Developments and trend in the regulation of the attorney's profession with the emphasis on Slovenia and Germany
This project assesses the significance of the professional attorneys’ services sector in the EU, with the emphasis on SLO and German legal systems. Comparative legal trends show the increase in the number of numerus clausus forms in which the law can be practised. Especially in regard to the latest decision by the German Federal Constitutional court 2- BvR156217. Such arrangements allow the attorneys abroad (the United Kingdom) to associate in various forms of interdisciplinary associations (accountants, auditors, bankers…). The answer to the question of the extent to which the attorneys’ profession should be regulated depends largely on the role that we ascribe to an attorney in the modern society. The attorneys’ profession is an important institution with great social impact which is important for the efficiency and functioning of the legal system. On this basis, the argument can be derived that the state has a legitimate interest in the regulation of the attorneys’ profession. An attorney's task is to provide legal advice and to represent clients in court. This task is becoming increasingly important due to the hyperinflation of legal acts and the more and more detailed regulation of relationships between natural and legal persons. The client depends on the knowledge and experience of the attorney. Even the advocates of deregulation acknowledge that this seems to be the strongest argument of advocates of the regulation of the attorneys’ profession. The problem lies in the information asymmetry. This means that the state must ensure that attorneys are qualified to perform their social function. Because of the asymmetry of information between the client and the attorney, the free market is inadequate to meet this challenge.
The comparative legal analysis demonstrates that the tendencies in the deregulation of the attorneys’ profession have dissipated because of the negative effects and dimensions of the financial crisis that hit the EU Member States in 2008. Even stronger is the following argument of advocates of the regulation that the price of legal services is not the only criterion that determines the quality and accessibility of legal services. Thus, the view has been gaining popularity that the so-called "mere economic approach" does not satisfy the needs of the attorneys’ profession, in which a confidential relationship is established between the client and the attorney. In this respect, the Attorneys Act of the RS lags behind comparable regulations, which is inadequate, since SLO is not separate from the market of legal services of the EU. With the increasingly intensive integration of the internal market, the fact must be taken into account that SLO will attract more foreign subsidiaries of commercial law firms and individual attorneys who will compete with domestic attorneys. In SLO, it would be necessary to clearly define the attorneys’ profession on the statutory level and to determine in more specific terms what is covered by legal services, also in terms of the definition of the incompatibility of the attorneys’ profession.
The project will focus on some specific topics that will be analysed in both countries:
- Definition of activities that are incompatible with the pursuit of the attorneys’ profession. The starting point will be the definition of the standard of attorneys' professional diligence. The independence and integrity of an attorney and the pursuit of the interests of his or her mandates may be impeded in cases where another activity has the nature of the gainful economic activity. A conflict of interest may occur especially in cases where the attorney can use the acquired information in the pursuit of a gainful activity or profession.
- Restrictions on advertising: The attorneys’ profession has been usually subject to strict regulation, providing for either a total ban on advertising or restrictions, both on the manner and content.
- Restrictions on organisational form and multidisciplinary partnerships: A change of the ownership rules could damage the independence of attorneys.
- Attorney's fiduciary duty to clients: in this context, it is important to address the issue of managing the client's assets in relation to an attorney and to define the extent of the clients' assets needed for representation and payments for a client that are arising out of legal relationships, in which the client is represented by an attorney or a law firm, which is a legal person, and that can be deposited in a fiduciary account.
- Liability insurance for attorneys: definition of minimum standards for liability insurance.
- Permanent education: there are aspirations for lifelong learning within the attorneys’ profession because only an effective life-long learning system would allow an attorney to provide high-quality legal advice throughout his life.
- European attorney: the analysis of harmonisation measures (implementation of the EU directives) will be carried out in both countries in the field of cross-border movement of attorneys and legal services, and proposals will be made regarding the current appropriateness of regulations in this field.
- Technological and process innovation: new information technologies and their influence on the traditional role of providing legal services will be analysed. Bilateral cooperation would enable a thorough assessment, comparison and scientific evaluation of the new legal solutions and good practices for the promotion of the legal position and defining the modern role of advocacy. Each faculty will organise a research conference one a year where participants will be able to inform each other about the results of their work. The researchers will publish their research in the form of articles and in a monograph that will summarise the results of the project.
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