Dealing With a Split Legal Profession in Contentious Matters

A split legal profession may be unheard of in the United States, but this is hardly the case in continental Europe. On the contrary, this is very much a part of legal tradition, or at least legal history, of several countries this side of the Channel.

In France, conseils juridiques used to belong to a fully distinct profession until they were merged by statute in 1991 with avocats; and even today avous are still in existence, operate independently of law firms, and retain their exclusive right of audience in the French courts of appeal, as do the avocats la Cour de Cassation.

Whenever one needs to file an appeal in France, the party involved needs to instruct one of those lawyers; while it is normal that a foreign company rely blindly on the judgment and choice of its trial lawyer, their role is not all but perfunctory or formal, and especially before the Court of Cassation the counsel appointed may really make the difference.

In Italy, lawyers used to be either procuratori (attorneys) or avvocati (advocates), the former being those representing the parties in (civil) courts, the second being those defending them in court (and possibly advising them in transactional matters). While the distinction had already been weakened before 1997 by the fact that all advocates were also attorneys, the distinction remained very visibile in the fact that one was an advocate everywhere in Italy, but could only be admitted as an attorney in ones's district, and needed the assistance of local counsel whenever represention was required of a client in proceedings taking place elsewhere.

The different roles entrusted to different categories of lawyers, where they exist or have existed, have however always been very peculiar to each individual jurisdiction, and the two-tier English system has no real equivalent, save for the similar versions offered by Scotland and Ireland and a few other common-law countries.

It may also be the case that this system, often criticised and to an extent attenuated in the last ten years, has contributed to the overall undisputable success of English lawyers as a class, in comparison to their continental colleagues. It is almost banal to note that English solicitors managed to establish most of the largest practices in the world, and were in average more effective than American firms, in spite of their relatively smaller local market, in making large inroads in other jurisdictions, taking over local leading firms or actively...