NOTAIRES IN FRANCE
An unassailable profession. Or are they ?
AN ARTICLE BY
PROF. GISELA SHAW
[Please
click on
www.giselashaw.com
for Prof. Shaw's website]
Author Posting.
© Taylor & Francis, 2007. This is the author's version
of the work. It is posted here by permission of Taylor
& Francis for personal use, not for redistribution. The
definitive version was published in International Journal
of the Legal Profession, Volume 13 Issue 3, November 2006.
doi:10.1080/09695950701192228
(http://dx.doi.org/10.1080/09695950701192228)
The
Challenge
Professions
in the Western World generally have traditionally thrived
on the privilege of some degree of freedom from competition
and regulatory autonomy within certain defined parts of the
professional services market, having persuaded their
government that reserved areas of activity and professional
independence are essential to a well-functioning society.
Sociologists of the professions have offered varying
explanations of professions’ origin, role, impact,
and future. Following early emphasis by scholars on the
civilising effect of professions’ high ethical
standards of self-regulation (Durkheim, 1992; Parsons,
1954), the notion of market domination based on
exclusionary strategies vis-à-vis other professional groups
became a prime focus of sociologists’ attention from
the 1960s (Larson, 1977; Abel and Lewis, 1988). From the
1970s, a number of American and British sociologists, the
main interlocutors in the debate, became aware of their
Anglo-American bias. A new and more sophisticated approach
emerged which took account of the role of history in the
evolution and nature of professions, of their relations
with their respective states, as well as of issues of
social and political status and power. This for the first
time opened up perspectives that could fruitfully be
applied to professions in continental Europe. (Johnson,
1972; Rueschemeyer, 1973; Geison, 1984; Halliday, 1987;
Siegrist, 1988; Abel, 1989; Torstendahl & Burrage,
1990; Burrage & Torstendahl, 1990; McClelland, 1991;
Jarausch, 1990; Burrage, 1996; Karpik, 1995; Malatesta,
1995; Halliday & Karpik, 1997).
The profession of notary, although the oldest and arguably
most venerable of the legal professions in Europe as well
as of continuing importance within Continental European
civil law systems, has featured only marginally, if at all,
in any of these debates. Exceptions are Ezra
Suleiman’s remarkable book on notaires
in
France (1987), as well as a few shorter studies of the
profession in Germany (Shaw, 1997; 2003a; 2003b; 2004;
2006) , Italy (Santoro, 1995), England and Wales (Shaw,
2000; forthc.), and Central Europe (Shaw, 2004). Suleiman
focuses on the historically grown and firmly established
intertwining of the profession’s corporate interests
with those of the French state and of a number of French
institutions. He interprets the French notariat’s
resilience and ability to survive and even thrive on
serious crises as a result of notaires’
fundamentally
ambiguous status as providers of both public and private
legal services: as public servants, they enjoy government
protection and a statutory monopoly; as members of a
liberal profession they are free, in fact encouraged by
their government, to engage in profit-making activities in
the open market. This dual position, Suleiman argues,
provides them with wide scope for political negotiation and
the option to play either card as the need arises. Although
most notariats in civil law countries to some degree share
this dual nature, the tension between the
profession’s two functions and its effect on its
socio-political and economic standing are far more
pronounced in France than elsewhere. Notaries in France
enjoy a uniquely close relationship with the state
(represented by the Ministry of Justice), an exceptionally
high degree of professional autonomy, an uncommonly wide
range of privileges, and the built-in potential for
enviable levels of prosperity. (For details see Moreau,
1989; Moreau, 1999)
Social and political status and the striving for
self-regulation have been a major factor in determining the
notariat’s political strategies. Economic prosperity,
on the other hand, has merely been a highly welcome
by-product, not the result of a corporate strategy to
expand the profession’s share of the legal services
market. On the contrary, the last fifty years have seen a
process of contraction and concentration on reserved
activities, particularly on the property market, leaving
areas of activity in the open market into which they might
have expanded to their competitors without a struggle.
This approach is not dissimilar to that of solicitors in
England prior to the abolition of their conveyancing
monopoly. It was only the impact of deregulation under
Margaret Thatcher’s government which forced them to
abandon their preoccupation with status and honour and
operate in the open market under a strengthened state and
market control (Burrage, 1996), a process which is now
being rounded off in the wake of the Clementi report of
2002. At the time Richard Abel (1989), from a background of
close familiarity with developments in the American legal
services market, accurately projected as likely next steps:
increasing concentration and mergers, elimination of
smaller units, loss of traditional markets, greater
reliance on and competition for qualified staff,
multidisciplinary partnerships, specialisation, efforts to
stimulate demand, shift towards direct employment, loss of
professional unity and autonomy and, at worst, loss of
identity. Abel also sounded a note of caution regarding the
risks involved in giving market forces free reign and
losing sight of the fundamentally normative quality of
legal work. Almost a decade later, Michael Burrage (1996)
broadly welcomed these developments as the transformation
of a ‘gentlemen’s profession’ into a
‘public profession’, a move towards greater
market-orientation and competitiveness, more openness and
accountability to the public, and freedom to adopt a more
independent and even adversarial posture vis-à-vis the
state.
The fate of solicitors following the loss of their
conveyancing monopoly may seem worlds away from the
situation of notaires
in
France, where no government has seriously considered
removing the barriers shielding them from competition by
other domestic professions, and where enlightened
self-interest on both sides continues to provide a powerful
incentive to reach
mutually acceptable
solutions to any problems arising, making the position of
French notaires
appear
almost unassailable.
However,
in recent years one essential premise has changed: the fate
of the notarial profession has ceased to be determined
purely within a national framework. Economic globalisation
and the liberalising initiatives of the European Commission
have introduced a new factor into the equation, moving the
problem, or at least a crucial aspect of it, to a higher
and previously unknown level. Two major directives, the
Directive on the Recognition of Professional Qualifications
(Directive 2005/36/EC adopted 7 September 2005) and the
Directive on Services in the Internal Market (expected to
come into effect by the end of 2006), both aiming to open
the services market in Europe, have been looming over the
profession, threatening to wipe out any protection from
competition. By a hair’s breadth notaries, as opposed
to other lawyers, ultimately escaped application of the
Professional Qualifications Directive, as, after protracted
tough negotiations, professions connected, even
occasionally, with the exercise of official authority, were
excluded from its scope. As for the Services Directive, it
now looks as if, once again notaries may be able to breathe
a sigh of relief as specific activities undertaken by them
on behalf of national governments are likely to be
excluded. However, even if French notaires
are not
directly affected by these reforms in their core work, the
impact on any of their operations in the open market is
likely to be considerable, as the world around this tiny
profession is swiftly moving into a new era of intensified
competition at all levels. In addition, should the housing
market take a downturn or should the French government ever
decide to restructure or, indeed, abolish the notarial
monopoly in this area, the profession of notary would be at
serious risk of suffering the fate of other small groups of
lawyers in the past who were easily absorbed by either
advocate or accountant firms.
