Civil Law Procedure

First principles – why study?PerspectiveTruths (laboratory)Reform Globalization

Role of lawyer

Civil Law Procedure

Role of lawyer (France)SpecializationSale of office / MDPForeign lawyers

Civil Law Procedure

France

Specialization Avouve Avocat Conseils juridique Legal adviser Foreign law

consultant

North Carolina

Specialization Litigator (admission) Lawyer In-house lawyer Legal adviser Foreign law

consultant

Civil Law Procedure

France

Sale of office / MDP Avouve Avocat Notary

North Carolina

Sale of office / MDP Litigator Transactional lawyer Notary

Civil Law Procedure

France

Foreign lawyer Avocat: pass exam +

reciprocity Legal adviser:

license required Foreign legal

consultant Notary

North Carolina

Foreign lawyer Lawyer: US law

degree + pass exam Lawyer: reciprocity

with other state Foreign law

consultant Notary

Civil Law Procedure

Legal feesRight to compensationContingent feesLoser pays

Civil Law Procedure

Civil law

Right to compensation Traditionally –

gratuitous Avocat: by

agreement, quantum meruit

Avoue: fee schedule

Common law

Right to compensation Traditionally – by

agreement No fee schedule for

civil cases Court appointment in

criminal cases

Civil Law Procedure

How do rules on legal fees affect the quality and quantity of litigation

(and justice) in a legal system?

Consider:Contingency feesLegal aidFee-shifting (deposits)Settlements

Civil Law Procedure

Civil law

Contingent fees Traditionally – illegal

and unethical Supplemental

percent payment permitted

Common law

Contingent fees Common law

prohibits UK: 1990 Act permits

up to 25% damages US: state bar rules

permit, regulate

Civil Law Procedure

Civil law

Loser pays Winning party

recovers fees from loser (fee schedule / deposit)

Exception in govt cases

Legal expense insurance

Common law

American rule Each party pays,

unless statute permits shifting

UK: 1990 Act permits up to 25% damages

US: state bar rules

Civil Law Procedure

Civil law

Legal aid Personal

economic circumstances

non-frivolous claim

Fee schedule

Common law

Legal aid poverty criterion Public interest cases funding cuts Staff attorney

Civil Law Procedure

Is the “judicare” of European civil law countries superior to our system,

which only provides a lawyer to the wealthy and the poor with big

claims?

Civil Law Procedure

Hypotheticals

A French avocat accepts a legal aid case:Would an avocat in litigation be better off by being unsuccessful – and getting paid legal aid rates – than winning and only getting statutory fees?May the avocat waive his legal aid rates and be paid by the loser at a higher schedule? Can the avocat, after success makes client wealthy, demand quantum meruit fee rather than legal aid fee?