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General Reports of the XIXth Congress of the International Academy of Comparative Law Rapports Généraux du XIXème Congrès de l'Académie Internationale de Droit Comparé pp 261–280Cite as

The Organisation of Legal Professions

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Part of the book series: Ius Comparatum - Global Studies in Comparative Law ((GRIA,volume 24))

Abstract

The General Report on the organisation of legal professions provides a concise and thoroughly researched analysis of the latest developments within the legal profession across the globe. It is based on National Reports from 15 jurisdictions and includes a comparative study, which ranges from legal frameworks for legal professionals, prerequisites for being admitted to the bar, the organization of legal professions, the professional liability of lawyers for professional malpractice to the remuneration of lawyers’ services. Revealing differences and core values of legal practice in various jurisdictions this General Report makes a valuable contribution to the current debate on socio-legal challenges, which legal professionals around the world currently face.

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Notes

  1. 1.

    I am immensely grateful to Jost Bloom (Canada) and Lucie Lauzière (Canada/Quebec), Wang Ping (China), Minna Melender (Finland), Hanns Prütting (Germany), Aggeliki K Skouteri (Greece), Garret Sammon (Republic of Ireland), Guido Alpa (Italy), Kentetsu Kitamura (Japan), Andrzej Jakubecki (Poland), Luis Menezes Leitao (Portugal), Helena Whalen-Bridge (Singapore), Katja Plaustajner (Slovenia), Regina Garcimartìn Montero (Spain), Okay Durman (Turkey), Stephen M. Sheppard (USA), for their contributions without which this General Report could not have been compiled.

  2. 2.

    According to the U.S. National Report, if one includes those eligible to practice but not currently licensed, the actual number of U.S. lawyers is higher still. A conservative estimate, using the actuarial indices for the demographics of law graduates since 1950, suggests that there are 1,663,800 law graduates in the work force. The methodology for this estimate, which is preliminary here, and the data on which it is based, are in the appendix to Sheppard S (2014) The American law school: what it was, what it is, and what it ought to be. Cambridge Press, Cambridge.

  3. 3.

    Some portion of these lawyers is retired despite still retaining an active license. A significant portion of them is in positions in the public or private sector that are not considered positions of legal practice.

  4. 4.

    Albo Nazionale Avvocati (2012) Statistiche. http://www.albonazionaleavvocati.it/html/statistiche.html. Accessed 21 Dec 2014.

  5. 5.

    This can be due to many reasons such as working in a different job, which is incompatible with the legal profession (e.g. university teacher or court clerk).

  6. 6.

    Federal of Law Societies of Canada (2011) Statistical report 2011. http://www.flsc.ca/en/resources/#federation-Reports. Accessed 21 Dec 2014. Barreau du Québec (2011) Statistiques sur le barreau et les avocats. http://www.barreau.qc.ca/fr/barreau/donnees/. Accessed 21 Dec 2014.

  7. 7.

    Office des professions Québec (2012) Nombre de membres selon le sexe par ordre professionnel au 31 mars 2012. http://www.opq.gouv.qc.ca/fileadmin/documents/Systeme_professionnel/Statistiques/Membres_selon_sexe_2012-03-31.pdf. Accessed 21 Dec 2014.

  8. 8.

    This is the number of practicing female solicitors in Ireland. In looking at the female proportion of barristers, 60 percent of the bar is male and 40 percent female, but over 50 percent of the new entrants to the Bar in the last five years have been female.

  9. 9.

    Law Society of Singapore (2012) General statistics. http://www.lawsociety.org.sg/AboutUs/GeneralStatistics.aspx. Accessed 21 Dec 2014.

  10. 10.

    American Bar Association (2013) A current glance at women in law. http://www.americanbar.org/groups/women/resources/statistics.html. Accessed 21 Dec 2014.

  11. 11.

    This is due to clause 3.8 of the Code of Conduct provides that “In contentious matters, save for the purpose of acting in proceedings in accordance with Rule 5.15, barristers should not take instructions directly from a client…”. Clause 3.9 reinforces this rule by providing that “If a client contacts a barrister initially and asks the barrister to act the barrister should do nothing unless and until the barrister is contacted by the client’s solicitor but if it is a matter of urgency the barrister may contact the client’s solicitor”. A small number of organisations, which have been approved by the Bar Council of Ireland, form part of the Direct Professional Access Programme and can retain barristers directly without the need to have a solicitor act as an intermediary.

