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Lawyer at the Council of State and the Court of Cassation

Latest update: : 2020-04-15 17:21:01

1. Defining the activity

The lawyer in the Council of State and the Court of Cassation is a judicial professional responsible for assisting and/or representing the parties in case of litigation before the Council of State and the Court of Cassation.

These counsel to the boards are the only ones entitled to plead before these courts when representation is mandatory.

Two degrees. Professional qualifications

a. National requirements

National legislation

In order to practise as a lawyer in the Council of State and the Court of Cassation, the professional must meet the following aptitude requirements:

  • Be a French national or a national of a Member State of the European Union (EU) or a party to the European Economic Area (EEA) agreement;
  • hold a master's degree in law (B.A. 4) or a title or training recognized as equivalent for access to the profession of lawyer;
  • have been on the board of a lawyer's bar for at least one year;
  • have received specific training (see infra "Training in the profession of lawyer at the Council of State and the Court of Cassation");
  • have successfully passed the aptitude test for the profession of lawyer at the Council of State and the Court of Cassation;
  • not be the subject of any criminal conviction for acts contrary to honour, probity or good morals;
  • not be subject to any disciplinary or administrative sanction of dismissal, delisting, dismissal, withdrawal of accreditation or authorization;
  • not be subject to personal bankruptcy or a prohibition on running, managing, administering or controlling a commercial, artisanal or agricultural business.

As soon as he fulfils these conditions, the professional is appointed (see infra "2." a. Nomination" by the Seal Guard:

  • In an existing office, on presentation of the person concerned;
  • In a created office;
  • in a vacant office;
  • in addition to these methods of appointment to practise as a Liberal lawyer, a lawyer with counsel may be appointed as an employee in an office.

Note that

A professional who holds a legal office in the Council of State and the Court of Cassation may not employ more than one salaried lawyer on the same council.

To go further Article 1 of Decree 91-1125 of 28 October 1991 on the conditions of access to the profession of lawyer in the Council of State and the Court of Cassation.

Good to know: exemptions

Exempt from obtaining a master's degree in law, registering on a bar board and specific training:

  • members and former members of the Council of State, except the masters of petitions and auditors;
  • magistrates and former magistrates of the Court of Cassation and the Court of Auditors, with the exception of councillors, referendum attorneys general and auditors;
  • they justify four years of exercise:- university professors in charge of legal education,
    • masters and former masters of petitions to the Council of State, councillors, referendum attorneys general and former referendum general counsel to the Court of Cassation and the Court of Auditors;
  • as long as they justify at least one year of professional practice with a lawyer at the Council of State and the Court of Cassation:- magistrates and former magistrates of the judicial order, other than those mentioned above and justifying having exercised for at least eight years,
    • members and former members of the Council of State and the Court of Auditors other than those mentioned above, members and former members of the body of administrative tribunals and administrative courts of appeal and members and former members of the chambers accounts with at least eight years of experience,
    • law lecturers and former assistant professors with a doctorate in law and justifying a practice of at least ten years of legal education,
    • lawyers and former lawyers registered for at least ten years on the board of a French bar or an EU member state,
    • advice and former legal advice that can be included for at least 10 years on a list of legal advice,
    • notaries with at least ten years of experience.

To go further Articles 2 to 4 of Decree 91-1125 of October 28, 1991.

Training

Training in the profession of lawyer at the Council of State and the Court of Cassation

This training, lasting three years, is provided under the authority of the Council of the Order of Lawyers in the Council of State and the Court of Cassation, which sets out its terms. The professional admitted to the training is registered on a specific register maintained by the Council of the Order.

This training consists of:

  • theoretical education in the form of participation in the work of the lawyers' internship conference at the Council of State and the Court of Cassation and professional practice;
  • professional practice under the control of the Council of the Order and under the responsibility of a traineee master, lawyer at the Council of State and the Court of Cassation.

