Measuring up

The French legal aid system, known as judicial assistance ('aide juridictionnelle'), was set up in 1851 but it wasn't until a 1972 Act that 'avocats' got paid for providing their services. The scheme was further amended in 1991 by a new Legal Aid Act ('Loi 91-647 relative à l'aide juridique') which provides the framework still in force today. The current system includes legal advice, assistance and representation before all French courts ('civil' and 'administrative' courts). Further to a December 1998 statute, pre-litigation negotiations are now also covered by legal aid. Since an Act passed on 10 December 2009, the scope of legal aid has been further extended to applications before the French constitutional court.

Four years ago, the French government instructed a senior avocat, Jean-Michel Darrois, to make recommendations on the future of the legal profession and a possible reform of legal aid. This led to a report made public on 8 April 2009. As a consequence a reform of legal aid in France is on its way.

Who benefits?

Currently, the applicant must be French or a member of the European Union, or a non-European citizen normally residing in France. Other nationals may apply for legal aid for political asylum applications or criminal litigation. An application must be filed with the bureau d'aide juridictionnelle or legal aid office. Each bureau is composed of the local taxman, a lawyer, a representative from the social services, a bailiff and an ordinary citizen. Just like the British system French legal aid is means and merits tested and it can be fully or partially granted or denied.

Regarding the merits of a litigation case the applicant must show that he has standing and that he has reasonable grounds to support or defend his case. The means test is regularly reviewed. For 2010 full legal aid may be granted if the household's revenue, based on the 2009 average monthly income, is below ‚¬915 a month. Partial legal aid will apply to incomes between ‚¬916 and ‚¬1,372.

If legal aid is denied on the grounds of non-compliance with the means or merits test the applicant may ask the bureau to review its decision and he has one month to do so from the moment the decision denying legal aid was notified.

Increasing demand

Over the last ten years the figures show a constant increase in the demand which until 2010 was matched by regular increases in the budget allocated to legal aid.

Between 2000 and 2005 the number of people eligible for legal aid went from 698,779 to 886,533; a 27 per cent increase. For the same period the legal aid budget increased from ‚¬188m to more than ‚¬300m; a 60 per cent increase. The 2011 budget is ‚¬321m.

In 2007, 900,000 people were granted legal aid at a total cost to the French state of ‚¬324m. In 2006, 905,000 people were granted legal aid, 457,000 in relation to civil litigation, 390,000 for criminal litigation and 58,000 to people seeking asylum or residence in France. Fifty-six per cent of those who benefitted from legal aid are male but the proportion of men to women is higher for men in connection with criminal litigation whereas women are more numerous for civil litigation.

The biggest increase is in relation to criminal litigation: the poor feel let down by society and tend to be drawn into crime and recent procedural changes have increased the need to instruct a lawyer (see below '“ law of 12 April 2011). It was said that after the forthcoming reform of criminal litigation in France (which should see the end of the 'juges d'instruction') the legal aid budget might double over a short period although recent figures from the French Senate itself show a 7.2 per cent reduction in the annual budget, indicating the government's willingness to cut down on public expense or find alternative ways of financing legal aid.

Unlike solicitors carrying out legal aid work who are paid on an hourly basis, French avocats are currently paid on the basis of unités de valeur. For instance, a divorce procedure is paid between 30 and 34 units, irrespective of the amount of work or difficulties involved. A unit is currently worth ‚¬22.50 which means that the average amount paid to an avocat doing legal aid work for dealing with a whole case from the issue of the claim to judgment being handed down to an avocat is ‚¬450!

How it works

It is quite similar to the British system save for one important point, i.e. the extent of the possible clawback from the French legal aid board. Concerning litigation, if the person who was granted total or partial legal aid wins and is awarded compensation such that he would not have been entitled to legal aid (not even partly) when he applied to the bureau, he can lose his legal aid entitlement and be required to pay his lawyer's fees.

