52.16 LAWYERS AND REPRESENTATIVES OF PARTIES BEFORE THE COURTS
(9 December 1913)
(Modified by Orders n° 3212 of 23 April 1946, n° 1107 of 25 March 1955, n° 3012 of 12 July 1963, by Law n° 795 of 17 February 1966. - Repealed by Law n° 1047 of 28 July 1982. However, the provisions of the order of 9 December 1913 in respect of the lawyeres training and appointment conditions continue to apply to trainee lawyers already registered under section 3 of the roll of the Bar on 30 July 1982. - See article 42 of Law n° 1047 of 28 July 1982.)
Law n° 1047 Practice as an avocat-défenseur and avocat (28 July 1982)
CHAPTER I - CONDITIONS RELATING TO BECOMING A LAWYERArticle 1 (Law n° 1116 of 27 June 1988). - Any person meeting the following conditions may be admitted to practice as a lawyer:
1° being a Monegasque national;
2° enjoying civil rights;
3° being beyond reproach;
4° being the holder, either of a legal studies diploma fixed by Sovereign Order or by an equivalent diploma recognised by a committee, the composition of which is fixed by Sovereign Order;
5° not being called to a foreign bar;
6° have completed the training provided for by this law.
Article 2 - Former avocats-défenseurs and avocats called to the Monaco Bar, who have been practising for at least five years, are exempt from a training period. Lawyers called to a foreign Bar, who have been practising for at least ten years, may also be exempt from a training period by the Directeur des Services judiciaires** after recommendation from the Monaco Bar Association.
Article 3 - Only a person who has passed the examination regarding the capacities and knowledge required to practise as a lawyer may be admitted to become a trainee lawyer as provided for by article 1 n° 6. Admission as a trainee lawyer shall be pronounced by an order of the Directeur des Services judiciaires.
Article 4 - The training period shall last three years. Upon decision of the Directeur des Services judiciaires, the training period may: 1° either be extended for a period of one year or for two periods of one year, after recommendation from the committee of the Bar, once the trainee lawyer has been heard or duly been called; or 2° exceptionally be reduced to two years or to one year, after recommendation from the committee of the Bar, should the trainee be over thirty and give evidence of having practised law for more than ten years with an avocat-défenseur and avocat.
Article 5 - If the result of the recommendations pursuant to the following article shows that the trainee lawyer has succeeded in the training period, he or she will be admitted to practise law as an avocat. Otherwise, the trainee period will cease by an order giving reason made by the Director of the Bar.
Article 6 - Avocats admitted to practise law are appointed by an order of the Directeur des Services judiciaires issued after recommendation from the First presiding judge of the Court of Appeal, from the Public Prosecutor, from the Presiding judge of the Court of First Instance and from the committee of the Bar.
Article 7 - An avocat of the Monaco Bar who has practised law for five years may apply for admission to practise as an avocat-défenseur, if he or she is at least thirty years old. The five year period is reduced to two years for an avocat who has been exempted from training according to article 2. Should there be fewer than five avocats-défenseurs, the most experienced lawyer, and in case of the same period of service, the eldest one may, if he or she is at least thirty years old, apply for admission to practise as an avocat-défenseur even if he or she has not practised law for five years as a lawyer of the Monaco Bar. In any case, a lawyer shall not be admitted to practise law if the result of the report and the recommendations pursuant to the following article do not show that his or her law practice is sufficient or satisfactory.
Article 8 - Avocats-défenseurs who are admitted to practise law are appointed by Sovereign Order upon a report made by the Directeur des Services judiciaires after recommendation from the Presiding judge of the Court of First Instance and from the committee of the Bar.
Article 9 - No one may practise law, if he or she has not sworn the following oath before the Court of Appeal: "I swear faith to the Prince and adherence to the laws of the Principality of Monaco; I swear that during the exercise of my profession I shall not say or write anything contrary to the laws, to public policy and to public peace and I shall comply with the dignity of the existing courts, judges and authorities through my intentions."
CHAPTER II - AVOCATS-DEFENSEURS AND AVOCATSArticle 10 - The avocats-défenseurs, the avocats and the trainees make up the Monaco Bar of avocats-défenseurs and avocats of the Court of Appeal of Monaco. The Bar has legal status. The Bar holds a general meeting at least once a year.
Article 11 - The Bar is managed by a board consisting of a chairman called the President of the Bar and of two avocats-défenseurs or avocats elected by the general meeting. The President of the Bar represents the Bar in current civil matters. The powers to do so are granted for a period of one year and are renewable; however, the President of the Bar cannot hold his office for more than two successive years. Elections take place by ballot by absolute majority in the first vote and by relative majority in the second vote; where there is an equal number of votes the eldest candidate in practice is declared to be elected. Trainee lawyers are neither voters nor eligible.
