can’t practice another profession Can’t carry on business Can teach or be artists Cannot express political opinions in public No right to strike

MINISTÈRE PUBLIC Public prosecutor’s office Prosecutors in criminal case; represent public in civil cases

Art. 65 Article 65 The section with jurisdiction for public prosecutors shall comprise, in addition to the President of the Republic and the Minister of Justice, five public prosecutors and one judge, and the conseiller d'Etat and the three prominent citizens referred to in the preceding paragraph. This was changed to make the CSM more independent (small majority of non-members of judiciary)

Art. 65 Article 65 The section of the High Council of the Judiciary with jurisdiction for public prosecutors shall give its opinion on the appointment of public prosecutors, with the exception of posts to be filled in the Council of Ministers.

Art. 65 Article 65 It shall give its opinion on disciplinary penalties with regard to public prosecutors. When acting in that capacity, it shall be presided over by the chief public prosecutor at the Court of Cassation. A constitutional statute Act shall determine the manner in which this article is to be implemented. Note – public prosecutors don’t have security of tenure like judges, but they are entitled to a hearing before dismissal

AVOCATS: TRAINING What must Pierre Hourcade do to become an avocat? How does this differ from the U.S. training? What are the advantages and disadvantages of the French system of training for avocats?

NATIONALITY Can someone who is not a French national become an avocat? Are there any restrictions based on nationality?

FRENCH LAW DEGREE 3 stages 1. DEUG - diploma of general university studies (awarded for successful completion of the first two years of studies) 2. Licence - after successful completion of three years of studies 3. Maitrise - after successful completion of four years of studies Afterwards may do DEA (diploma of advanced legal studies) or DESS (specialist diploma in legal practice)

Becoming an Avocat Masters degree in Law (maitrise en droit) – around 50% failure rate in first year Followed by Professional Stage – if you pass an entrance exam you study at a regional bar school and if you pass the final exam you obtan the CAPA 2 year period of “apprenticeship” as avocat stagiaire Admission