  12. 12.

    The solicitor has the same rights of audience as a barrister. However in practice, while solicitors regularly exercise their right of audience in the District Court and often at Circuit Court level, it is much more unusual and very rare, other than in routine matters such as case management issues, that a solicitor would exercise her right of audience before either the High Court or the Supreme Court.

  13. 13.

    Legal Profession Act (Cap. 161, Sing. Rev. Ed. 2009) section 12(1). See also Ewing-Chow M, Aedit A (1999) The Structure of the legal profession. In: Tan K (ed) The Singapore legal system, 2nd edn. Singapore University Press, Singapore, p. 368. More experienced lawyers, by virtue of their ability, standing at the bar or special knowledge or experience in law, may upon application be awarded the title of Senior Counsel. Legal Profession Act (Cap. 161, Sing. Rev. Ed. 2009), section 30.

  14. 14.

    The work of an advocate includes both, the provision of legal advice and legal presentation, while the position of a legal advisor covers the same scope of legal services, but not the legal representation in criminal law and fiscal law matters. This division into two professions will be abolished by 2015.

  15. 15.

    The “solicitador” is only entitled to provide legal services under very limited circumstances: If the advogado is not expressly responsible for a particular task, the solicitador is allowed to take over the case.

  16. 16.

    Provided that they pass an exam focused primarily on civil procedure law. In 2013, two-thirds of juridical scriveners were qualified to represent clients in summary courts, which are courts of the first instance, and they represented a party or both parties in approximately one-fifth of civil cases docketed for formal proceedings in all summary courts. Besides serving as counsel in the summary court proceedings, they also give their clients legal advice in and out of court as ever before, which was to some extent permitted after Article 72 of Attorney Act was revised in 2003.

  17. 17.

    Section 3 of the Solicitors Act 1954.

  18. 18.

    Article 7 of the Law n.° 49/2004.

  19. 19.

    Article 128 of the Act, RLRQ, c- B-1.

  20. 20.

    In Ontario, non-lawyers and paralegals are allowed to provide legal services, see Law Society Act, RSO 1990, c L.8. s. 1, last revised in 2013, chapter 17, sections 1-26. A move in the same direction as Ontario has recently occurred in British Columbia which allowed the law society to regulate the professions of certified paralegals and other existing providers of legal services. See Law Society of British Columbia (2013) Final report of the legal service providers task force. http://www.lawsociety.bc.ca/page.cfm?cid=99&t=Committee-and-Task-Force-Reports. Accessed 21 Dec 2014. British Columbia also has a separate profession of “notary public” which are able, among other things, to draw up contracts and administer oaths. Additionally, in Québec, there are two law societies, one for lawyers and another one for the so-called “notaires”, which are basically just authenticators of documents (Article 15 Loi sur le notariats, RLQC, c. N-3.).

  21. 21.

    Definitions of unauthorized practice vary among jurisdictions, but every state creates criminal or civil liability for any person who, without a valid license as an attorney at law, represents another person before a court or agency, prepares legal documents for another, or advises another person of rights or duties under law in return for payment. See Denckla DA (1999) Non-lawyers and the unauthorized practice of law. Fordham Law Review 67: 2581.

  22. 22.

    See National Notary Association (2014). http://www.nationalnotary.org/ Accessed 21 Dec 2014.

  23. 23.

    Patent attorneys, for instance, are permitted to represent clients in specific infringement lawsuits provided that the same client is entrusted to another attorney simultaneously (Art. 6-2 of Patent Attorney Act, Act No. 49 of 2000).

  24. 24.

    Non-lawyers other than these are also allowed to intervene in court procedures in very exceptional circumstances, including certain fields of administrative law, land law, divorce and debt cases. Moreover, various entrepreneurs are entitled to provide legal services in the field of law related to their main occupation and business, e.g., an estate agency or undertaker.

  25. 25.

    Articles 86 and 87 of the Civil Procedure Code.

  26. 26.

