Rights and duties of the lawyer

It was some time ago that I was planning to write an article on this topic to answer many questions of litigants who, with the least problems with their lawyer, threaten them to contest their honorarium and / or engage their professional responsibility, problems that often arise because of the very behavior of the litigant due to his ignorance of the law and justice in general and of our profession in particular.

Let us recall the essential principles (Article 1 of the National Rules of the National Lawyer Profession ): the lawyer carries out his duties with dignity, conscience, independence, probity and humanity. He also respects in this exercise the principles of honor, loyalty, selflessness, confraternity, delicacy, moderation and courtesy. He demonstrates to his clients his competence, dedication, diligence and prudence.

In addition, there are some provisions laid down in the Code of Ethics for European Lawyers adopted by the Council of European Bars in Strasbourg on 28 October 1998 and incorporated into Article 21 of the National Internal Regulation of the Lawyers’ Profession: the lawyer does not act only when mandated by his client. The lawyer does not agree to take on a case if he knows or ought to know that he does not have the competence to deal with it unless he cooperates with a lawyer with that jurisdiction. The lawyer can not accept a case if he is unable to deal with it promptly, given his other obligations. The lawyer can not exercise his right to stop taking care of

Let us end this presentation of the texts by a provision of our own Internal Regulation (that of the Bar of Seine-Saint-Denis) which specifies, in its article 10-II that: the lawyer is entitled at any moment to interrupt his mission , in order to prevent his client in good time to enable him to defend his interests .

To start, I can not resist to quote you here some details on the oath of lawyer taken from the blog of my sister, Michèle Bauer, which you can find on  this page :

  • Dignity : the lawyer gives an image of respectability, he must have a correct dress and a suitable language avoiding provocation.
  • Consciousness : be aware of its function, which is to meet the expectations of its customers in a serious way respecting an intellectual and moral rigor.
  • Probity it is honest in the ordinary sense of the word but also honestly intellectually and not deceive his client.
  • Humanity : be tactful, understanding, caring and caring towards our customers who often go through difficult times.
  • Independence : the lawyer is independent and can not be in a bond of any moral, intellectual, legal or economic subordination.

Let’s take these principles in a logical order to get some ideas out of them.

When the client comes to consult the lawyer, for the first time, for a given dispute, the latter must very quickly inform the client of his refusal to take charge of his file, if he is not able to defend it effectively. whether due to lack of time (rare) or the fact that the dispute is in a foreign domain (much more common).

This refusal is usually done by telephone and avoids unnecessary travel to the litigant.

This first step passed, at the appointment, the client explains in detail his dispute to the lawyer. It is there that will play the duty of advice of the latter and that can arise the first difficulties.

Indeed, the client often comes to consult the lawyer with a number of ideas received in mind, both on the profession and on his file itself. In particular, it is very common for the client to consider his case “concrete” and therefore “captive” (to use barbarism), even though the lawyer has a different opinion on the matter.

It must then imperatively dissuade his client to introduce lightly (or pursue) a court action manifestly doomed to failure.

Indeed, the fact of receiving instructions from his client does not exempt him, on the contrary, from giving him his personal opinion on the file and from inciting him to prudence and moderation, if he deems it necessary .

This does not, however, avoid the case where the client still loses his suit despite the prior cautions of his lawyer, whom he later criticizes through a professional liability procedure for failing to present his case. to the judge every possible defense.

In this regard, the Court of Cassation recalled in  a judgment of 21 December 2007 (No. 06-11.343) that: “if, among the guiding principles of the trial, Article 12 of the Code of Civil Procedure requires the judge to give or restitute their exact qualification to the facts and acts litigious invoked by the parties in support of their claims, it does not make it obligation, except special rules, to change the name or the legal basis of their requests (…) “.

How do I know if I need a lawyer and if so, how to find a good one?

An article very down to earth with a title that befits its content.

You are facing a legal problem that can take many forms (possibility to check several boxes):

  • you are married or in concubinage and parents and you disagree with your good half for the “custody” of children and the amount of alimony
  • you have a problem with your ISP or mobile carrier
  • you have not paid your last two months of rent, your landlord begins to fulminate maliciously and threatens you with an eviction
  • you have been arrested by the police in possession of cannabis resin (just for your personal consumption, huh!)
  • your employer leads you hard, you do not stop to do unpaid hours, he also has, without asking your opinion, lowered your pay, and seems ready to fire you because that he does not support you anymore
  • your neighbor refuses to prune a tree that is very close to the boundary between your two fields and this one causes you a significant loss of sunshine
  • your house has defects and you want to blame the builder and the former owner

Do these different situations require the intervention of a lawyer or not? How do you know when you know nothing about it in law?

First revelation: the lawyer can intervene in any conflict situation, which is the case in all the examples above. Sometimes it can also intervene in non-conflict situations but for which a court order must be made to create a new legal situation (eg divorce by mutual consent or adoption).