Article 12 - The committee of the Bar is commissioned:
1° to maintain discipline amongst the members of the Bar as well as monitor the enforcement of laws, orders and regulations related to them and, in this respect, to prosecute any offences and faults committed by them and to impose, if necessary, any warning or reprimand sanctions;
2° to avert and reconcile any disputes between the members of the Bar, especially in respect of any presentation, forwarding or retaining of exhibits, any issues of competition or clients and to make a recommendation on such disputes or issues, in case of non reconciliation;
3° to avert any complaints or claims from third parties against the members of the Bar because of their practice; to commence and reconcile those which may be brought before them, and to draw up the minutes for the purpose of law, failing reconciliation;
4° to give their opinion to the judicial authorities, either on the complaints lodged against the members of the Bar, or on the difficulties which might arise as for taxed costs and legal expenses or for any other issue;
5° to defend the profession of avocats-défenseurs and avocats.
Article 13 - After hearing the President of the Bar, the First presiding judge of the Court of Appeal and the Public Prosecutor make a list of the Bar at the beginning of each judicial / court year. The list shows only the name, first name and address of each of the members in order of the admission dates. It is divided into three parts: avocats-défenseurs, avocats and trainee lawyers.
CHAPTER III - THE RIGHTS AND DUTIES OF AVOCATS-DEFENSEURS AND AVOCATSArticle 14 - Avocats-défenseurs and avocats are representatives of the law. They offer their services for the defence of interests referred to them with integrity. They must accomplish their task with dignity, conscientiousness and integrity.
Article 15 - Unless otherwise provided for by the law, trainee lawyers have the same rights and are subject to the same duties as the avocats.
Article 16 - The profession of avocats-défenseurs and avocats is inconsistent with: 1° the duties of a notary, bailiff and trustee in bankruptcy; 2° the duties of an administrator, director, manager or agent of a trade company; 3° the duties of a director, chief editor or manager of a newspaper or a periodical; 4° acting as an employee; 5° the profession of a business agent; 6° any other independent, industrial or commercial work, except teaching; 7° any activity affecting the independence of the person concerned or the independency of the profession. Avocats-défenseurs and avocats may manage his or her family business with the approval of the committee of the Bar, except if exercising, even indirectly, any business while dealing with such management.
Article 17 - Avocats-défenseurs have the capacity to represent the parties and to address final pleadings to any courts. Avocats have the capacity to address final pleadings to any courts and to represent the parties before the criminal courts, the justice of the peace, the labour court and in any other cases provided for by the law. Trainee lawyers have the capacity to address final pleadings to any courts, except the Supreme Court and the High Court of Appeal. They cannot represent the parties. During their practice, they wear their gown.
Article 18 - Only avocats-défenseurs are authorised to proceed with payments in cash directly related to their professional activity while representing or assisting a person, subject to any evidence of a special power of attorney in case it is requested.
Article 19 - The parties may, in any matter, ask a lawyer called to a foreign bar to assume the defence of their case. Such lawyer must have been previously authorised to address final pleadings to the court by the presiding judge of the court referred to. Such authorisation is always subject to assistance by an avocat-défenseur as to the proceedings and the preparation of written pleadings, except for the defence of a defendant person in criminal cases.
Article 20 - Avocats-défenseurs are obliged to follow on a regular basis cases conferred to them at different hearings, according to any suspensions or postponements ordered by the court in question until final judgment has been issued and enforced. They have the right to withdraw their services if they think it necessary. In such case, withdrawal takes place only once they have been replaced by another avocat-défenseur chosen by the client or if no avocat-défenseur accepts the case, one shall be appointed in accordance with the provisions of the following article.
Article 21 - If in civil matters no avocat-défenseur, nor avocat agrees to represent a party, the presiding judge of the court to decide on the matter shall appoint one officially. During any hearing before the Supreme Court and the High Court of Appeal, such powers shall be conferred to the First presiding judge of the Court of Appeal. The avocat-défenseur or avocat thus appointed shall be entitled to the same fees as if he or she had been chosen by the party.
Article 22 - In their final and written pleadings for the purpose of being produced before the court, avocats-défenseurs and avocats are forbidden: 1° to make any attacks against the principles of sovereignty and the laws of the Principality of Monaco; 2° to show a lack of respect towards or consideration for the judges.
Article 23 - Avocats-défenseurs and avocats are not allowed to make statements concerning the honour or reputation of the parties, except if required by the case and if they have received special instructions in writing by their clients. The court to which the case is referred may order the withdrawal of any such offensive letters or libels.