For the first time in the profession’s history,
therefore, old corporatist ties and intertwinings of
interests of administration, government, banks and
profession can no longer guarantee its continued survival
and prosperity. Competitors at home and abroad are getting
ready to pounce, and fractures within the profession itself
are beginning to appear, with some groups (still a
minority) embracing with enthusiasm the prospect of a freer
market and calling for a more pragmatic approach, while
others (still the majority) are unwilling or unable or both
to consider the possibility of radical change and insisting
on the immutability of the status
quo. Any
assessment of the profession’s actual and possible
responses to this novel challenge requires insight into its
current situation and workings. This is what this paper
attempts to provide. It does so by focusing on selected key
features of the profession today, and analysing them in the
light of concepts from the sociology of the professions
sketched out above, most particularly the role of history,
the relationship between profession and state, and the
tension between professional aspirations for
socio-political status and the need to face up to
competition in the open market. As up-to-date facts and
figures on notaires
are not
easily found and sociological analyses of the French
notariat do not exist (apart from Suleiman’s very
specifically focused study of 1987), the factual base of my
argument relies mainly on information available from the
profession’s journals and websites, as well as a
number of personal semi-structured and informal interviews
with professional leaders conducted since autumn 2004.
The journals in question are: Conseil supérieur du
Notariat, Notaires.
Vie professionnelle;
Assemblée de Liaison des notaires de France,
LejournAL
(prior
to 2004: Liaison);
Mouvement Jeune notariat, Mouvement
Jeune notariat; also
associated with Mouvement Jeune notariat:
Revue
Pompadour Notariat 2000. Revue indépendante
d’informations et
d’opinions. The
reports of the annual conferences of the Assemblée de
Liaison des notaires de France provide a great deal of
carefully researched information on specific topics. The
same is true of the reports of the annual conferences of
the Mouvement Jeune notariat, which are available on the
internet (www.mjn.fr).
Specific references will only be referred to in
exceptional cases to avoid an overload of notes.
I am grateful to those who have been willing to give up
their time for interviews: three members of the executive
of the Conseil supérieur du Notariat, among them a recent
President who had also recently been President of the
European Union of Notariats (CNUE); the President of the
Mouvement Jeune notariat as well as a number of the
group’s most active members, including
notaires
assistants and
notaires
stagiaires; the
Director General of the CRIDON de Paris; key
representatives of the DG Competition and DG Internal
Market of the European Commission in Brussels; the Head of
the CNUE and one of her colleagues in Brussels. I also want
to express my appreciation to the Head of the Documentation
and Archival services at the Conseil supérieur who has
greatly assisted my search for information.
Profession and state
Having been abolished in 1791 as an institution of the
hated ancien
régime, the
French notariat was revived in 1803 in a new guise by
Napoleon, as part of his ambition to ensure political and
economic stability. Anciens
notaires were
replaced by notaires
publics - the
model for (and often envy of) civil law notaries in the
rest of continental Europe. A major political victory was
won by the French profession when in 1816 their former
status as officiers
ministériels and the
accompanying droit
de présentation (essentially
the right to choose their own successor and to treat their
office as part of their personal assets) was reintroduced
by the backdoor, a restaurational measure that sits
uncomfortably with the otherwise modernised professional
profile and has remained a bone of contention ever since.
Notaries are defined as public officers called upon to
receive all acts and contracts to which parties have to or
wish to give the character of authenticity. Their function
is that of impartial arbiter, counsellor of individuals,
businesses and collectives, and guarantor of the morality
and legal security of contractual relationships - a
corner-stone of any civil law system. As members of a
liberal profession they are in control of their own
finances, practice and staff, as well as engaging in
activities in the open market.
As Suleiman’s masterful study shows, the relationship
between the notarial corporation and the French state has
been a close, but multifaceted one, a mixture of hostility
and complicity. Generally speaking, the Ministry of Justice
which legally exercises tutelle
over the
profession has allowed its relationship with the profession
to acquire a symbiotic character and to act in a generally
protective role, as its actual control over the profession
is limited to confirming notaires
to the
office they have purchased. No annual meeting of the
profession passes without the Minister of Justice and
Keeper of the Seals being reminded by professional leaders
of his duty to promote the profession’s well-being,
and the Minister reassuring them of his faith in their
important contribution to society and his unwavering
continued support. Regular meetings in the Ministry are set
up by the leadership, often with the aim of suggesting and
preparing the ground for new legislation they would like to
be brought in. The Ministry of Justice’s support is
needed particularly vis-à-vis the Ministry of Finance that
keeps a close eye on and has to approve any changes in the
notarial fees system, the tarif.
The state benefits in a number of very tangible ways from
the activity of notaires.
Firstly, notaires
calculate
and collect state taxes and legal charges (now also
including VAT) for each and every transaction performed.
The profession views this arrangement with mixed feelings:
on the one hand, it represents an unpaid additional
responsibility and, more importantly in today’s
climate, a source of suspicion on the part of the public at
large which tends to assume that the sums collected by
the notaires
all flow
into their own pockets (in fact, only around 20 per cent
do); on the other hand, it can and has come in extremely
handy as an invaluable bargaining chip in negotiations with
the government on other issues. Secondly, the state also
benefits from the institution of the Caisse
des Dépôts et Consignations, a
public institution created at the initiative of a member of
the profession, Duclos Dufresnoy, through which every
notarial office’s income and expenditure has to be
channelled, with the exception of rural areas where
the Caisse
de Crédit Agricole may also
be used. Capital accumulated by the former is used for
state-directed projects of public interest, while capital
flowing into the latter serves to support agriculture.
Professional organisation
Representing the French notariat’s interests
vis-à-vis the government, the public, and, increasingly,
the international community is the task of its national
organisation, the Conseil
supérieur national du Notariat (CSN),
established by statute in 1945 - suprisingly late, given
the country’s otherwise essentially centralised
structure, but still relatively early in the light of the
fact that French avocats
remained
without a national body to represent the totality of the
profession’s membership until appropriate legislation
was passed in 1990. Funded entirely by the profession
itself, the large and bureaucratic National Council enjoys
remarkable economic and political clout, appropriately
reflected in its recent move from modest rented premises in
the 8th arrondissement
to its
own large purpose-built edifice in the 7th
arrondissement,
covering 6000 square metres and presented to the profession
as a long-overdue symbol of its national standing, as well
as a prudent collective investment in its future, in spite
of occasional grumbles from the grass-roots. Considerable
efforts have gone into strengthening the CSN’s
position, a strategy much helped by the membership’s
awareness of real threats to the profession both from
within and from without, and an acceptance of the need to
improve their services to society and strengthen the
profession’s solidarity.
33 regional councils have, since 1945, been charged with
functions relating to representation, training and
communication, a brief to which have recently been added
disciplinary powers, which has deprived the 92 departmental
(or, in some instances, interdepartmental) chambers of what
has traditionally been their core function. Both of these
institutional layers have old historical roots. This is
particularly true of the exclusive and powerful Chambre des
Notaires de Paris which combines interdepartmental and
regional responsibilities. Its Parisian headquarters’
façade proudly proclaims a thousand-year history and
long-standing closeness to government and courts -
closeness, that is, in all senses, including geography. In
this venerable and proud institution, concern with social
status and political power is tangibly in evidence, as is
its claim to be the (historically legitimated)
representative of the profession at large. Along with
status has come economic strength. In 2005, the
Chamber’s membership of 500 (5.9% of the
country’s total) had 220 offices (7.6% of the total),
employed 5000 staff (10% of the total) and had an annual
turnover of 600 mill. euro (10.3% of the country’s
total). Compared to their rivals, the avocats,
almost
40% of whom (2002: 15,541 of a total of 39,454) are
concentrated in Paris, the notarial group in Paris looks
modest enough, but this is due to the formula by which the
Ministry of Justice creates new offices and does not
adequately reflect the economic and political clout of
Parisian notaires.
