Choosing your battles
Legal Week Global comment
June 16, 2003 at 08:03 PM
3 minute read
Strange as it may seem, the annual meeting of the Council of the Bars and Law Societies of Europe (CCBE) in Bergen this May was dominated by a non-lawyer – Mario Monti.
Monti, the competition commissioner for the European Commission (EC), has a plan up his sleeve that is making lawyers across the European Union's 15 member states see red.
In a rather condescending speech to the German Bar this March, Monti suggested to his assembled audience of lawyers that their profession was anti-competitive, out-dated and needed a damn good shake-up.
"Having a long and honourable historic tradition should not be a barrier to modernising, offering new services and to becoming more competitive," he told the gathering.
Monti added that, ready or not, he would be reporting back to the EC at the year's end on what changes European lawyers needed to accept to become more competitive. And by competitive Monti means more transparent in terms of pricing, making practice rights easier to obtain and allowing non-lawyers to give legal advice.
A member of Norway's competition commission told the CCBE members in Bergen much the same thing – much to the annoyance of some delegates.
Many lawyers refuse to recognise that their profession's inherent anti-competitiveness is a problem. They insist that what economists dub 'restrictive practices' in fact help prop up the civil justice system by preserving the integrity of the legal profession.
They argue – and they do it well – that you cannot safeguard access to justice if, as some Brussels-based thinkers have suggested, you allow anyone to practise the law who fancies a go at it with the minimum of regulation. Even Monti accepts that lawyers should be regulated to some degree. It is just that he believes that many of the restrictive rules that operate across Europe are more to do with lining lawyers' pockets than upholding justice.
Such practices range from gentlemen's agreements to co-ordinate associate salaries and prevent partner poaching, to advertising restrictions, fixed fees and the barriers to entry to the profession represented by the excessive time and expense of qualification in some countries.
Then, of course, there is the ban on multi-disciplinary partnerships which is imposed in most, but not all, European countries.
The CCBE is already marshalling its resources in a bid to head off Monti's assault on the European legal profession – and it is poised to commission an economic study to look in depth at the extent to which the current regime can be justified on economic grounds.
But it must be careful to pick battles that it can win – and avoid attempting to defend practices that cannot be justified on any grounds.
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