In the event of a criminal conviction for breaches of honour, probity and morals, or in the case of unjustified absence for more than three months, the trainee professional may be subject to a delisting and training.

At the end of his training, the professional is given a certificate of completion of training stating the duration of the service performed, the nature of the duties performed and the observations of the trainee.

To go further Articles 6 to 16 of the decree of 28 October 1991 above.

Aptitude test for the Certificate of Fitness to Advocate (Capac)

In order to practise as a counsel and by the Court of Cassation, the professional must have successfully completed an aptitude test consisting of written eligibility tests and oral admission tests.

This examination is before a jury composed of:

  • a State Councillor;
  • an adviser to the Court of Cassation;
  • a university professional, in charge of legal education;
  • three lawyers in the Council of State and the Court of Cassation.

The modalities and programme of the tests are set out in the annex of the decree of 22 August 2016 setting out the programme and the modalities of the examination of aptitude for the profession of lawyer at the Council of State and the Court of Cassation.

Once the professional fulfils these conditions, he must apply to the President of the Council of the Order of Lawyers for this examination to the Council of State and the Court of Cassation (see infra "5o). a. Application for registration for the aptitude test").

Note that

Some professionals may benefit from the exemptions set out in Article 17 of the decree of 28 October 1991.

Once the examination has been successfully completed, the professional is issued a Certificate of Aptitude for the Profession of Counsel (Capac).

To go further Articles 17 and 18 of Decree 91-1125 of October 28, 1991.

Continuous vocational training

Counsel to the Court of Cassation is required to carry out continuous training.

This mandatory training, lasting twenty hours (over a period of one year) or forty hours (over a period of two years), can take the form of:

  • participation in legal or vocational training activities at universities;
  • participation in training by lawyers at the Council of State and the Court of Cassation or educational institutions;
  • assistance at legal conferences or conferences related to the professional's activity;
  • an exemption from legal education in an academic or professional setting;
  • publication of legal work.

Note that

During the first two years of professional practice, this continuing education must include ten hours of agency management, ethics and professional status. However, the training of professionals benefiting from exemptions, must focus exclusively on these points.

In addition, every year, no later than 31 January, the professional is required to report the number of hours of continuing education followed to the secretariat of the Council of Lawyers to the Council of State and the Court of Cassation.

To go further Articles 18-1 and 18-2 of the decree of 28 October 1991 above and Article 13-2 of the ordinance of 10 September 1817 which brings together, under the name of the Order of Lawyers in the Council of State and the Court of Cassation, the Order of Counsel to Counsel and the College of Lawyers to the Court of Cassation, irrevocably sets the number of holders, and contains provisions for the internal discipline of the Order.

Appointment

The professional who meets the general qualifications of aptitude and holds the Capac must, in order to take an oath and take office, be appointed by the Minister of Justice.

The professional who meets the general requirements of suitability for the profession of lawyer in the Council of State and the Court of Cassation may be the subject of an appointment on an office created under the conditions provided by Articles 24 and 25 of Decree 91-1125.

The candidate wishing to succeed a lawyer on the council must apply for approval from the Minister of Justice (see infra "5o. b. Application for accreditation for a nomination upon presentation").

The professional wishing to practice as an employee, in an office created must submit his application to the Minister of Justice (cf. infra "5. c. Request for appointment for a salaried exercise").

In addition, in the event of an office declared vacant, the Minister of Justice makes a call for expressions of interest, by decree published in the Official Journal of the French Republic and sets the amount of compensation due. The professional wishing to fill this vacant office must apply to the seal keeper, accompanied by a commitment to pay this compensation.

Note that

The professional may also practise as a lawyer in a company, under the conditions provided for in Decree No. 2016-881 of 29 June 2016 relating to the practice of the profession of lawyer in the Council of State and the Court of Cassation in the form of society other than a professional civil society, such as a multi-professional practising society.

