Comments from the delegations on the draft recommendations on continuing legal education - Standing committee meeting on 28 June 2002 (Bratislava)

Austria:

Marcella Prunbauer-Glaser pointed out that the Austrian delegation would clearly oppose any paper, any wording in a paper that would imply to be binding. However, she acknowledged that one might discuss such a paper if it was only about “suggestions” which could be followed by the Bars. She emphasised that the delegation clearly does not want to have any binding rules on continuing training as – according to the view of the Austrian Bar - such rules are already implied in the ethical duties of lawyers.

 The president emphasised that the draft presented to the Standing committee is consisting of recommendations and is not intended to be a binding text.

Germany:

As to the current situation in Germany, Hans-Jürgen Hellwig indicated that the German Lawyers’ act provides no specific professional obligation for lawyers with regard to continuing legal education except for specialised lawyers (Fachanwälte). However, he noted that such an obligation would exist indirectly through civil liability which does concern every lawyer.

Hans-Jürgen Hellwig pointed out that if something would be done in the area of continuing legal education, it would be outside the competency of the lawyers’ parliamentary body (Satzungsversammlung) in Germany, but would fall within the competency of the legislator.

Hans-Jürgen Hellwig indicated that the organisations in Germany have to date always been against continuing legal education for various different reasons. One reason is that it would weaken the case of the lawyer being subject to the damage suit of the client if there is such an obligation on continuing training. Another reason is that it would be extremely difficult for the German Bar to police the fulfilment of this obligation due to the high number of lawyers. He mentioned that there are already gaps/failures in the policing of the ~20.000 Fachanwälte. He further raised the question whether it could lead to a civil liability consequence for the Bars in case of negligent cases against lawyers if there is no proper policing.

With regard to the disciplinary consequences, he indicated that the specialised lawyers in Germany can loose the Fachanwalt title if they do not fulfil their continuing legal education obligations, however they would still be able to practice as a lawyer. He noted that the loss of the Bar-membership as a consequence for not having complied with the continuing legal education obligations would raise a number of severe constitutional issues. He raised the question whether such a consequence would be adequate in the case of a lawyer who did not go through the formal continuing education process (attending seminars etc), but who is reading the Court cases/is regularly studying all the legal writings in the area he is working in and has no record of any negligence cases.

Hans-Jürgen Hellwig indicated that there is a need for continuing legal education but it has to be questioned whether any regulation in that area should include the disciplinary consequences?

Hans-Jürgen Hellwig inquired about the time schedule for this proposal as this matter would require an in-depth discussion within the German delegation (in Federal Bar and the German Bar Association). He indicated that such a matter could not be achieved within this year.

 The president indicated that there is no fixed time schedule at the moment. He stressed that the CCBE is aiming for recommendations in that area, but not for any binding obligations.

1 Check Republic:

Karel Cermak indicated that in some observer countries (candidate countries to become members of the EU), like in the Czech Republic, the issue of continuing training is one of consumer protection. He noted that the issue is also of importance in connection with the European legislation those countries need to comply with. He indicated that for judges a compulsory scheme on continuing training was adopted. He indicated that the introduction of such a scheme on continuing would need a statutory basis. Karel Cermak noted that a proposal providing the lawyer’s duty for continuing training has been presented to the Parliament this year but was rejected by the Parliament. The Parliament based its rejection on the view that the lawyer’s profession is a liberal profession and that a lawyer could not be forced to subscribe to such a scheme. He indicated that it would be very difficult presently to address the Parliament once more on that particular question without the support of other organisations, as for example the CCBE. He emphasised that the Bar would like to introduce such a scheme taken into account that the Czech Republic will need to adopt acquis communautaire.

The Netherlands:

Peter von Smidt auf Altenstadt indicated that in the Netherlands an elaborated system on compulsory continuing legal education is in place since about 10 years. He raised the question as to why a maximum of credits is proposed in the Recommendations whereas the Recommendation is said to be one of minimum standards. He indicated that the Dutch system provides for 16 credits and that this would clash with the 20 credits mentioned in the draft recommendations. As regards the disciplinary system, he indicated that a control system is well in place in the Netherlands an is therefore manageable. He further noted that it would be unthinkable that a lawyer would be radiated from the role just for not having fulfilled the obligations on continuing training. He indicated that nearly always lawyers who not fulfil the obligations on continuing training are not fulfilling other obligations either. He indicated that in general a sort of package of those obligations which have not been fulfilled by the lawyer in question would be produced to the disciplinary body.

Greece:

Dimitris Hadjimichalis indicated that in Greece a special situation exists due to the high number of lawyers (32.000 in Greece; about 17.000 in Athens) and that it would be a very difficult task to train all these people. He acknowledges that such a system would be beneficial to the consumers. In order to put a compulsory system into place, Dimitris Hadjimichalis reported that a specific legislation would be needed. He also noted that there are no specialised lawyers in Greece like in Germany. Dimitris Hadjimichalis noted that the Bar organises seminars but that the attendance is on voluntary basis.

UK:

Christian Wisskirchen indicated that the UK delegation will respond in detail in written form to the proposal in due time. He informed those present that the UK delegation taken into account that it is a very difficult issue preferred to do some practical work rather than enforcing any minimum standards. He further noted that the paper would need to be more succinctly argued (example: there is little explanation as to why certain methods of implementation have been chosen).