Article 24 - Costs and fees due to avocats-défenseurs are paid in accordance with the prevailing rates. Avocats-défenseurs, who have received payment of their legal costs, may ask the clerk of the court to forward an enforceable extract of the judgment pronouncing such payment; the legal costs shall be paid against the opposing party as well as against their own client, if the latter has been sentenced.
Article 25 - If necessary, avocats-défenseurs have the right to claim fees for efforts and care outside their fees for being strictly instructed as lawyer as well as fees for advice, final pleadings and other professional diligence without fixed rates. They do fix the amount themselves. Avocats fix their own fees for advice and final pleadings. Avocats-défenseurs and avocats are not allowed to claim any part of the litigious object or the amount of the sentence as a reward for their work.
Article 26 - Avocats-défenseurs and avocats appointed for matters requiring legal aid, in accordance with article 48 of the Monaco Code of Civil Procedure, are not allowed to ask for fees, nor may they accept them if so offered. However, they may ask for fees with the authorisation of the committee of the Bar if the sentence pronounced against the opposing party has provided the party they are assisting or representing with such means that had such means existed when legal aid was granted, it would not have been granted.
Article 27 - In case of dispute in respect of the application of the rate of costs and fees, the amount of fees or the application of the provisions of article 26, there shall be a reconciliation attempt before the President of the Bar, who is informed by simple letter. In case of non reconciliation, the Presiding judge of the court dealing with the matter shall decide. However, the presiding judge of the Court of First Instance is competent if the matter is referred to the justice of the peace. He or she is also competent if there is no lawsuit. The action is brought before the court at the request of the prosecuting party. The parties are summoned before the judge by registered letter with requesting acknowledgement at the instigation of the chief clerk of the court. Once the parties have been heard or duly summoned, the judge decides by making an order, which is not subject to appeal, except an appeal in case of default. An appeal must be lodged within the month of notification, which is sent by registered letter with a request of acknowledgement receipt. However, if the action is brought before the Presiding judge of the Supreme Court or before the First presiding judge of the High Court of Appeal, the parties will not be summoned nor will they be heard. They may, however, produce any written pleadings they think fit.
Article 28 - The President of the Bar must show evidence: 1° of collective insurance covering the financial civil liability consequences for each member of the Bar in respect of any faults committed within or during their practice; 2° of collective insurance in favour of whoever may be concerned guaranteeing for each avocat-défenseur the reimbursement of funds and the restitution of stocks and shares received during their practice. The premiums related to such insurance policies, entered into on behalf of the Bar, are paid by the members of the Bar, who are obliged to pay their share of the premiums. The President of the Bar must give evidence of such insurances to the Public Prosecutor at the beginning of each court year.
CHAPTER IV - PROFESSIONAL DISCIPLINE OF AVOCATS-DEFENSEURS AND AVOCATS
Article 29 - Avocats-défenseurs and avocats are under the supervision of the Public Prosecutor. The same is true for trainee lawyers.
Article 30 - Where there is any failure in respect of their duties, the interested parties are liable to the following sanction:
3° suspension during a period which may not exceed three years;
An additional punishment to the first three, which may also be pronounced, is the loss of the right to be part of the committee of the Bar during a maximum period of ten years,.
When the sanction imposed on an avocat is a reprimand or suspension, the sanction shall also determine the time not exceeding five years during which the avocat may not be appointed as an avocat-défenseur.
Any avocat-défenseur or avocat reprimanded or suspended is the last one to be registered on the roll of the Bar. Such additional measures will stop automatically after three years if there is no further disciplinary punishment imposed on the concerned party.
Article 31 - Disciplinary punishment is pronounced in the chamber of the Court of Appeal to which the matter has been referred by the Public Prosecutor.
However, where there is some offence committed in a hearing, the warning, reprimand or suspension may be pronounced by the court being referred to, subject to the option for such court to inform the Public Prosecutor of such offence.
The warning or reprimand may also be pronounced by the committee of the Bar meeting as disciplinary committee and referred to by the Public Prosecutor, the President of the Bar or the aggrieved party.
Article 32 - When proceedings are submitted to the Court of Appeal, the Public Prosecutor summons the party concerned to appear by registered letter that receipt be acknowledged after having received the recommendation of the Bar committee. The summons must mention the purpose of such proceedings. There shall be a period of at least fifteen days between the sending of the letter and the hearing date.
The party concerned, who may be assisted by an avocat-défenseur or avocat of his choice, gives an explanation. The President of the Barеs comments are also heard.
Judgment shall be issued at the date determined in the chamber of the Court of Appeal. If the party concerned has not appeared, he or she shall be informed of such date by registered letter requesting that receipt be acknowledged at the Public Prosecutorеs instigation. The judgment is not subject to appeal.