    Chartered Secretaries ensure that companies are in compliance with all of their statutory requirements in relation to corporate governance and taxation etc. but frequently are qualified solicitors and barristers. A notary public is a public officer who serves the public in non-contentious matters usually concerned with foreign or international business. Practising barristers and solicitors of five years good standing who have completed a four month professional notarial course are eligible to sit the examination for entry to the Faculty of Notaries Public. All persons registered as solicitors are entitled to function as Commissioners for Oaths. The main function of this role is the verification of affidavits. A Peace Commissioner is an honorary appointee of the Minister for Justice, Equality and Law Reform under section 88 of the Courts of Justice Act 1924 who has the power to take and witness statutory declarations and sign various certificates.

  27. 27.

    Such as the provision of legal assistance in tax law or representing clients in property law proceedings. Patent agents, for instance, are authorised to represent their clients in civil proceedings concerning industrial property rights cases. In these cases, patent agents enjoy the same rights of audience as legal advisors or advocates, except in proceedings before the Supreme Court.

  28. 28.

    See Legal Profession Act (Cap. 161, Sing. Rev. Ed. 2009), sections 33 and 34.

  29. 29.

    Article 63 of the Advocacy Act.

  30. 30.

    See Teršek A (2007) Ustavnopravna izhodišča odvetništva. Odvetnik 37: 4.

  31. 31.

    However, this concerns arrested persons only, who have the right to “retain and instruct a counsel without delay”. The fact that in Canada too an independent bar is considered a fundamental feature of Canadian society can be found in case law; its powers are defined by the provincial statute.

  32. 32.

    As indicated by the American National Reporter, there are greater cultural differences than seem at first glance. He stresses that any case or client can be refused by the US attorneys. Furthermore, there are several reasons which allow lawyers to withdraw from the client’s representation.

  33. 33.

    Remarkably, 14,830 female lawyers worked in 2012 and thus, more women than men practiced on the legal services market in Portugal for the very first time, see Pordata (2014) Lawyers: total and by sex. http://www.pordata.pt/en/Portugal/Lawyers+total+and+by+sex-245 Accessed 21 Dec 2014.

  34. 34.

    Teck JCW (2009) Liberalisation of the Singapore legal sector: recent developments (2004-2009). Working paper presented at 10th General Assembly of the ASEAN Law Association, Hanoi, 2009. http://www.aseanlawassociation.org/10GAdocs/Singapore3.pdf. Accessed 21 Dec 2014.

  35. 35.

    Teck JCW (2009) Liberalisation of the Singapore legal sector: recent developments (2004-2009). Working paper presented at 10th General Assembly of the ASEAN Law Association, Hanoi, 2009. http://www.aseanlawassociation.org/10GAdocs/Singapore3.pdf. Accessed 21 Dec 2014.

  36. 36.

    Therefore, it is planned to found a third law school and to increase the number of students receiving an undergraduate law from 120 to 180 people within the next three years. Ministry of Law of Singapore (2013b) Report of the 4th Committee on the supply of lawyers, at 11. http://www.mlaw.gov.sg/content/dam/minlaw/corp/News/4th%20Committee%20Report.pdf. Accessed 21 Dec 2014.

  37. 37.

    Ley 34/2006, de 30 de octubre, sobre el acceso a las profesiones de Abogado y Procurador de los Tribunales.

  38. 38.

    Ministerio de Justicia (2014). http://www.mjusticia.gob.es/cs/Satellite/es/1200666550200/Tramite_C/1288776144635/Detalle.html. Accessed 21 Dec 2014.

  39. 39.

    Prime Minister of Japan and His Cabinet (2001) Recommendations of JSRC, supra note 5, Chapter 3 Part 2 3. http://japan.kantei.go.jp/judiciary/2001/0612report.html. Accessed 21 Dec 2014.

  40. 40.

    In British Columbia, for instance, it is necessary to pass 12 hours per year, which can be considered as relatively modest. Besides, this requirement can be fulfilled in many different ways.

  41. 41.

    This has already been recommended in the 09/2007-Report launched by the Committee to Develop the Singapore Legal Sector.

  42. 42.

    However, the Lawyers’ Fee Act, adopted by the Parliament, will be used until the adoption of a new tariff.

  43. 43.

    Decision of the Constitutional Court of the Republic of Slovenia of 24th November 2005, Nr. U-I-212/03-14.

  44. 44.

    Decision of the German Federal Supreme Court of 13th November 2013, Nr I ZR 15/12.

  45. 45.