Finnland:

Kari Lautjärvi indicated that in Finland a new system on continuing training has started not long ago with the co-operation of the university. He noted that the Bar has a contract with the university and that it is “buying” programmes from the university.

Norway:

2 Janne Kristiansen indicated that a CPD scheme exists already since about 9 years. In general, lawyers are complying with the obligations on continuing training. She noted that in general, if a lawyer does not comply with the obligations on continuing training, he usually does not comply with other provisions as well. She pointed out that if a lawyer does not comply with the continuing legal education obligations, he/she would have to pay a fine.

Italy:

Luigi Scasselati Sforzolini indique que la situation en Italie est un peu comme en Allemagne. Il note que le Conseil national des Barreaux a récemment proposé aux barreaux une réglementation concernant la formation permanente obligatore. Il informe que le Conseil ensuite s’est rendu compte que la seule façon pour résoudre ce question sera la loi à cause des problèmes des sanctions (exemple : la radiation du rôle des confrères). Il note qu ‘actuellement il y a des efforts pour un projet de loi en la matière (également en vue de la protection des consommateurs).

France:

Bernard Vatier a evoqué dans ce contexte qu’on pourrait suggérer aux barreaux nationaux de mettre en place des systèmes de formation continue pour ceux qui n’ont pas des systèmes de formation continue. Plutôt que de prévoir un texte qui imposerait aux avocats une formation, il indique qu’on pourrait faire un texte qui suggère aux organisations professionnelles de mettre en place une formation continue pour les avocats. Il note que les barreaux nationaux sont dépourvus de la possibilité d’imposer une formation continue, mais qu’ils ne peuvent que suggérer. Il note que le travail qui a été fait pourrait servir de proposition pour les barreaux nationaux de mettre en place une formation continue pour les barreaux qui n’ont pas de formation continue tout en laissant une grande liberté aux barreaux d’organiser une formation continue. Il souligne l’importance de cette question en vue de vieiller à la défense du consommateur.

Pour ce qui concerne l’expérience française, il note qu’il a été mise en place pour le barreau de Paris un mécanisme de formation incitatif. Ce mécamisme est basé sur le suivant: des avocats obtenaient des crédits en participant à des séminaires/conférences. Si les avocats réunissaient un certain nombre de crédits, le montant de la prime d’assurance était réduit. Au lieu de payer une amende, on réduissait le montant de la prime d’assurance en partant du principe que la formation continue réduissait le risque de mise en cause de la responsabilité civile professionnelle.

Spain:

José Maria Davos Fernandez note qu’en Espagne les discussions se concentrent actuellement encore sur la formation initiale. Pour le moment il n’y a pas de possiblilité d’introduire un tel système de formation continue.

Helge Jakob Kolrud (2 nd vice-president):

He pointed out that there is a need for continuing education as not every lawyer will ideally follow-up any developments (Court practice, new legislation etc.) out of his own motivation.

He pointed out that a recommendation from the CCBE cannot be but a recommendation and therefore would not raise any problems of constitutionality. He indicated that policing was no problem at all in Norway.

Luxembourg:

Louis Schiltz indique que la situation au Luxembourg a évolué en la matière. Il note que’à la fin de l’année passée les autorités ordinales du Luxembourg ont introduit un système de formation continue.

3 Cette reglémentation a été attaqué ensuite par un bon nombre d’avocats devant les juridictions administratives avec le résultat que les autorités ordinales se sont vue refuser la constitutionnalité du système mis en place. Il note qu’actuellement le système d’une formation continue n’extiste plus et qu’il faudrait donc suivre l’évolution de cette question dans le futur.

Ireland:

Harold Whelehan reported that in Ireland the Bar and the Law Society provide a wide range of seminars since some years. He indicated that there is no obligation to attend those seminars. He added that the seminars are well attended but only attended by people who already have the highest competence in the area. It is the people who would require the knowledge who do not attend the seminars. He further indicated that it would be very difficult to introduce any compulsory scheme in Ireland. However, he acknowledged that there is a need for such a scheme and that a guidance for the Bars and Law Societies would be a step forward.

Germany:

Hans-Jürgen Hellwig raised the question why one should not give to those who do not have a system at the moment, the possibility to opt not only for the CCBE suggested system, but for any other system prevailing in any of the other countries. He indicated that it seems that the systems have certain features in common and certain not (such as disciplinary features of policing features depending on the structure of the Bar organisation and the number of lawyers in the various countries). There are various systems which seem to very suitable given the existing particularities in the various countries. One CCBE model would run the risk that is a combination of various models and therefore combines features for which there is no country there. He raised the question whether one should not approach the issue by finding out what systems there are in the various countries including in particular the following points: (-) what areas of law should be covered, (-) number of lawyers in the Bars, (-) the relationship between Bar personnel and the lawyer within that Bar and (-) what are the consequences resulting of not complying with the system (reduction of the insurance premium, fines etc.). This information could be provided to those countries which do not have a system in place giving them possibility to select one of those systems according to their own particularities. There should be no limitation to one model gathering various elements of the systems prevailing but one should give to those countries who have no such system in place the choice to select one model which is most suitable to them.

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