However, if he loses the case he will usually be ordered to pay his opponents' costs save for his opponents' lawyer's fees unless the court orders otherwise. He may occasionally be ordered to pay a sum set by the court and in relation to the expenses he incurred but this is unusual in practice.

If the litigant was only granted partial legal aid and was the claimant to the litigation, the judge may order him to reimburse a part of the expenses (such as expert fees) incurred by the state on his behalf.

Whatever amount the litigant might have to pay to his lawyer or to the French state, it cannot be compared to the amount which can be clawed back in England when the legally aided party recovers substantial damages from his opponent. This is partly due to differences in the way the two systems work but also because of the much lower amount of avocats' fees.

Professional point of view

Doing legal aid work in France is a vocation. It is as time consuming as non-publicly funded work and does not bring in as much money. According to the Darrois commission's recommendations, less than a quarter of the total number of French avocats do two thirds of the legal work carried out there. Despite regular re-evaluations of the unité de valeur which currently forms the basis for the remuneration of lawyers, those doing legal aid work are concerned about maintaining a certain level of income as well as the quality of the services provided. We have not found any reliable data showing the average income brought in by an avocat doing mostly legal aid work as opposed to private work. This might be because the French legal profession is still divided into independent local bars and that there is a huge discrepancy between Paris and the provinces.

On 30 January 2007 the then justice minister pointed out: 'Access to justice is an essential right and'¦ legal aid is a priority for a democracy.' The need to reform legal aid to protect the rights of citizens as well as lawyers was discussed in addition to the new regime for 'legal protection insurance'. This came into law on 21 February 2007 and amended the former provisions of the French Insurance Code. People are now encouraged to take out a legal protection insurance policy, in which case they will no longer be entitled to legal aid '“ a good way for the French government to save money. The very spirit of legal aid, which forms part of the French welfare state, is disappearing given the financial constraints on the French state.

Recent and future reforms

Some of the Darrois report's recommendations concern the organisation of the legal profession: it advocates a possible merger of the avocat profession with the Court of Appeal avoués, a move towards a greater coherence of the local bars and the local legal aid boards, the possibility for avocats to set up some form of multi-disciplinary partnership with notaires and the replacement of the unité de valeur by the more favourable hourly charging rate as the basis for payment of avocats doing legal aid work (therefore copying the English system).

The Haut Conseil des Professions du Droit, the creation of which was suggested by the Darrois report and due to represent the legal professions' interests (which could be compared to the Legal Services Board), has now been set up and started work at the beginning of 2011. Following the Darrois report the government introduced a bill into parliament on 17 March 2010 to reform the legal profession which led to an increase in the powers of the notaires in March 2011.

Regarding legal aid, the government is now considering the introduction of a nominal fee of about ‚¬9 for any person granted legal aid. In the government's defence we may say that in view of the current difficult economic context, of the fact that more and more people seek the resolution of their disputes in court, that the number of applicants to criminal legal aid has already soared and will continue doing so with the forthcoming reform of criminal procedure, the government wants to ascertain that people are willing to take a (small) financial risk. But this proposition has been criticised by litigants and lawyers alike, the former seeing in the possible reform an end to access to justice and the latter feeling that they might end up paying the ‚¬9 on behalf of their legally aided clients without having a real chance of ever recovering the money from them.

The law passed by the French legislative power on 12 April 2011 making it mandatory for someone in custody to be assisted by an avocat for every interrogation has infuriated the legal profession. As well as the conditions in which they will be called which may not serve their clients' best interests, avocats have criticised the financial aspect of the reform; according to the legal profession, an avocat will be paid ‚¬12.50 an hour, but, according to the government, this figure goes up to ‚¬100 '“ a 'slight' discrepancy upon which it is currently difficult to comment as this statute only came into force a few weeks ago.

Whatever happens, access to justice should remain a priority in a democracy but this also implies respecting the legal profession who serves it.