    Canadian Bar Association (2013) Alternative Business Structures (ABSs) and Multi-Disciplinary Practices (MDPs). http://www.cba.org/cba/epiigram/pdf/multi.pdf. Accessed 21 Dec 2014.

  46. 46.

    Kentetsu, National Report Japan, 7.

  47. 47.

    See Office of Pro Bono Services (2014) Law Society of Singapore. http://probono.lawsociety.org.sg/About-Us/. Accessed 21 Dec 2014.

  48. 48.

    Singapore Institute of Legal Education (2014) Pro bono programme. http://www.sile.org.sg/pro-bono-programme. Accessed 21 Dec 2014.

  49. 49.

    Hussain A, Lee A, (2013, December 7) Govt will provide direct legal aid to defendants in criminal cases. Today Online. http://www.todayonline.com/singapore/govt-will-provide-direct-legal-aid-defendants-criminal-cases#inside. Accessed 21 Dec 2014.

  50. 50.

    See also Law School Admission Council (2014) Law School Admission Test (LSAT). http://www.lsac.org/jd/lsat/about-the-lsat/. Accessed 21 Dec 2014.

  51. 51.

    Kentetsu, National Report Japan, 17.

  52. 52.

    Legal Profession Act (Cap. 161, Sing. Rev. Ed. 2009), 13.

  53. 53.

    Article 2 of the Regulation n.° 52 -A/2005.

  54. 54.

    Art. 7, Rule on Legal Apprenticeship; Kitamura, Kentetsu, National Report Japan, 21 f.

  55. 55.

    National Report Portugal, 6.

  56. 56.

    The students of Canadian common law provinces (except in Ontario) have to complete a year as articled students. By contrast, in Ontario, there is the alternative of two university-based programs. Nevertheless, the requirement of having passed the articling year has a noteworthy disadvantage: The content and the quality of the training received from the principal and his law firm during articles vary considerably. This is the reason why law societies organized mandatory training courses and examinations.

  57. 57.

    Actually Chinese trainees do have several “minor” rights, e.g., attending legal investigations or obtaining evidence.

  58. 58.

    Specifically, this is true of trainee solicitors only, future barristers may accept work in their own right and also have the right of audience during their year as devilling.

  59. 59.

    Article 77 of the Statutes of the Portuguese bar. See Ordem dos Advogados (2014) Statutes of the Portuguese Bar. http://www.oa.pt/Conteudos/Artigos/detalhe_artigo.aspx?idsc=128. Accessed 21 Dec 2014.

  60. 60.

    However, there is an interesting particularity: it is possible to maintain the status of lawyer even if the person concerned does not actually exercise the profession, but has a firm will to return to the profession afterwards (known as ‘maintenance of the status’ – arrangement). This exception does not apply if a person starts working as a legal counsel in a firm. Furthermore, a so-called secondment-arrangement can be made, which allows a lawyer to work in another firm, while still being paid by the law office.

  61. 61.

    Nevertheless, a German lawyer has a wide range of opportunities to exercise a second activity, e.g. working as a lecturer, doctor, politician or a tax consultant.

  62. 62.

    Except barristers who do not have this possibility because they are sole traders and cannot be employees at the same time. However, persons holding the barrister at law degree may be employed as in house-counsels, though they cannot engage in this function in court.

  63. 63.

    In this case, a Slovenian lawyer may be disbarred.

  64. 64.

    Generally speaking, there is no national (regulatory) law society in the United States. The federal bar does, however, exercise significant influence as the originator of a national code of attorney regulation.

  65. 65.

    There are two professional associations in Germany, namely the “Bundesrechtsanwaltskammer” (BRAK) and the “Deutsche Anwaltverein” (DAV). The BRAK (“German Federal Bar”) is the umbrella organization of the regional bars, whereas the Deutsche Anwaltverein (German Bar Association) is the voluntary membership organization for individual lawyers.

  66. 66.

    This is different for the profession of a juridical scrivener who has no supervising body and enjoys less rule-making and decision-making than its counterpart.

  67. 67.

    The barristers’ profession is also self-regulated, notably by the Bar Council and the Honourable Society of the King’s Inns. The Constitution of the General Council of the Bar of Ireland sets out the main aims and objectives of the general council of the Bar of Ireland. General Council of the Bar of Ireland (2011) The Constitution of the General Council of the Bar of Ireland. http://www.lawlibrary.ie/documents/memberdocs/ConstitutionAdopted25072011.pdf. Accessed 21 Dec 2014.