Although the Chambre des Notaires de Paris initially found
it difficult to accept the creation of a national body, the
two organisations have since succeeded in gradually
settling into a mutually beneficial relationship, with the
Paris notaries being granted special privileges and
considerable say in national decision-making, and the
National Council benefiting from the Parisians’
centuries-old experience and political influence.
A highly original professional organisation, the Assemblée
de Liaison des notaires de France, provides a direct
channel of both ascending and descending communication, a
bridge, between the national body and the general
membership. A voluntary body without statutory base, it was
initiated in 1950 by the 49th annual congress of French
notaries in La Baule as the profession’s
‘parliament’, a forum for elected grass-roots
representatives to debate and formulate proposals to be
submitted to the National Council, as well as a platform
for direct communication between the council and
grass-roots members. All key figures of the notarial
establishment are invited to the annual two-and-a-half day
themed conference in early December at the Palais des
Congrès in Paris: members of the CSN, presidents of
departmental chambers and regional councils, and delegates
of notarial trade unions and professional associations. One
session is specially set aside for the CSN’s
executive committee to respond to questions put to them
from the floor (admittedly, some of these having been
subjected to prior screening). On the last day, a series of
proposals are voted upon and, once passed, transmitted to
the CSN for discussion and decision by one of its standing
committees, half of whose membership are, in fact, elected
representatives of the Assemblée de Liaison. A conference
report is published every year, complementing the
Assemblée’s monthly
journal Le
journAL.
The other voluntary organisation of note is the Mouvement
Jeune notariat (MJN), a loosely organised group founded in
1960 by Louis Reillier (1913-99), an avant-garde and
idealistic notaire
in
Pompadour, Corrèze, who was determined to modernise and
reinvigorate the profession both economically and socially.
This group, which still adheres to its self-defined brief
to be inclusive, open and future-orientated
(un
notariat sans frontières), has
maintained a refreshingly critical stance and provided a
fertile breeding ground for novel ideas, many of which have
been skilfully adopted by the CSN once they had proved
successful. The same is true of the deliberately
unconventional and occasionally mildly provocative journal
entitled Notariat2000.
Revue indépendante d’informations et
d’opinions, also
founded by Louis Reillier. The group has a publicly
accessible website, and organises annual themed congresses
which are increasingly held abroad (including China in
2005). (see
www.mjn.fr) Comprehensive
published reports consist of carefully orchestrated
contributions intended to stimulate debate and move the
profession forward. A deliberately provocative step which
raised a lot of hackles with the National Council has been
the election in 2004 of a President from a country other
than France, the Belgian notary Olivier Jamar.
A prime example of a successful MJN initiative has been the
annual day at the Palais des Congrès at the Porte Maillot
in Paris, where notaires
gather
from all over the country to offer free advice to anyone
who wishes to come along - a project the CSN initially
refused to be associated with, let alone support, and which
has now become one of its major marketing tools. Similarly,
the MJN provided the ideas for the so-called Université du
Notariat,
an
annual week of lectures, seminars and discussions organised
near Paris - now a highlight in the professional calendar
of events. Finally, an annual cycling tournament of
notaries projects the image of a profession that is young,
energetic and forward-looking. This group and its
publications represent a kind of barometer of the
progressive and liberal forces within the profession.
Image issues
Concern with the profession’s traditional public
image - somewhat dusty and archaic, patriarchal, elderly,
focused on self-enrichment (and, which goes without saying,
white) - is a relatively recent but now increasingly
pressing item on the National Council’s agenda, as
consumers’ views are recognised as an important
factor in the profession’s justification of its role
in society. Considerable efforts have been made by the CSN
to project a more positive image of a profession keen to
meet the needs of individuals, families and companies, and
uniquely placed to do so on account of a long established
basis of trust and the legal security provided by its
authentic acts. Occasional highly critical media reports
including allegations of greed and financial irregularities
have made it hard to get their message across.[1]
Purely statistically, the average age of French notaries
(49 in 2005), although gradually going down, is relatively
high compared to for instance that of their main
competitors, the avocats
(44.6
(men)/ 38.9 (women) in 2002). In time, this problem will be
diffused, as by 2014, 35 per cent of those practising today
(members of the post-war baby boom generation) will have
retired - a unique opportunity for rejuvenation from the
reservoir of some 4,000 notaires
assistants waiting
for appointments.
Three major obstacles stand in the way of a smooth
hand-over to a younger generation: firstly, the rampant
inflation in the price of offices demanded by retiring
members; secondly, the reluctance of existing notarial
firms to appoint additional partners - an option open to
French notarial firms (as opposed to their colleagues in
other countries), as the numerus
clausus applies
only to offices, not to the notaries working within them;
and thirdly, the profession leadership’s reluctance
to push for the creation of additional offices. The
national body has adopted various strategies in order to
ease the situation. It is running a campaign to remind
retiring notaires
that the
notarial office is not primarily a commercial enterprise
and that prices demanded for their offices should be kept
at more modest levels - an undertaking which is unlikely to
bear much fruit. The CSN is also considering forcing
notarial firms to take on additional notaires
associés if their
annual income or number of acts exceed a certain maximum,
but how precisely this can be done has yet to be revealed.
The need to accelerate the process of appointing
notaires
has been
formally acknowledged by the Ministry of Justice and the
CSN, and will be acted upon by a reduction of the waiting
period from currently 3 months to 5 weeks. And, finally, an
undertaking has been given that the overall number of
offices is to be steadily increased by about 2000 over the
next 10 years to reach a total of 10,000.
The profession’s predominantly male profile
represents another potential image problem. Women were only
legally admitted to the notariat in 1948.[2] Early female
pioneers were mostly widows and daughters of notaries
killed in the war, and for quite some time the number of
women in the profession remained extremely modest. (1968:
36; 1973: 73; 1980: 130; 1999: 1000 (=13.46% of total)) In
Paris, the first two female notaires
were
appointed in 1977. Tangible change set in from the 1980s,
with larger numbers entering the profession and the first
women being appointed to higher office. Yet, even today
over three quarters of French notaires
are men,
with women making up 21%. Ironically, by West European
standards generally, even 21% represents something of an
achievement, as there are national notariats that do not
even reach a female participation rate of 10 per cent.[3]
Looked at more closely, though, the figure disguises a
somewhat less favourable picture, as only 16% of
independent notaries are women, while their share among
employed notaries (notaires
salariés) is
55%. Given that over half of today’s trainees are
female and the percentage of women is significantly higher
among younger notaries than among those over fifty, a
certain degree of ‘trickling-up’ can be
expected. But there is also evidence that the move to
becoming an independent office-holder represents a hurdle
of sufficient dimensions to deter many a female trainee
from aspiring to this goal.
Intriguingly, neither this fact nor the persisting
gender-based inequalities of pay - female
notaires
salariés in Paris
may take home up to 25% less than their male counterparts -
appears to raise many eyebrows within the notarial
establishment. On the contrary, the contrast with the
strongly feminised bar (2002: 44.8%) was put forward in
conversation with a representative of the CSN leadership as
a plus (‘we don’t want to become like
them!’). Generally, only modest concessions have been
made to gender equality with the occasional appointment of
a woman to the presidency of a departmental or regional
chamber (the Paris Chamber elected its first female
President in 2002). Since 1998, the otherwise male steering
committee of the National Council has had one female member
- a fact that is proudly quoted as unambiguous evidence of
the profession’s commitment to the equality of women,
accompanied by comments to the effect that women do not
come forward as candidates as they simply lack in
confidence. As for racial equality, this is a topic that
has not yet been approached in any public form.