The judgment may be subject to appeal on questions of law before the Supreme Court within five clear days as of its pronouncing. Such appeal and its delay have suspensive effect. Such appeal is considered as urgent pursuant to article 458 of the Monaco Civil Code of Procedure.
Article 33 - When proceedings are submitted to the Bar, the procedure provided for by paragraph 1 to 3 of the preceding article shall apply. However, the registered letter will be sent by the appropriate court officer called the syndic rapporteur.
The decision is subject to appeal by the Public Prosecutor or the party being punished. The appeal must be lodged within ten clear days from the decision being made and by way of declaration to the clerk of the court. The chief clerk of the court informs the president of the Bar immediately and if necessary the Public Prosecutor or the party concerned. Such appeal and its delay suspend the proceedings.
The Court of Appeal decides in chamber, in accordance with the preceding article.
Article 34 - The decision made by the appropriate court and deciding in disciplinary matters in case of some offence committed in a hearing is subject to the usual appeal.
Article 35 - Any decision issued in disciplinary matters must be immediately forwarded, either by the President of the Bar to the Public Prosecutor or by the Public Prosecutor to the Directeur des Services judiciaires.
As soon as the decision has become final, it is forwarded by the Public Prosecutor to the President of the Bar for the application of the provisions in the 2nd paragraph of article 30.
Article 36 - Once the warning sanction has become final, the member of the Bar concerned is summoned at the instigation of the Public Prosecutor before the First presiding judge of the Court of Appeal to remind him of his duties.
Once the reprimand sanction has become final, the party concerned is summoned at the instigation of the Public Prosecutor before the chamber of the Court of Appeal ordering him or her to be more dutiful and prudent in the future.
Article 37 - In any of the cases where a suspension or disbarment has been pronounced, the effects of punishment are suspended until the Prince makes a final decision upon receiving a report from the Directeur des Services judiciaires.
However, the party concerned must abstain from practising law as of the sanction being pronounced and until the Princeеs final decision. The President of the Bar shall take all steps he thinks fit to protect the interests of the partyеs clients concerned until the court has decided in accordance with article 40.
Article 38 - If the suspension or disbarment sanction is upheld by the Prince, the member of the bar shall be convened at the instigation of the Public Prosecutor before the chamber of the Court of Appeal, the President of the Bar attending. He or she shall be notified of the measure imposed on him or her by the First presiding judge, who shall inform him or her, where applicable, that he or she must either abstain from practising law during the prescribed period or stop doing so definitively.
The president of the Bar shall take the steps mentioned at the 2nd paragraph of article 37.
Article 39 - Disciplinary proceedings do not prevent any further prosecution to which the member of the Bar may be liable.
Once any prosecution is initiated, the party concerned may be forbidden by the Court of Appeal to practise law, such court deciding in chamber pursuant to the rules fixed in article 32 and ordering him or her to be replaced according to the conditions provided for by article 40.
The President of the Bar shall take the steps mentioned at the 2nd paragraph of article 37.
CHAPTER V - REPLACING AVOCATS-DEFENSEURSArticle 40 - Should an avocat-défenseur be unable to practice law for reasons of physical incapacity or further to a disciplinary measure, the Court of First Instance may, in urgent cases and by way of temporary measure, order that he or she be replaced by an avocat-défenseur or, if none, by an avocat appointed by such court for this purpose.
The Court is seised upon request of the Public Prosecutor and decides in accordance with the provisions of article 850 of the Monaco Code of Civil Procedure in matters of grace.
The judgment determines the replacement period and may not be lifted, nor must it be served and is not subject to any appeal.
The avocat-défenseur who has been replaced, the substitute and the President of the Bar are notified of such judgment by the chief clerk of the court by registered letter requesting that receipt be acknowledged.
The order made may be extended or cancelled by a judgment issued in the same way.
CHAPTER VI - FINAL PROVISIONSArticle 41 - After the Directeur des Services judiciaires has referred to the committee of the Bar and the council of State has been heard, a Sovereign Order shall fix
1° the entrance examination conditions in respect of training and the conditions according to which the examination must be done;
2° the rules of operation of the Bar;
3° the additional provisions regarding the rights and duties of all avocats-défenseurs and avocats;
4° the provisions regarding insurance effected by the President of the Bar on behalf of the Bar.
Article 42 - The Order of 9 December 1913, Law n° 795 of 17 February 1966 and Law n° 823 of 23rd June 1967 as well as any provisions contrary to this law are repealed. However, the provisions of the Order of 9 December 1913, as modified, regarding the lawyersе training and appointment conditions shall continue to apply to trainee lawyers already registered under part 3 of the roll of the Bar on the date of publication of this law.
Article 43 - The committee of the Bar in practice upon publication of this law shall remain in office until the beginning of the next court year.