  68. 68.

    However, the federal American Bar Association does exercise significant influence as the originator of a national code of attorney regulation, versions of which have been adopted in every state.

  69. 69.

    Article 4 of the Lawyers’ Law.

  70. 70.

    In Singapore, the Council is the rule-making body of the Law Society whose regulations will not come into force unless they are approved by the Chief Justice. See Legal Profession Act (Cap. 161, Sing. Rev. Ed. 2009), sections 47, 71(1) and 71(2).

  71. 71.

    Legal Profession Act (Cap. 161, Sing. Rev. Ed. 2009), Part VII, Disciplinary Proceedings. See also Cheng CLA (2009) Legal systems in ASEAN, Singapore, Chapter 6, The legal profession. Workshop paper presented at 10th General Assembly of the ASEAN Law Association, Hanoi, 2009, at 11. http://www.aseanlawassociation.org/papers/sing_chp6.pdf. Accessed 21 Dec 2014.

  72. 72.

    Art. 31(5) of the Bar Act.

  73. 73.

    In Canada (without Québec), for instance, every second lawyer works in private practice (53 percent) and one out of five lawyers practice as an in-house counsel for corporations or entities like unions or societies or as a government lawyer (18 percent). In Poland, only advocates are entitled to practice without being employed by a law firm, whereas an employment contract is compulsory for working as a legal adviser.

  74. 74.

    Law Society of Singapore (2012) General statistics. http://www.lawsociety.org.sg/AboutUs/GeneralStatistics.aspx. Accessed 21 Dec 2014.

  75. 75.

    See American Bar Association (2012) Lawyer demographics 2012. http://www.americanbar.org/content/dam/aba/migrated/marketresearch/PublicDocuments/lawyer_demographics_2012_revised.authcheckdam.pdf. Accessed 21 Dec 2014.

  76. 76.

    Except in Poland, in which the Civil Code is applicable to general partnerships. All other models of partnerships are subject to the Commercial Companies Code.

  77. 77.

    See Lim Aeng Cheng Charles, “Legal Systems in Asean – Singapore: Chapter 6 – The Legal Profession” (2009) ASEAN Law Association Workshop Papers (10th General Assembly, Hanoi 2009) at 6, available at http://www.aseanlawassociation.org/papers/sing_chp6.pdf (last visited at 26 May 2014).

  78. 78.

    By contrast, no Irish barrister shall form a partnership with any other barrister. Under Clause 1.1 of the Code of Conduct of the Bar of Ireland, barristers have a “duty to be independent and free from any influence” and are therefore required to maintain a practice as a “sole trader”. Thus, barristers shall not have a room in a solicitor’s office, which implicitly prevents the creation of multi-disciplinary practices between barristers and solicitors as well. See Clause 4.14 of the Code of Conduct.

  79. 79.

    The Bar Act contains provisions relating to the activity of a law firm such as that only lawyers may form a lawyer’s association. See Articles 36 and 37 of the Bar Act.

  80. 80.

    As reported by the National Reporter of Slovenia.

  81. 81.

    Article 20 of the Lawyers’ Law.

  82. 82.

    A handy overview is provided online by the U.S. Chamber of Commerce (2014) U.S. Chamber small business toolkit. https://www.uschambersmallbusinessnation.com/toolkits/guide/P12_4210. Accessed 21 Dec 2014.

  83. 83.

    According to the National Report of Canada, one out of three lawyers has set up a “law corporation” in British Columbia.

  84. 84.

    Legal Profession Act (Cap. 161, Sing. Rev. Ed. 2009), Rule 19, Legal Profession (Group Practice) Rules (Revised Edition 2001).

  85. 85.

    This is due to the Solicitors (Professional Practice) Regulations 1988 which rule that a lawyer shall not agree to share his professional fees with any person other than a qualified solicitor or recognised foreign lawyer. See Regulation 3 of SI. No. 343/1988 Solicitors (Professional Practice) Regulations 1988.

  86. 86.