Training
Autonomy
in the context of training has become central to the French
notariat’s strategic planning. While traditionally
anyone could step into his predecessor’s shoes
without worrying much about formal qualifications, a
university education became the norm from 1972 as an
important part of a programme of reforms, after a thorough
internal survey had provided evidence of a serious
credibility crisis. The introduction of structured training
offered a welcome opportunity to the national leadership to
make its mark vis-à-vis more venerable regional and local
organisations, while also diplomatically accommodating an
impressive, and by international standards unusual range of
alternatives dear to various subgroups within the
profession.
The bulk of those undergoing notarial training - some 500 a
year - come through two routes: either the
‘professional route’ of a three-year degree in
law, or the much more specialised and therefore less
flexible ‘university route’ providing for a
three-year notarial diploma. In both cases, a further three
years of notarial theory and practice are required. But it
is also possible for jurists from other fields with only
one year’s notarial experience to enter the
profession sideways (some 5% of applicants a year), or even
for office clerks without a university degree but with
significant practical specialised experience and some
notarial theoretical training to rise to a post via
internal promotion - traditionally a very common
occurrence, now relatively rare. Finally, notaries from
other countries may, in theory, be admitted after passing
an aptitude test, although in practice this route is still
blocked by the nationality requirement which operates
for notaires
in
France and, indeed, in all but three European civil law
countries. (Spain, Portugal and Italy gave in to pressure
from the European Commission in 2002 and undertook to
abolish their nationality requirement, although this
undertaking has so far remained without any practical
consequences.
From the 1970s, the profession’s leadership has
worked hard to acquire and retain a central role in the
funding, design and delivery of both initial and continuing
notarial training, occasionally in competition with
regions. Their collective achievements are remarkable by
any standard. Continuing training - to the regret of many
still not obligatory - is offered by Regional Councils as
well as at five training centres set up by the National
Council, each of these specialising in a major area of
notarial activity [4], as well as at the so-called
Université du Notariat, the annual training programme
organised by the National Council in Jouy-en-Josas near
Paris.
A very recent indication of the significance attributed by
the National Council to the control of initial notarial
training as well as to the government’s
disinclination to go against their striving for autonomy in
this area came with the political challenge to meet the
Bologna criteria for higher education. A careful balance
has been struck between accommodating the
government’s wishes on the one hand and ensuring the
profession’s continuing authority over the process on
the other. Negotiations with the Ministries of Justice and
of Education have resulted in a compromise agreement: the
structural framework of undergraduate diploma,
master’s degree and doctorate will be introduced in
return for an undertaking that the profession’s
training autonomy will not be adversely affected and
the diplôme
supérieur du notariat will
remain untouched.
Centralisation has proved out of the question in the
context of the five autonomously funded and run regional
centres for research, information and documentation
(CRIDON) at Lyon, Paris, Lille, Bordeaux and Nantes, each
of them taking great pride in their respective
achievements. Created in the 1960s, they were set up to
improve the quality of notarial services by providing ready
access to information and advice, especially to those
working in isolation in more remote parts of the country.
So great has been their success that both Germany and
Switzerland have used them as models for similar
institutions of their own. The largest centres (Lyon and
Paris) employ some 30 specialist consultants ready to
answer any questions put to them by notaires
in their
specific regions (and only those). Cultural differences
between regions were vividly described to me at the Paris
CRIDON, for instance in terms of communication cultures:
‘Here in Paris everything gets written down and used
and reused later: a note becomes a conference becomes a
book. In Lyon and Bordeaux they talk to each other.’
As for recruitment cultures, Lyon, the oldest of the
CRIDONs as well as the model for all others (established in
1962), was said to recruit lawyers with an established
professional reputation ( ‘les
gens installés’); in
Paris consultants are hand-picked (‘The CRIDON is
the Institut
Pasteur.’):
either young people who are given their first job and will
rise to becoming university professors later, or specialist
professionals head-hunted over a period of 18 to 24 months,
who are experts of the ‘German’ rather than the
‘French’ kind (‘They must have answers in
their heads rather than need books to find them.’);
while the centre in Nantes was referred to rather unkindly
as a ‘pension
des Jésuits’.
Calls for a co-ordination or even merger of the work of
these five centres can occasionally be heard, but nobody
would seriously expect more than marginal concessions in
this direction.
Access
The number and location of notarial offices is strictly
controlled by the Minister of Justice and Keeper of the
Seals, in consultation with the profession. Candidates for
office are proposed by chambers and normally accepted by
the Minister without queries. The justification given for
the need for a numerus
clausus is that
competition in an open market would detract from
notaries’ commitment to public service and endanger
the quality of their work. As a concession to transparency
and fairness, a special commission, the Commission
de localisation des offices des notaires
(CLON),
has since 1986 been in charge of monitoring and, if
necessary, adjusting the number and location of offices. On
average, of the 500 or so young people who qualify as
notaries every year, only some 300 end up ‘taking the
oath’ and being admitted, the remainder having the
choice between waiting for their chance (which can take a
long time), offering their services as notaire
salarié, or
joining the ranks of the competition (the bar) instead.
An appointment to notarial office can come about in four
ways. Three of these apply to the bulk of the country, the
fourth only to the regions of Alsace Lorraine where the
German system was retained after the territory’s
return to France in 1919. Firstly, candidates may be chosen
by retiring notaires
as their
successors. Secondly, they may apply for a vacancy, subject
themselves to a highly competitive examination, and, if
successful, produce the funds to indemnify their
predecessor. Thirdly, it is possible to apply for one of
the (very rare) newly created offices and sit appropriate
highly competitive examinations.
A burning and very immediate issue amongst the
profession’s membership is the current (low) ceiling
placed on the number notarial offices by the Minister of
Justice. This has increasingly come under fire, especially
amongst the younger generation frustrated by the
difficulties put in their way, but also from those who see
the profession’s tiny size as a serious hazard in a
growing and increasingly competitive legal services market.
While throughout the nineteenth and the first half of the
twentieth centuries, the number of notaires
had been
regarded as too high and had been allowed consistently to
decline [5], a first wave of office creations occurred in
1964 in order to accommodate 101 notaires
returning
from Algeria. A second wave followed ten years later when
109 offices were established in the context of the
introduction of sociétés
civiles professionnelles. Had
all these new offices survived, they would by 2005 have
accounted for 13 per cent of the total of 4503, but quite a
few, especially of those created in the 1970s, did not.
(Lemoine, 2000; Urvoy, 2005) Yet much more would be needed
to meet applicant and market demands. Rebellious voices can
be heard asking for a comprehensive overhaul of the
appointment system, including offering all applicants the
chance to open their own office as well as some choice of
location. (Moreau, 2005)
In 2005, a first step towards improving the situation and
moving towards the figure of 10,000 offices originally
promised was taken as government and profession agreed to
set up 2000 new offices over the next ten years. Not all
members are happy with this plan for fear of greater
competition. But overall such fears are outbalanced by the
realisation that the profession needs to increase its
visibility and clout, esp. in the light of the rapid growth
of the bar. The urgency of this argument is underlined by
the prospect of a further strengthening of the bar by a
merger with in-house company lawyers (juristes
d’entreprise). This
would allow the creation of a specialised business bar and
move the legal professions closer to its vision of
la
grande profession juridique.