Once appointed, the professional takes office from the time of his swearing-in. This is to be done within one month of his appointment by the Minister of Justice.

To go further Articles 19 to 31 of Decree 91-1125 of 28 October 1991 on conditions of access to the profession of lawyer in the Council of State and the Court of Cassation.

Costs associated with qualification

Training leading to Capac is free. You can check out the order of lawyers at the Council of State and the Court of Cassation , for more information.

b. EU nationals: for temporary and casual exercise (Free Service Delivery (LPS))

There is no provision for the national of an EU or EEA state for a temporary and casual exercise in France. As such, the person concerned is subject to the same requirements as the French national (see above "2o. a. National requirements").

c. EU nationals: for a permanent exercise (Free Establishment (LE))

Any EU or EEA national, legally established and practising the activity of counsel and near the Court of Cassation, may carry out the same activity in France on a permanent basis.

To do so, he must have completed a post-secondary education course of at least three years at a university or higher education institution, and justify either:

  • have a diploma, certificate or other title allowing access to the profession of legal counsel within an EU or EEA Member State issued either by the competent authority of that EU or EEA member state or a third country recognised by a state EU
  • have been in this occupation for at least two years in the past ten years, when the state does not regulate access or the practice of the profession.

As soon as the national fulfils these conditions, he must submit to the aptitude test in the same way as the French national (see above "Examination of fitness for the profession of lawyer at the Council of State and the Court of Cassation").

To go further Article 5 of the decree of 28 October 1991 above.

Three degrees. Conditions of honorability, ethical rules, ethics

Ethics

The professional practising the activity of counsel and near the Court of Cassation is bound to respect the rules of ethics set by the profession.

As such, it is required to:

  • to exercise independently;
  • respect for professional confidentiality
  • Act to avoid any conflict of interest of its clients;
  • respect for the requirements of courtesy, delicacy, moderation and loyalty to the various jurisdictions;
  • respect for the duty of delicacy and solidarity towards his colleagues;
  • to exercise moderation and delicacy in setting its fees.

Good to know

The professional's fees are set in agreement with the client within a fee agreement.

The general rules of ethics are available on the order of lawyers at the Council of State and the Court of Cassation .

To go further Article 15 of the ordinance of September 10, 1817.

Discipline

In the event of a breach of ethical and professional rules, counsel may be subject to disciplinary proceedings. As such, he faces the following disciplinary penalties:

  • The warning
  • Blame him;
  • a temporary ban on practising, which may not exceed three years;
  • delisting from the avocado board or removing the honorariat;
  • deprivation of the right to be a member of the Council of State's Bar Association and the Court of Cassation.

To go further Decree No. 2002-76 of 11 January 2002 relating to the discipline of lawyers in the Council of State and the Court of Cassation.

It's a four-degree one. Financial insurance and guarantee

Insurance group contract

The professional civil liability of lawyers in the Council of State and the Court of Cassation is governed by Article 13 of the ordinance of September 10, 1817. The College Council has signed an insurance group contract to ensure the professional activities of lawyers and councils.

Obligation to justify a financial guarantee

The lawyer must justify a financial guarantee that will be allocated to the repayment of the funds received during his activity. This is a bonding commitment made to a bank or credit institution, an insurance company or a mutual surety company. Its amount must be at least equal to that of the funds it plans to hold.

To go further Articles 210 to 225 of Decree 91-1197 of November 27, 1991 organizing the profession of lawyer.

Five degrees. Qualification recognition procedures and formalities

a. Application for registration for the aptitude test

Competent authority

The candidate for the aptitude test must submit an application by letter recommended with notice of receipt to the President of the Council of the Order of Lawyers at the Council of State and the Court of Cassation, no later than two months before the date of the first test.

