on October 13, 2017 – Pierre BERLIOZ – Right
© Emmanuel Bread/DICOM/MJ – Pierre Berlioz, professor of law, Paris Descartes University, former advisor to the keeper of the Seals.
While the legal services market is disrupted by the arrival of new technologies and the arrival of the companies of legaltech, the idea of a great profession of the law has recently reemerged. There is not necessarily a cause and effect relationship between the two…
For a number of its defenders, the more numerous can be the same, it is in fact less than redefine the boundaries of the law, and to unify under a single banner to the jurists, only practitioners with legitimate right, to reconcile a number of professionals with the same practice, namely the right of the company, in other words, mainly lawyers and company lawyers.
The apology renewed of the great profession of the right contrast in any case sharply with the hostility displayed by others with respect to the recent company multi-professional exercise, and more generally of any interprofessionnalité.
When this topic is being discussed, many are those who, among the different professions concerned, and to their representative bodies, opposed to their professional rules of conduct, highlighting their irreducible singularity, to justify the impossibility to build and especially to operate such structures.
Pierre Berlioz, adviser to the garde des Sceaux, at the microphone, surrounded by Kami Haeri, Bruno Dondero and president Frédéric Sicard, during Jinov. © A. P.
For those who have seen these demonstrations of hostility, expressed in particular by several appeals against the texts establishing the company’s multi-professional exercise, for those who have experienced the discordance of voices within some professions, for those who have experienced the dissonance between discourse individual, very innovative and official speeches very conservative, the idea of the great profession of the law quite widely in the traits of a chimera. And yet…
Differences exist undoubtedly among the professions. But they should not be exaggerated. Indeed, there are important commonalities between them, to start with an activity, that they all have in common : the consultation and the drafting of legal acts.
This activity is in addition regulated in its exercise by a number of obligations, independence, secrecy, accountability, insurance, etc. which are all principles forming a base common to the various professions, because they are to be found in their special regulations.
“The multi-professionalism of today is a new activity, which has not yet been practiced. It remains to understand the reality. ”
Thus, in reality, the great profession of the law is likely that there is already, implicitly, in the rules applicable to the legal professions and the courts. It has a characteristic activity, which ought also to be the subject of a legal definition is precise, as well as a corpus of principles that are applicable to it, all signs of his existence, latent.
Admittedly, differences exist in the application of these principles to some special activities, specific to one or another of the professions component of the legal landscape French. But these differences can be viewed as modalities or degrees, more than nature, for it is essentially to adapt these general principles to the specifics of these activities.
The sector of legal services presents the particularity of knowing a number of reserved activities, due to the specific nature of the acts performed. For overriding reasons of general interest, these activities legal representation, authentication, allocation of enforceability, and the implementation of the constraint… must be subject to special regulations. And it should in particular provide that those who do are subject to special requirements, in an imperative of protection of the recipient of the legal service.
The partition of the legal activity is needed. But it leads mainly to distinguish the acts, and the specific requirements for their realization. It does not justify the erection of walls between the different actors. Unity does not mean uniformity.
The great profession of the law does not imply that each of its members may do all the activities that make up its perimeter. Around a common core, a number of activities that can be reserved for professionals who have acquired a specific skill.
This is why the inter-professionalism is essential to the great profession of the law. Complementary to the joint activity, it is possible to exceed the score of the special activities, not by merging them, but by bringing together, in order to realize the benefits of composite, that exploit the synergies existing between the specific acts, while respecting the specific requirements of each.
The ordinance creating the corporation: a multi-professional exercise and the decrees for its application poses this principle, cardinal : everyone must keep control of the actions he has only the possibility to accomplish. But these texts have simply organized the co-existence of the professions and of their exercises within the structure, without truly respecting the joint work, and develop a law of the multi-professionalism. It is necessary to go beyond.
By definition, the multi-professionalism is more than a conjunction, it is a combination. It is a complex activity, in which the different elements are closely intermingled, forming a novel activity. Otherwise, if the different elements are easily identifiable, each may be governed separately.
Its rules must therefore be clear of the different rules applicable to acts of which it is composed. These rules constitute the natural material from which the right of the multi-professionalism can be built. And it will be the first chief with the general principles that may be deduced from the confrontation of different special rules, because these principles form the foundation who founded the multi-professionalism. The rest will be the result of the combination of the rules applicable to the activities that the practice will unite in a common exercise, and, when the positive law does not provide the resources necessary, standards specifically developed for the multi-professionalism.
It thus achieves a synthesis that allows the great profession of the right to exist, in respect of the identity of each, that it does not dissolve but, on the contrary, the sublime, showing the essence, as the richness of the combinations.
It is, however, nothing without the intervention of the founder of those who constitute the actors. to the difference of the joint exercise of the professions, the multi-professionalism of today is a new activity, which has not yet been practiced. It remains to understand the reality.
It is up to the practitioners that it is the first head to give it body, by designing the services that will form the substance, in compliance with combined rules that govern the activities that compose them.
And it will be up to the bodies of the various professions to accompany this movement. This is what is emphasized in the hollow the decrees when they provide a communication between the supervisory authorities, in order to enable them, each in respect of them, to draw the consequences of the events relating to the company or of the deficiencies identified.
The inter-professional called the inter-ordinalité. And the principle is the same : it does not merge the instances, but to rally their interventions in order to overcome the partition of the activities, to draw a common framework that would enable them to practise both in their singularity in the multiplicity of their possible combinations.
For all those who are hostile to the great profession of the law, because they fear losing their soul, it must be said that this is not uniform, this is not fusion. The great profession of the law is not made for clones, it is a family in which everyone has traits in common, those of the lawyer, but also the specificities of which the union makes the force.