(Boigeol & Willemez, 2005; Conseil d’État, 2001)
A unique feature of the French notariat is the fact that an
appointment to notarial office requires evidence not only
of subject expertise and experience but also of the
candidate’s sound financial position. Permission to
take out a loan is tied to evidence being provided by the
applicant that enough capital is available for a
substantial down payment. This goes even for those with the
prospect of a newly created office, as they have to find
the resources needed to compensate neighbouring offices for
alleged loss of income. On the basis of a recent internet
survey among aspiring notaires,
it has been calculated that this down payment, representing
25% of the ultimate purchase price plus some other costs,
amounts to a minimum of 126,383 euro, requiring a newly
qualified notary with no personal means to save up for
twenty-eight years before being able to consider running
his own office. (Notariat2000, 2005)
This system starkly contrasts with the system operating in
the three departments of Haut-Rhin, Bas-Rhin and La
Moselle, where the German admissions system has remained in
operation. Here no money changes hands and appointments are
based on purely meritocratic criteria. Nor have any major
financial scandals (sinistres)
- the bane of the profession in the rest of France - ever
come to light in these parts of the country. Yet, the
adoption of a meritocratic principle has found little
favour among the profession where everyone already
installed would stand to lose.
A survey among some 900 notarial offices conducted early in
2005 by the journal Notariat2000
(which
is associated with the Mouvement
Jeune Notariat) did
find considerable sympathies with a meritocratic system.
But in this particular context the traditional system for
existing offices was not drawn into question and opinions
were only sought on the topic of newly created offices. Not
surprisingly, the institution of the droit
de présentation and sale
of offices has been a frequent target of attack (for a
recent example from the camp of avocats
see
Redoutey, 2006). It is the basis for the disproportionate
degree of prosperity that marks out a significant section
of the French notariat, most particularly in Paris but also
in other urban centres, where notarial offices have been
handed down in the same family from generation to
generation. Average prices quoted for 2002 were 50,000 to
700,000 euros. (Schützeberg, 2005, p. 142).
So far, nothing has shifted. Why should that be so? Apart
from the strength of the notarial lobby on the one hand and
the lack of political will on the part of the French
government on the other, there is a shatteringly simple
economic reason, summed up most succinctly in a
comprehensive report commissioned by the French government
under de Gaulle in the late 1950s on the subject of
obstacles to the country’s economic expansion.
Amongst the key obstacles identified by the authors of the
report were rigid professional structures and regulations,
exemplified by a number of case studies, one of them on
professions classified as officiers
ministériels, in
particular the notariat. However, the report’s
recommendations on how to liberalise these professions for
the benefit of the national economy prefaces the section
on notaires
by the
following bland statement: "The Committee has not judged it
possible to propose the suppression of the traditional
system of the venality of offices due to the expense the
state would incur in indemnities for some 6,370
notaires
in
metropolitan France." (Armand-Rueff, 1960, p. 43 - my
transl.)
To this day, in any debate about the profession’s
role in society, its ambivalent dual status of public
officer and member of a liberal profession (seen by its
critics as having its cake and eating it), the
droit
de présentation has
remained the main sticking point. To quote from a book by
one of the system’s more brilliant critics, at the
time (1970s) the youngest judge at the court of appeal in
Paris, Michel Jeol: "Is it acceptable in a republican
system that one should come to a public office by
purchasing it ? Admittedly, the government gives its
agreement and the profession its views on each occasion of
transmission of office. But those checks do not ensure
democratic access to the function. On the contrary, they
lend themselves to discrimination when to the obstacle of
money can be added exclusion on political and social,
indeed also on racial and religious grounds." (Joel, 1977,
p. 98) Joel’s suggested solution was a gradual
phasing out of the numerus
clausus by
limiting office holders’ ownership to their own
lifetime so as to spread the costs of compensation over
time and make the process manageable. But to this day,
neither this nor any other proposed strategy to remove this
eyesore left over from the ancien
régime has
received serious consideration by the French government.
Representatives of the profession itself, when questioned
on the subject, tend to play down its significance,
emphasising variously the difference between
droit
de présentation and
vénalité,
the fact that the final say on the choice of a
notary’s successor and the price to be paid for his
office rests with the Minister of Justice, and the analogy
with other liberal professions (lawyers, doctors etc.) who
also own and sell their offices (but, of course, do not
also claim to be officers of the state). Notaries in other
countries look upon this state of affairs with mixed
feelings, occasionally tinged by a touch of envy, as it
adds further to their difficulties in explaining
convincingly to their own critics the benefits to society
of the profession’s dual role as public officer and
member of a liberal profession.
Income and activities
Having gone through economically uneven times in the 19th
century, French notaries have, since World War II,
developed into a truly prosperous profession, largely due
to the profession’s intimate link to the property
market. In 2005, their clientel numbered some 20 million
(i.e. roughly one third of the country’s population),
and their annual turnover was 5800 million euro. In June
2005, the periodical L’Expansion
published
‘the truth about the liberal professions’,
showing notaries to have the second highest average income
of all liberal professions in France, well above
avocats.
From 2002-2003 their income level rose by 17.1% to a
national average net income of 187,000 euro per notary,
compared to an increase by 6.3% to a national average
income of 62,605 euros for avocats
for the
same year. These average figures hide huge discrepancies
between the highest earners in Paris and other big cities
and low earners in economically deprived rural areas.
However, no notaire
has ever
been forced into real financial hardship as the profession
collectively funds its own insurance system as a safety-net
for anyone getting into serious financial trouble, be it
through financial mismanagement, personal misfortune, or a
downturn in the respective region’s economy.
The profession’s prosperity is mainly anchored in a
generous range of monopolies in the legal services market
given over to them by law, most particularly in the context
of property registration. Their (quasi-)monopoly regarding
access to the land register, the outcome of a reform of
land registration in 1955, is the source of over half of
their average annual income - enthusiastically referred to
by one of their members as ‘the notarial hen of the
golden eggs’ (‘la poule aux oeufs d’ore
notariale’). (Bigot (2005, p. 15) Another quarter
comes from activities in family law and estate management,
the remainder stemming from work concerning loans and
mortgages, company law work, general counselling
etc. Notaires
have
been alerted by their leadership that, although in absolute
terms their market looks healthy, it is actually shrinking
in relative terms from year to year, as the legal services
market overall as well as the number of providers are
exploding.
By their own admission, notaries collectively have become
rather complacent and are making little or no effort to
retain other traditional areas of activity, let alone
expand into new ones. The seemingly unstoppable increase in
the value of property has given them a sense of security
which many regard as a high-risk approach. Admittedly,
every increase in the price of housing automatically
increases their income. But even if the property market
continues to expand, competitors are always looking out for
a chance to get their own slice of the cake. Already the
journal L’Expansion
has
alerted its readers to the possible savings if, in selling
a house worth over 1 million euros, they involve an
avocat
and the
courts rather than a notaire.
Property agents are major opponents in property sales
transactions in urban areas, as notaires
have
allowed their share to slip from 9% to a mere 6% in the
four years since 2002. Property agents now hold 70% of this
market, having consistently worked on improving their
position. Not only have they made sure that their tools are
the most advanced possible (specialist training,
deontological code, websites, computer technology, research
and working networks). They have also set up chains, often
owned by banks and attracting clients through optimal
efficiency.
Inheritance planning is another traditional notarial
activity which is gradually slipping into a marginal
position as notaires
are
concentrating more and more on authentication work,
shunning the need for the specialist training that would be
required in this ever changing and increasingly complex
field, or simply finding it difficult, particularly in
small firms, to release sufficient staff capacity. Although
some 80% of those replying to a recent small survey stated
that their office still did some inheritance planning,
three quarters of these referred to giving
‘simple’ (and often unremunerated) advice
rather than getting involved in complex financial matters.