The role of the lawyer is to advise the person who comes to consult on his rights in relation to the facts that it relates to him and that he is able to prove. The proof is indeed the nerve center of the legal action. To be right is good, to be able to prove it, it’s better. The lawyer must determine what the client wants and see if it is possible to achieve the goal sought by the latter and what means must be implemented to achieve it.

It is important to keep in mind that in order to have the most effective intervention of the lawyer, it must be understood at the onset of the conflict situation. As I often say, the more we intervene late, the more likely the client will make mistakes that may prevent them from achieving their intended purpose.

In theory, the lawyer is therefore indispensable. But in practice, should there be automatic recourse as soon as a problem occurs?

And in practice, the problem is that the lawyer is not free and it is better to think twice before applying. This is all the more true as the lawyer is entitled to charge the client any time spent on his file. This is the case, for example, of the simple request for legal information on a particular case by telephone. So do not be surprised that lawyers are not big talkers on the phone.

Contrary to a persistent false rumor, the first consultation with a lawyer is not, in principle, free. If the latter listens to you and delivers you legal information, he is entitled to claim a fee for the service he has provided.

The only information that a lawyer has to give to his interlocutor free of charge relates to the fixing of his fees (his hourly rate, the fees usually charged for “standard” procedures, the fact that he accepts or refuses aid files. jurisdictional …).

Knowing that the hourly rate of a lawyer is, as a rule, between 100 and 300 euros, the bill can quickly be salted for the client.

Thus, the first evidence is that it is unattractive to have a lawyer for a small dispute (less than 1000 euros) or a small offense. It is better, in this case, try to fend for yourself. But the use of the lawyer is still possible, especially to reassure and support, in his approach, the litigant.

The intervention of the lawyer, in this type of litigation, also makes it possible to show to the opposite party that one takes things seriously, which risks, either to harden the conflict, or to solve it, the opposite party does not not wishing to inflame the situation (and also have to resort to an expensive lawyer on his side).

It is possible for small consumer law cases to blame consumer advocacy groups for advice and support.

There are also certain disputes in which our role is limited to mediating between our client and the other party in order to arrive at a solution that satisfies everyone. Generally, these are cases where we treat more the fact that the law, that is to say that our role is often limited to gathering documents and to take stock with our client on his family, financial and professional situation in order to lead, at the hearing, the Judge to adopt rather our point of view than that of the adversary.

Where our intervention is really necessary, it is in all disputes that require a good knowledge of the law and the judicial procedure to obtain the result expected by the litigant. Some of these procedures require legal representation. This is the case as I have already explained before the Tribunal de Grande Instance. The problem does not arise, the litigant having anyway no choice.

For other procedures, legal representation is not mandatory. The litigant can then try to do without it but at the cost of certain efforts since he will himself have to seek the legal information he needs, write his conclusions (if necessary), mount his pleadings and ensure his own defense before the court with the very important risk that being layman in the matter, he makes some mistakes that can totally destroy his chances of success.

It is in this latter case that the question of whether or not to use the lawyer will generally be seriously raised. The litigant will have to balance the cost of the professional with the increase in the probability of winning and in this case, to obtain more through his intervention.

I wanted, through this post, to talk to you about legal aid.

If you do not have very high resources (the scales are fixed each year, the ceiling for legal aid is 874 euros and that for legal aid partial of 1.311 euros for 2007, but it is also taken into account family expenses) and that your legal protection insurance does not bear the costs related to your dispute, you have the possibility to file a file with the Office of Legal Aid (or BAJ).

You must then go to the High Court of your home to pick up a file that you must carefully fill out and to which you must attach a number of documents.

These are mainly:

  • a piece of identification (identity card, passport, residence permit)
  • the family record book
  • proof of address
  • the income tax return and tax notice from the previous year
  • recent evidence of resources
  • possibly, previous court decisions, summonses, summonses

If you have not chosen a lawyer yourself, the BAJ will appoint one to you. Otherwise, you will need to attach to your file the letter of acceptance from the lawyer you wish to be designated.

If necessary, you can also ask the BAJ to designate you:

  • an attorney (if it is a case pending or to come before the Court of Appeal and the presence of an attorney is mandatory),
  • a bailiff (in order to carry out all the meanings, forced executions etc.),
  • an interpreter (who can be very useful if you do not express yourself well in French)

The file must be filed with the Court of Grande Istance of your home (if no procedure is still engaged) or the place where the case is treated (if the file is already in progress).

If you get a positive answer, the State will take charge of either all or part (more or less important, ranging from 15 to 85%) of the costs of the procedure. Otherwise, you have one month to challenge the refusal of the BAJ.

Know that you have one year from the date of the decision of the BAJ to initiate the procedure, said decision no longer valid beyond this time.