1) Facts
Since July 26th 2001, lawyer Mrs. C., was working in the French Law office “J.B” under a “service agreement” (“contrat de collaboration”). Her service agreement with “J.B” office was established for an indefinite period of time. However, at the end of October 2005, the law firm terminated it. Subsequently to this, Mrs. C., referred the matter to the “President of the Bar” (le “Bâtonnier”) and asked him to reconsider her service agreement and redefine it as a classical contract of employment.
On January 21st 2008, the Court of Appeal of Lyon, countering the arbitration judgment returned by the “Bâtonnier”, welcomed the demand of the claimant and viewed the breach of contract of Mrs. C. as a “dismissal without real and serious cause”. Subsequently, the French office of lawyer “J.B” was condemned by the Court of Appeal of Lyon to pay several sums to Mrs. C.
Dissatisfied with this decision, the law firm claimed an appeal. In a judgment of May 14th 2009, the civil appeal division of the superior Court of Cassation rejected it, considering that the main demand of the claimant to re-qualify her service agreement in a classic contract of employment was legally justified.
2) Solution
The Court of Cassation agreed with the Court of Appeal of Lyon in its decision; however it did not follow the same reasoning. Indeed, the superior court considered the decision returned by the Court of Lyon as partly deprived of legal basis as far as it re-qualified the contract of Mrs. C. in contract of employment while recognizing that she was able, during her 5 years spent within the office “J.B” to develop 5 private files, which means 5 personal clients. As such, the Court of Cassation reminded that “salaried lawyers” (“avocats salariés”) distinguish themselves from “liberal lawyers” (“avocats indépendants”) mainly because the first ones are not allowed to develop their own clientele.
To justify the rejection of the appeal required by the French office “J.B”, the Court of Cassation insisted on the “real conditions” of work of Mrs. C., underlying that she was not totally “free” to develop her own clientele while her service agreement was permitting it.
In this specific case, Mrs. C., who had concluded a service agreement, had been able to follow only 5 personal files in 5 years of work at “J.B” office. The Court of Cassation then considered that the “valueless” number of private files performed by the lawyer as well as the working conditions, particularly the logistic ones (the sharing of Mrs. C.’s desk with another lawyer as well as the sharing of the computing and phone tools), could hinder the technical independence which deeply characterizes and differentiates a “liberal lawyer” (“avocat indépendant”) from a “salaried one” (“avocat salarié”). As a consequence, the requalification of Mrs C.’s service agreement in contract of employment, by the Court of Appeal of Lyon, was legally justified.
3) Legal consequences
The judgment of the first civil appeal division of the superior Court of Cassation, given on May 14th 2009, considers that the processing of a valueless number of private files for a lawyer working with a law firm under a service agreement, does not constitute - even if possessing personal clientele is banned for “salaried lawyers”- an obstacle to the qualification of this contract in contract of employment. Indeed, since it is established that the specific situation is not determined by the liberal/independent lawyer’s will and facts, but as a consequence of his or her general working conditions; then he or she can pretend to see his or her contract re-qualified as a contract of employment.
The impact of this decision is very important. The social welfare of “salaried lawyers” (“avocats salariés”) is not the same as that for “liberal/independent” ones (“avocats collaborateurs indépendants”) in France: the obligations for payment of diverse compensations and allowances for the employees, but also the direct application of labor law rules etc… could, as reported by numerous authors of doctrine, increase the number of salaried lawyers in the next few years. In the same way, it is the maintaining of the intrinsic liberal character of the profession, which is at stake…
Frédéric CHHUM Avocat à la Cour
Linda MAMAR-CHAOUCHE