The latter are increasingly dealt with by banks and
insurance firms equipped with the latest tools and offering
teams of specialist advisers capable of providing a
one-stop shop.
Finally, newly emerging areas of activity in the legal
services market are mostly left without a struggle to other
legal service providers, i.e. lawyers and accountants. A
recent example has been the refusal to get involved with
PACS (pacte
civil de solidarité), the
legal provision established in 1999 for two people (either
of the same or of different sex) to set up a contractual
partnership for life. In this case, the beneficiaries were
the former conseils
juridiques who then
became avocats
d’affaires, who
had already occupied the area of commercial law spurned by
notaries and who are now only too happy to take advantage
of this expansion of their terrain. Another area not yet
tapped is the rapidly growing field of mediation. By 2003,
France had a total of 1,850 conciliators and 2,000
mediators, comprising avocats,
social workers, psychologists and even medics, but
notaires
have so
far not got seriously involved, although mediation by its
very nature is acknowledged to be fully in tune with their
role in the non-adversarial judiciary.
Fees
The bulk
of notaries’ work is remunerated on the basis of a
statutory fees scale. Fixed fees were introduced as late as
1896 to curb fraudulent behaviour on the part of notaries
following a period of notorious financial scandals. This
was initially done on a regional basis to take account of
differences amongst regions, but met with considerable
resistance from the profession. It was only in 1945, that
fees scales were harmonised on a national basis, an
important step in the process of professional unification.
(Moreau, 1989, 99) They then became a bastion which the
profession has successfully defended ever since, with full
government support. The justification put forward is
that ad
valorem charges,
that is fixed fees based on the value of a transaction
irrespective of the work and complication involved, allow
for a more socially just distribution of costs, as clients
engaged in major transactions are effectively
cross-subsidising the costs arising from transactions of
minor financial value. If a client has no choice whether to
see a notary or not, it is argued, notarial services must
remain accessible even to the economically disadvantaged.
It was only in 1986 that the notariat used its acceptance
of the lifting of the fees scale for commercial work not
covered by their monopoly as well as the negotiability of
fees in transactions of above 500,000 francs as a
bargaining chip to fend off worse governmental
interference. The impact of this reform has remained
modest, as the fees income from authentic notarial acts
accounts for an average of around 90% of
notaires’
earnings, although a minority of members in economically
disadvantaged regions (especially in central France) have
to be satisfied with a mere 70% and are therefore forced to
generate further income from additional services - by any
standards, nationally or internationally, still not a bad
position to be in.
The institution of fixed fees has, however, not prevented
French notaries from steadily expanding their scope for
commercial pricing even in the context of authentication.
As since 1986 negotiated fees have been officially
permitted for the exceptional event that a notarial act is
not required by law but nevertheless requested by a client,
there is a loophole for a more liberal application of the
norm. Negotiated fees have become perfectly common in areas
where there is competition with other professions, as for
instance in company law matters. Here rebates are offered
on fees that would otherwise exceed 80,000 euros, and on
occasion fees are waived altogether. (Schützeberg, 2005,
pp. 157ff.) The National Council’s warnings of the
political risks of this trend don’t appear to be
heeded.
Grass roots’ calls to press the government to raise
fees are discouraged by the profession’s leadership
as unwise in the present climate. Members have been urged
to let sleeping dogs lie and to heed evidence from a number
of other countries where highly unwelcome developments have
already occurred: Quebec and Switzerland have abandoned the
fees scale altogether, the Netherlands are phasing it out,
and Belgian notaries are fearing the worst; Italy now
merely sets maximum and minimum fees levels, and Spain has
introduced severe fees reductions. Rather than pressing for
more generous fees for French notaries, members are
exhorted to resist the temptation to deviate from the
official fees scale in order to avoid offering their
enemies - the bar, the EU Commission, the Ministry of
Finance - the exact weapon they need to justify the
abolition of the entire system. Rocking the boat would be
highly unwise, the CSN President warned them at their
conference in 2003, given the profession’s almost
total reliance on fees-based income. Nor could they, in his
view, expect much sympathy from the Ministry of Finance
whose figures for the year 2000 had just shown notaries to
be the highest earners amongst French liberal professions.
(Roth, 2003) What was really needed, the CSN President
insisted, was a simplification of the existing fees
structure, providing (a) greater transparency for clients
and (b) adequate safeguards for notarial offices in
non-favoured regions, but without increasing overall costs
to society. If this antagonised the country’s very
few high earners (who would lose out), so be it.
This diplomatic balancing act on the part of the
profession’s leadership has since paid off. By 2004,
the CSN had started discussions with the Ministry of
Justice about a ‘modernisation’ of the
remuneration system, the profession having been reassured
by the Minister that the fixed fees scale for their work as
public officers would not be called into question, as it
served social justice and equality amongst clients and
amongst members of the profession.
Business structures
Notaries
everywhere in the world are a small group compared to their
main rivals, the advocacy. Traditionally, they have worked
each in their own office and in relative isolation. Today,
France, with the possible exception of the Netherlands, is
the country where the profession has moved furthest away
from this mode of working and has made the greatest strides
in adapting organisational structures to modern market
requirements.
On 1 January 2006, France had 8299 independent
notaires
(around
one fifth of the number of avocats),
making for a ratio of 7308 per head of population - a
relatively high density by Western European comparison [6].
Only roughly a quarter (2184) still operate as sole
notaries [7], almost half of these in rural areas which
take up some 70% of the country’s territory. For some
years now, thinly populated rural regions, where fully
fledged offices have ceased to be viable, are provided for
by bureaux
annexes attached
to a fully functioning office in the same region. The
majority of notaires
(6115)
are members of groupings of different types and sizes. The
option of partnerships, which was first made available in
1966/67 and was further expanded in the early 1990s, has
opened the door to entrepreneurial thinking and management,
encouraged rationalisation, and made it possible for
individuals to specialise (although as yet very few do).
Notaries may opt merely to share office facilities
(société
civile de moyens
-
S.C.M), an option rarely taken up (a total of 10 by
December 1999); or to set up or join one of two types
of société
civile professionelle (S.C.P)
which is itself a legal person - the choice of the majority
since the late 1960s; or (an option available to the
notariat since 1990/1993) to join one of three possible
forms of an incorporated company (société
d’exercice libérale –
S.E.L), a route which has been taken by a small number (50
by 30 June 2003), but which is having significant impact in
terms of shifting the profession towards an entrepreneurial
culture. The size of notarial firms, though still tiny
compared to that of law firms, is rising well beyond the
level found anywhere else, with the sole exception of the
Netherlands whose notariat is the most liberalised on the
continent of Europe. In France in early 2005, the largest
notarial firm counted a staff of 8 partners, 8 salaried
notaires, and c. 100 office staff, of whom 11 were fully
qualified notaries awaiting appointment to offices of their
own (notaires
diplômés).
Monoprofessional and even multiprofessional networks,
albeit of low profile and local or regional rather than
national in character, have been around in France in the
field of law since the 1970s, the decade during which two
large accounting firms (that later became KPMG and Coopers
and Lybrand respectively) first took roots in France. Ten
years later, the ‘Big Eight’ turned their
attention to France. By the late 1990s they had
consolidated to form the ‘Big Five’ and had
captured around one third of the legal services market for
businesses. The fusion of avocats
and
conseils
juridiques in 1990
which had been intended to create a strong counterweight of
French lawyers in the field of commercial and company law
had backfired in that it sparked off numerous controversies
between avocats
and
experts-comptables
leaving
no time for discussions about multiprofessional groupings.