    Legal Profession Act (Cap. 161, Sing. Rev. Ed. 2009) Legal Profession (Limited Liability Law Partnership) Rules 2006, r. 5, and Legal Profession Act (Cap. 161, Sing. Rev. Ed. 2009) Rule 21, Legal Profession (Law Corporation) Rules (Sing. Rev. Ed. 2002), The Schedule para. 2. Furthermore, the Joint Law Venture (JV) and the Formal Law Alliance (FLA), were created in Singapore recently. The JLV is an incorporated partnership between a single entity out of a foreign law firm and a Singaporean law firm, and the FLA allows them to deliver legal services in a cooperative manner by retaining their distinct identities.

  87. 87.

    In the U.S., Rule 5.4, Professional Independence Of A Lawyer, provides:

    (a) A lawyer or law firm shall not share legal fees with a non-lawyer, except that: (1) an agreement by a lawyer with the lawyer’s firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer’s death, to the lawyer’s estate or to one or more specified persons; (2) a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may, pursuant to the provisions of Rule 1.17, pay to the estate or other representative of that lawyer the agreed-upon purchase price; (3) a lawyer or law firm may include non-lawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement; and (4) a lawyer may share court-awarded legal fees with a non-profit organization that employed, retained or recommended employment of the lawyer in the matter.

    (b) A lawyer shall not form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law.

    (c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.

    (d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if: (1) a non-lawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration; (2) a non-lawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation; or (3) a non-lawyer has the right to direct or control the professional judgment of a lawyer.

    ABA Centre for Professional Responsibility (2014) Rule 5.4: Professional Independence of a Lawyer. http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_5_4_professional_independence_of_a_lawyer.html. Accessed 21 Dec 2014.

  88. 88.

    The Law Society of Upper Canada has set up an Alternative Business Structure Working Group, which launched a consultation on the viability of ABS in February 2014. This would make Ontario one of the first states in North America to allow ABSs. For further information, see Law Society of Upper Canada (2014) ABS Working Group Report: Consultation proposal. http://www.lsuc.on.ca/with.aspx?id=1069. Accessed 21 Dec 2014.

  89. 89.

    This is for Québec: Article 1 du Règlement sur l’exercice de la profession d’avocat en société et en multidisciplinarité.

  90. 90.

    See Singapore Ministry of Trade and Industry, Report of the Working Group (Legal Services) (2002), para. 19 – 21, and Consultation Brief, Committee to Review the Regulatory Framework of the Legal Profession (1 June 2012), paras. 79 – 88.3. Recently the introduction of ABSs has been under consideration in Singapore and, in Germany, the introduction of MDPs.

  91. 91.

    See judgment of the High Court in Ljubljana from 3rd August 2011, case No. II Cp 128/2011.

  92. 92.

    Horvat B. (April 2009) Odškodninska odgovornost odvetnikov. 1 Odvetnik 43: 6–7.

  93. 93.

    Jakubecki, Andrzej, National Report Poland, 11 f.

  94. 94.

    Central Trust Co. v Rafuse, [1988] 1 SCR 147.

  95. 95.

    See Yeo Peng Hock Henry v. Pai Lily [2001] SGCA 72, [2001] 3 Sing.L.R. (R) 555.

  96. 96.

    Legal Profession Act (Cap. 161, Sing. Rev. Ed. 2009), s. 75(2), (11) and 75 (9)(e) and Second Schedule. See also Law Society of Singapore (2014b) Compensation fund. http://www.lawsociety.org.sg/forPublic/YoutheLawyer/CompensationFund.aspx. Accessed 21 Dec 2014.

  97. 97.

    Art. 242 para 1 of the Obligations Code.

  98. 98.

    National Report Finland, 7.

  99. 99.

    Section 69 of the Legal Profession Act of the Law Society of British Columbia (SBC 1998, c.9). Last revised in March 2014.

  100. 100.

    According to Clause 12 of the Code of Conduct of the Bar Council of Ireland, the charging of clients by barristers is based on work done and under the Code of Conduct of the Bar Council of Ireland. A barrister is entitled to take into account such factors as the complexity of the work, the length of time spent on the matter, the value of the claim (though this cannot be the sole basis), the time within which work was to be completed and other special factors not specified, in order to properly charge the client.

  101. 101.

    For instance, sections 70-75 of the Legal Profession Act of the Law Society of British Columbia; section s 23-25 of the Solicitors Act of the Law Society of Upper Canada (RSO 1990, c. s.15; last revised in 2013).

  102. 102.