Supporting documents

His application file must include the following documents:

  • Apply for registration on free paper
  • A copy of all documents to justify his identity, nationality and residence;
  • an extract from his criminal record;
  • a certified copy of his master's degree in law, or a title or diploma admitted in equivalency, or, if necessary, a proof of the exemption to that diploma;
  • proof of registration for at least one year on the bar board or, if necessary, proof of dispensation;
  • a copy of the certificate of completion of training or the justification for the training exemption.

Time and procedure

The College Council decides on the list of candidates eligible to run within four weeks of the start of the exam session. An individual summons is addressed to each candidate, at least fifteen days before the date of the first test.

To go further : decree of 22 August 2016 setting out the programme and the modalities of the aptitude examination for the profession of lawyer at the Council of State and the Court of Cassation.

b. Application for accreditation for a presentation appointment

Competent authority

The applicant must submit a request to the Minister of Justice.

Supporting documents

His application must include all the agreements between the holder of the board or his rights holder and the candidate and, if necessary, all the elements to justify his financial capacity.

Time and procedure

The Minister of Justice may seek the advice of the Council of the Order on the candidate's honourability and financial capabilities. In the absence of notice issued by the Council beyond a period of forty-five days, it is deemed to have issued a favourable opinion. In addition, the Minister receives the reasoned opinion of the Vice-President of the Council of State, the first President and the Prosecutor of the Court of Cassation. In the absence of notice issued beyond forty-five days from the referral, the notice is deemed rendered.

To go further Articles 20 to 23 of Decree 91-1125 of 28 October 1991 on conditions of access to the profession of lawyer in the Council of State and the Court of Cassation.

c. Request for appointment for a salaried exercise

Competent authority

The request must be made by the holder of the office and the candidate, to the Minister of Justice, within two months of the publication of the competition authority's recommendations for the creation of law offices in the Council State Court and the Court of Cassation.

Supporting documents

His application must include a copy of the employment contract and all the necessary documentation.

Time and procedure

The Seal Keeper receives the reasoned opinion of the Vice-President of the Council of State, the First President and the Attorney General of the Court of Cassation and the Council of the Order on honorability, professional capacity, and compliance with the employment contract candidate of the professional rules. In the absence of a response beyond forty-five days from the time they are moved, the notices are deemed to have been rendered.

Note that

The lawyer is required to take the oath within one month of his appointment, otherwise he will be deemed to renounce his appointment.

To go further : decree No. 2016-651 of 20 May 2016 relating to lawyers in the Council of State and the Court of Cassation.

d. Remedies

French assistance centre

The ENIC-NARIC Centre is the French centre for information on academic and professional recognition of diplomas.

Solvit

SOLVIT is a service provided by the National Administration of each Member State of the European Union or party to the EEA agreement. Its aim is to find a solution to a dispute between an EU national and the administration of another of these states. SOLVIT intervenes in particular in the recognition of professional qualifications.

Conditions

The person concerned can only use SOLVIT if he establishes:

  • that the public administration of one EU state has not respected its rights under EU law as a citizen or business of another EU state;
  • that it has not already initiated legal action (administrative action is not considered as such).

Procedure

The national must complete an online complaint form. Once his file has been submitted, SOLVIT contacts him within a week to request, if necessary, additional information and to verify that the problem is within his competence.

Supporting documents

To enter SOLVIT, the national must communicate:

  • Full contact details
  • Detailed description of his problem
  • all the evidence in the file (for example, correspondence and decisions received from the relevant administrative authority).

Time

SOLVIT is committed to finding a solution within ten weeks of the day the case was taken over by the SOLVIT centre in the country in which the problem occurred.

Cost

Free.

Outcome of the procedure

At the end of the 10-week period, SOLVIT presents a solution:

  • If this solution resolves the dispute over the application of European law, the solution is accepted and the case is closed;
  • if there is no solution, the case is closed as unresolved and referred to the European Commission.

More information

SOLVIT in France: General Secretariat for European Affairs, 68 rue de Bellechasse, 75700 Paris ( official website ).