The issuing in 1998 by the national organisation of bars
(Conseil
national des barreaux) of
highly restrictive regulations intended to apply to such
groupings involving lawyers, led to protest among a number
of more progressive members of profession, and resulted in
the government-sponsored Nallet report of 1999 on
multidisciplinary networks and the legal professions,
recommending the setting up of multidisciplinary groupings
by French lawyers and accountants to counteract the work of
the ‘Big Five’. (Nallet, 1999; Bpoigeol &
Willemez, 2005).
If the French bar resisted the involvement of
avocats
in
multidisciplinary networks, the same applied to the
notarial leadership. In 1993, the CSN put an early break on
developments in this direction by setting up a Network
Committee (Comité
des Réseaux, CORES)
supposed to register, vet and control such groupings, which
was however left without any means of enforcement, as
disciplinary powers remained with departmental chambers who
would have to inform the CORES of any irregularities.
Unsurprisingly, the CORES ended up simply registering those
who volunteered to come forward and has been unable to
fulfil the function it was initially set up to perform,
with many of those on the register having ceased to
function actively. As for the Nallet report, the
Conseil
supérieur national had
successfully lobbied the report’s author and his
commission not to include the notaires
in his
study in recognition of their special status of public
officers, fearing the eventual loss of the
profession’s separate identity.
Larger notarial networks of national status still tend to
be monoprofessional ones. An outstanding example, as well
as among the first of its kind, is the Groupe Monassier.
(www.groupe.monassier.com)
Established in 1992 by the Parisian notaire
Bernard
Monassier who had read the signs of the times and was
determined to keep up with market developments and the
requirements of enterprises, it currently comprises 24
notarial firms with a total of 86 notaires
and
650 staff. The network projects the image of a modern
enterprise, committed to cutting-edge expertise
supported by relevant research. An executive committee
of 9 members is responsible for implementing the
strategies agreed on at their general annual meeting,
ensuring a common approach to methods of working,
organisation and communication. Having initially focused
on commercial law and inheritance planning, the network
now offers a comprehensive range of services, covering
family and inheritance law, international law, company
and commercial law, and property law, with an emphasis
on complex financial and tax issues. Members are chosen
from across the country to ensure full geographical
coverage, and they are carefully vetted according to
certain criteria: they have to have and be prepared to
develop expertise in the network’s areas of work,
be members of an SCP or SEL, achieve a certain minimum
annual turnover, pay a fee to join as well as annual
membership fees, and be approved by existing members.
In recent years, a first move on the part of Groupe
Monassier in the direction of breaking out of the
monoprofessional structure has been the institution of
corresponding membership, which has made it possible to
include foreigners - not only notaries but also lawyers.
Corresponding members require approval by the executive
committee, pay a fixed fee, and are allowed to use certain
of the association’s services. Non-French members
currently are mainly from Western Europe (Germany,
Luxembourg, the Netherlands, Belgium, Spain, Great Britain
and Switzerland), but also from francophone Africa and
Canada. The Group is committed to continuing staff
development and research, requires its members to acquire
ISO 9001 certification, and employs the most up-to-date
methods of communication.
More recent national monoprofessional groupings have tended
to focus on one specific area previously neglected by
notaries and requiring a high degree of specialisation. The
best known of these is Pharmétudes, a network created to
engage with all aspects of legal advice required by
pharmacists, that is to go beyond the normal notarial act
of authenticating the purchase or sale of a pharmacy.
(www.pharmatudes.com). The
network is funded by its members, runs a constantly
updated database of acquisitions and sales of pharmacies
nationally, is regularly represented at pharmacist
conferences, has a carefully placed national membership,
is committed to keeping up with all developments in the
field and to continuing training for both notaries and
their staff. A more recent network, Nôtel, created in
1998 for the hospitality industry (hotels, bars,
restaurants), was modelled on Pharmétudes. But in
contrast to its model, it is a closed network,
accessible only to members, with a much larger market
and a more rapid turnover, as ownership is subject to
frequent change. There is a third national grouping,
Jurisvin, which caters for all legal needs of
winegrowers. (www.jurisvin.fr)
In 2000, the annual conference of the Assemblée
de liaison des notaires de France was
devoted to the topic of organisational structures of
notarial firms. The published report (Assemblée de Liaison
des notaires de France, 2000) presented a detailed picture
of the profession’s precarious situation and urged
members to take seriously the need to modernise its
structures. One suggestion from a politically active
Parisian notaire
was to
make more efficient use of the statutory relaxation
provided in 1990/1993 by creating holdings. These would, he
argued, facilitate the setting up of international as well
as interprofessional networks able to respond to new market
requirements, while also representing a truly proactive
response to the Nallet report and its reflexions on the
conditions necessary to modernise the juridical professions
- the notariat included. (Humbert, 2000) The only condition
for the notariat to get involved would have to be that all
those participating belong to regulated professions,
therefore strictly excluding banks.
Another advocate of networks of all types appealed to his
colleagues to remember how the bar ultimately benefited
from their exposure to liberalisation in the context of
their struggle with the five big accountants firms. Putting
one’s head into the sand is not an option, he
claimed, urging instead to plan for the worst possible
scenario, that is the termination of their special status
and protection from competition. After all, what had
happened in Quebec and in the Netherlands, could
conceivably happen in France. And if interprofessional
associations worked in the medical field, why should they
not work in the field of law? (Lecuyer, 2000)
Multiprofessional groupings that do exist tend to be
smaller in scope than monoprofessional ones. They are
typically local and regional in character, based on joint
interests and personal relations amongst
notaires,
avocats,
experts-comptables,
banquiers-assureurs
etc.,
and often arise from social groupings such as the Lions or
Rotary Clubs - developments encouraged by the growing
pressure of European and global forces on the liberal
professions in general and on the legal services market in
particular. An impressive recent example of
interprofessional co-operation was the first ever joint
congress of 7 liberal professions in Lyon in June 2006. It
was the brain-child of the Ordre
des experts-comptables de Rhône-Alpes
who had
invited a number of prestigious speakers including a
prominent member of the European Parliament. Around 400
professionals attended, including notaires
and
avocats,
all keen to present a united front in the face of the
European Commission’s liberalisation measures. No
doubt, further multiprofessional initiatives will result
from this event.
An issue closely linked with that of networks is the need
for greater specialisation within the profession - a notion
inherently alien to the traditional notaire
who
regarded his generalist label as sacrosanct and essential
to his role as personal counsellor for the whole family
and, ideally, from one generation to the next. In a way, of
course, the bulk of the profession have already become
specialists, i.e. specialists in property law, though not
by strategic planning but by default. In structural terms,
the specialist does not officially exist, although in
larger offices in urban areas, especially in Paris, a
degree of specialisation has naturally evolved. The more
progressive elements of the profession argue that just as
there is room and need for general practitioners and
specialist surgeons in medicine, so there is room and need
for generalist and specialists notaries. (Rose, 2005) But
they are as yet in a minority.
Management culture
Promoting
the need to transform notarial offices into efficiently
managed enterprises has become a priority for the
Conseil
supérieur.
Members are urged to ensure that their offices are
organised on proper business principles, paying particular
attention to personnel management, quality control systems,
and the use of technology. Predictably, achievements in
this context vary greatly, with larger city firms having
obvious advantages over small and isolated rural ones.
