The Working Group on the Law Governing Legal Practice
Submitted to Legal and Justice Affairs Advisory Council The Office of the Federal Attorney General
January 22, 2019
REFORMING REGULATION OF LEGAL PRACTICE IN ETHIOPIA
This study is prepared as part of the contribution of a team of lawyers1 Advisory Council to review the basis of existing legal practice in Ethiopia, identify problems and recommend solutions. The study focuses on legal practice by private attorneys or commonly referred to as advocates. It looks at the legal and institutional framework on the basis of which legal practice is currently regulated and also, where appropriate, takes a comparative look by highlighting country and international practice. The study concludes with recommendations that arise from the analysis made in its various sections. Once the recommendations are consulted and agreed up on, new detailed rules informed by the change of policy and forming the institutional and normative framework to regulate legal practice will have to be developed.
1.1. The Background of Legal Practice
The historical background of the emergence of legal practice dates back to ancient Greece and Rome. In ancient Greece, the individuals who were described as “lawyers” were the orators of ancient Athens.2 A litigant would approach a well-known orator or writer and explain his/her case so the orator or writer would provide him or her with a court statement or a documentary evidence to be annexed to the claim.3 This was the case because the laws of Athens required litigants/individuals to plead their own case at a court of law.4 However, this law was repealed due to the pressing demand for litigants to be assisted by their friends or other persons at the court of law making it possible for litigants to be assisted by their relatives, friends or other persons who have no direct interest in the case.5 Nevertheless, there was a legal requirement
prohibiting the payment of any fee for legal representation; although it had not been observed by many due to its unpopularity6.
In ancient Rome, where the civil law system originated, there were non-official lawyers called juris consulti and patroni.7 Unlike Greece, the juris consulti were trained in law. However, the Roman lawyers did not have a professional code of conduct. 8 Any person could call himself/herself an advocate or a legal professional. Emperor Claudius legalized advocacy as a legal profession and imposed a fee of 10,000 sesterces for the professional service.9 A well- established and regulated legal service is said to have started in the Byzantine Empire.10
Modern legal profession was started in the 19th century. During those days, lawyers’ services were restricted to litigation and court appearances. However, several changes have been introduced to the legal profession around the end of the 19th century. Mainly, the role of advocates extended from court appearance and litigation to facilitating client’s businesses in different government offices and administrative courts.11 Gradually, the legal profession became a professional service provided by skilled persons who are trained in law including services such as legal counseling and court representation; it also became a legally recognized and accountable profession. In the present day, in almost all countries of the world, it has become mandatory for a person providing a legal service to be trained and experienced in law.
In Europe, at the beginning of the modern age, professionalization of lawyers accelerated. Some countries saw a unified profession; in others, the profession was divided in those who advised outside of courts and those who represented clients at court. Some jurisdictions began to require studies of the law at universities and/or completion of a practical training. Regulation came from top to bottom through government decrees, parliamentary statutes, or through courts. It can be said that with a more sophisticated and professionalized judiciary, the need for well-educated and trained lawyers grew in order to provide equality of arms between the different professions within the legal community. Lawyers exercised an increasingly important function beyond
representing clients in litigation. As advisors, they worked for private clients and government agencies. Beginning in the late 19th century, the legal profession gradually became a professional service. In the present day, in almost all countries of the world, it has become mandatory for a person providing a legal service to be trained and experienced in law.
In most countries, providers of legal services were supervised by the government – be it the executive or the courts. In Canada, the year 1797 marks the beginning of self-regulation, when the Law Society of Upper Canada was created by statute. Before then, lawyers had been supervised by the judges they appeared before. In the USA, the first – rather informal and private – self-regulation of the profession began in the 19th century when local clubs of lawyers decided to give themselves codes of conduct to fill in the gap in regulatory institutions and standards. In Germany, to give an example from continental Europe, self-regulatory bars were established in the late 19th century, after private associations of lawyers had demanded independence from a government-supervision which was so tight that lawyers were indeed rather civil servants like public prosecutors. Self-regulation in statutory bars was eventually granted to the lawyers in Germany in 1878.
Quite dramatic changes in the way the profession is regulated started only after the turn of the millennium. On the one hand, there was a difficulty to align the regulatory framework which had been created with the image of a solo practitioner in mind, who – as a generalist – dealt with all legal needs of the clients due to superior education and experience, with a reality in which the legal profession had become increasingly heterogeneous. In the UK, for example, law firms had grown, especially since in 1967 when the ban on law firms to have more than 20 partners was lifted by the Companies Act. In the US, very large law firms were formed around the same time. A similar development, even though delayed, took place in Germany after the Federal Court of Justice ruled in 1989 that it was possible to have law firms with offices in more than one district. This led to the development of nationwide law firms. The General Agreement on Trade in Services (GATS) and the European Union (EU) legislation allowed for cross-border practice and multinational law firms since 1994. Countries like Greece or Italy kept a legal framework for the profession that kept lawyers in small, local firms, where – until today – they practice as generalists.