    Law Society of Singapore (2014c) Cost dispute resolve. http://www.lawsociety.org.sg/forMembers/ResourceCentre/MembershipBenefits/Members%e2%80%99SupportSchemes/CostDisputeResolve.aspx. Accessed 21 Dec 2014.

  103. 103.

    See Law Technology News (2nd January 2013) Law firm billing survey 2012. National Law Journal. http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1356878074938&rss=rss_ltn&slreturn=20131108135528. Accessed 21 Dec 2014.

  104. 104.

    Sections 66-67 of the Legal Profession Act of the Law Society of British Columbia.

  105. 105.

    Legal Profession Act (Cap. 161, Sing. Rev. Ed. 2009), s. 107(1)(b), and Legal Profession Act (Cap. 161, Sing. Rev. Ed. 2009), Rule 1, Legal Profession (Professional Conduct) Rules (Sing. Rev. Ed. 2010), rule 37. In 2007, the Report of the Committee to Develop the Singapore Legal Sector recommended reforms to allow conditional fee agreements to enhance access to justice (paras. 3.16 – 3.18 and 3.22 – 3.27). See Ministry of Law of Singapore (2013a) Report of the committee to develop the Singapore legal sector: recommended reforms to allow conditional fee agreements to enhance access to justice. http://www.mlaw.gov.sg/content/dam/minlaw/corp/assets/documents/linkclicke1d7.pdf. Accessed 21 Dec 2014.

  106. 106.

    Such costs can be sent to the Taxing Master of the High Court for independent assessment in default of agreement between the parties The Taxing Master of the High Court is a legal officer of the Court and not a judge. The position is normally occupied by either a legal professional such as a barrister or a solicitor or a legal costs accountant.

  107. 107.

    Supreme Court of Judicature Act (Cap. 322, Sing. Rev. Ed. 2007), Rule 5, Rules of Court (Sing. Rev. Ed. 2006), Order 59, Costs.

  108. 108.

    Depending on the type of court procedure, the losing party is ordered to pay costs recognized by the court. This is the case, for instance, in civil or commercial litigation but not in non-litigious proceedings for dividing a joint ownership. See Law Society of Singapore (2014a) Taxation. http://www.lawsociety.org.sg/forPublic/YoutheLawyer/LegalCosts.aspx. Accessed 21 Dec 2014.

  109. 109.

    The most widespread source of fee shifting arises from contract clauses that specify a party may recover costs and fees incurred in an effort to enforce the contract. Both Federal and state law allow a successful litigant or claimant in a dispute to recover attorneys’ fees from the other in causes of action brought under specific theories of the law or in certain circumstances. The purposes for these statutes vary, and some overlap. Some statutes are intended by their drafters to encourage litigation of matters in the public interest, according to the “private attorney general” theory of litigation. See Note (1984) State attorney fee shifting statutes: are we quietly repealing the American rule? Law and Contemporary Problems 47: 3211.

  110. 110.

    The losing party is generally required to compensate the prevailing party for litigation costs. However, “litigation costs” do not include attorney fees. See Hattori T, Henderson DF (2000) Civil procedure in Japan. In: Hattori T; Henderson DF; Taniguchi Y; Reich PC; Miyake H (eds) Civil procedure in Japan, 2nd edn. Juris publishing, New York, § 2.04.

  111. 111.

    Sup. Court, Feb. 27, 1969, 23-2 Minshû 441. Thus, by contrast, the winning defendant has no means to recover attorney fees under this scheme.

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  1. Institute for the Law of the Legal Profession, Documentation Centre for the Law of the Legal Profession in Europe, Institute for Labour and Commercial Law, University of Cologne, Cologne, Germany

    Martin Henssler

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  1. Department of Civil Law, University of Vienna, Vienna, Wien, Austria

    Martin Schauer

  2. Department of European, International and Comparative Law, University of Vienna, Vienna, Wien, Austria

    Bea Verschraegen

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Henssler, M. (2017). The Organisation of Legal Professions. In: Schauer, M., Verschraegen, B. (eds) General Reports of the XIXth Congress of the International Academy of Comparative Law Rapports Généraux du XIXème Congrès de l'Académie Internationale de Droit Comparé. Ius Comparatum - Global Studies in Comparative Law(), vol 24. Springer, Dordrecht. https://doi.org/10.1007/978-94-024-1066-2_11

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