Improvements in personnel management have become
particularly important given the French profession’s
striking reliance on support staff, both notarial and
administrative, a feature unknown in most other civil law
systems. Office holders are constantly reminded by the
National Council that the age of patriarchal regimes is
over and that they need to take seriously their role as
employers, entrepreneurs and managers. From 2004, annual
staff interviews for developmental purposes have become a
statutory entitlement of all employees (la
loi Fillon), and
written accounts of these are required to be handed to
interviewees and be available for annual inspections. A key
outcome of these interviews is to be an agreement between
employer and employee on her or his staff development plan,
given that the new legislation entitles every employee in
France to around 20 hours of training a year, a good deal
of which can be taken during working hours without loss of
pay (Droit
individuel de formation (Dif)).
Notarial employers, on whom rests the onus of setting up
the annual interview, are taking some time to absorb and
act on the new regulations,. But so, it seems, are their
staff who would have to take the initiative to make use of
their right. Small offices with fewer than 10 staff are
finding it particularly difficult to comply, both in
practical and in psychological terms, one of the more
frequently heard objections being, Why and how conduct
formal interviews when you are working with these people
day in day out? And how can you spare them when there is
nobody to replace them ?
Until a few years ago, ready availability of qualified
applicants for jobs in notarial firms could be taken for
granted. But this has now changed, as young people prefer
more glamorous and less specialised careers, better
remuneration and a city environment. Both, qualified
notarial and qualified administrative staff, are in short
supply nationally and will increasingly become so over the
next 5 years, as a wave of retirements amongst baby-boomers
of both categories is setting in. Nearly 1000
notaires
will
have retired by 2008. Replacements can come from three
groups: either the current pool of notaires
stagiaires (trainees
in their final stage of training),
or from
among notaires
assistants (those
who have completed training and are waiting for
opportunities for appointment to independent notarial
status), or from notaires
salariés (fully
qualified notaries with all the rights and duties of a
notary, but salaried rather than self-employed), all of
which also need to be replaced. Success in recruiting such
collaborators varies greatly, with rural offices
experiencing most difficulties while those in Paris have
all the choice. A particular headache to the profession is
caused by the fact that not infrequently those fully
qualified as notaires
(by a
process which involves the profession in not inconsiderable
expense) end up opting for another career, either because
they cannot come by an office of their own or because
competing professions who are very happy to absorb young
lawyers with additional notarial expertise are making them
more attractive offers.
The post of notaire
salarié, a
notion regarded in most civil law systems as a
contradiction in terms as it would seem incompatible with
the essential feature of independence, was created in 1990
and initially intended not only as a safety-valve to ease
the pressure brought about amongst aspiring notaries by
the numerus
clausus on the
one hand and financial constraints on being appointed to an
office on the other, but also as an option for
conseils
juridiques whose
profession was being disbanded and whose membership would
have provided the notariat with welcome access to the
fields of company and commercial law [8]. There had been
the hope that the notaire
salarié might
facilitate flexibility and modernisation without any risk
to the existing tight regulatory framework. (Lefalher,
2000) However, the result so far has been disappointing.
The take-up has been distinctly hesitant (2004: 200
notaires
salariés, i.e.
2.5% of the total) and the status of notaire
salarié has
generally come to be regarded with suspicion, a kind of
second-class notaire.
As for the conseils
juridiques, they
mostly moved straight into the advocacy, strengthening its
position in the area of commercial and company law and
thereby reinforcing rather than easing pressures on the
notariat.
Possibly the greatest human resource problem facing the
French notariat is a looming shortage of qualified
administrative and technical staff, on whom the success of
any notarial office heavily depends. While during the last
thirty years demand for jobs has generally outstripped
supply, a wave of retirements in coming years will create
gaps which nobody can quite see how to fill. To pre-empt
serious problems, the CSN set up an Observatoire
des collaborateurs which in
2003 conducted a survey and produced the first
comprehensive national picture of administrative staff on
permanent employment contracts in notarial offices,
covering a wide range of different facets, including
employees’ functions, specialisations, and retirement
plans. (Assemblée de Liaison des Notaires de France, 2004)
It emerged that of the total of 41,108 staff in post by the
end of 2002, a quarter, that is over 11,000, would have
retired by the year 2010. The detailed profile of those
retiring has provided the CSN with a clear overall idea of
what training needs to be put in place in preparation. Most
of this will concern women, as these already make up 82% of
administrative and technical staff, and their share is
likely to rise in future. Significant regional variations
will require a good deal of fine tuning, with support
needed for the most economically disadvantaged regions
where recruitment of staff has been problematic at the best
of times.
Quality control is a relatively new concept for
French notaires
and sits
awkwardly with the profession’s traditional
self-image. As recently as 2001, the then President of the
CSN referred to ISO as a very Anglo-Saxon notion not suited
to French culture (‘ce que nous sommes’), and
warned anyone trying to use it for publicity purposes.
Instead he recommended simple certification of services. By
2003, the CSN had changed President and position. The mere
certification of services was declared to be unsuitable as
it was not entirely under the profession’s control,
but partly in the hands of consumer organisations and the
national competition authority. Nor were their methods,
involving surprise visits and the direct questioning of
clients, compatible with the profession’s ethical
code. Generally speaking, certification methods were said
to lack sophistication and to be unsuited to the individual
character of offices. Instead, the ISO system was
recommended to the membership. They were reminded that
quality control of some form had become essential, be it
only to fend off competition, especially in the European
context.
At the start of 2004, a two-year quality plan
(la
démarche qualité notariale, DQN)
was launched by the CSN, based on 15 ways of improving the
quality of notarial services. Those willing to participate
were promised financial support. The plan involves three
stages: the first focuses on improving the running of the
office (e.g. reception services, filing, and archiving
systems), the second on management issues, while the third
prepares for certification ISO 9001 (2000). The target for
the end of 2006 was set at 1200 firms being involved in
some form. Progress during the first two years had been
rather slower than hoped. Only around 650 had got involved.
However, 21 departmental chambers and 9 regional councils
had launched their own plans, which promised to speed
things up, while a good number of (mostly southern) regions
had not even begun. Ahead of the pack were 28 firms who
already held the ISO certificates, amongst them 15 members
of Groupe Monassier.
The high profile given over to quality is reflected in a
structural reform introduced in 2004. Departmental chambers
have been relieved of their disciplinary powers
(traditionally their key role), which have been moved up to
regional level to introduce an element of distance between
the parties, make the process a more transparent and
objective one, and silence the profession’s external
as well as internal critics accusing it of laxness and
attempts to cover up disciplinary offences committed by
those same 10% who regularly run up an annual record of
client complaints well above the average level. This reform
has been presented by the leadership as a bold one. Yet,
more progressive elements within the profession -
admittedly, still a minority - consider it to be no more
than a reformette
and
would like to see further measures in this direction. Why,
some have been asking, does the notariat not have the
courage of the Paris bar which publishes in its internal
bulletin an annual list of sanctions and the reasons for
them? As things are, there is not even a binding obligation
on the part of the regional council to inform the
complainant of the outcome of the procedure. The number of
critics of the traditional secrecy surrounding disciplinary
offences as well as the lack of rigour in applying the
existing scale of possible sanctions is growing, as is
awareness that today a poor public image can no longer be
shrugged off but is likely to have serious economic
consequences which affect everyone in the profession.
Greater transparency and disciplinary rigour require a
tightening up of annual inspections of notarial offices,
which are generally accepted to have become rather lax,
with the result that in some instances turpitudes have been
allowed to be committed for many years without being
spotted. Inspections are carried out by members of the
profession accompanied by experts qualified to assess the
state of accounts and the handling of client moneys,
normally accountants (