Disciplinary issue: how should one proceed?

Disciplinary Procedure for Lawyers in France

1. Triggering the procedure 
   A disciplinary case can be initiated following:
   
   - A complaint from a client, a colleague, or any third party,
   - A report from a judge or public authority,
   - Or the initiative of the Bâtonnier (the head of the local Bar).
2. Preliminary phase 
   The Bâtonnier examines the complaint. If it appears unfounded, it may be dismissed. If there are sufficient grounds, the matter is referred to the Disciplinary Council (Conseil de discipline ).
3. Jurisdiction 
   The Disciplinary Council is a body composed of elected lawyers, independent from the Bar Council. It has jurisdiction to hear and decide disciplinary cases.
4. Rights of the lawyer concerned 
   The lawyer under investigation is granted full procedural safeguards:
   
   - The right to be informed of the charges,
   
   - The right to access the file,
   
   - The right to legal representation and to present a defense.
5. Sanctions 
   Possible disciplinary sanctions, depending on the seriousness of the misconduct, include:
   1. Warning (avertissement ) – the lightest sanction.
   2. Reprimand (blâme ) – more formal censure, can also be published.
   3. Temporary suspension from practice (interdiction temporaire d’exercer ) – for a maximum of three years, with or without a suspended execution.
   4. Disbarment (radiation du tableau ) – permanent removal from the Bar, which means the lawyer loses the right to practice.
      In addition to these main sanctions, the disciplinary authority may also impose complementary penalties, such as:
      
      - The prohibition, for a certain time, to join or establish a professional structure (e.g. law firm, collaboration, or pupil contract).
      
      - The obligation to follow additional training in ethics or deontology.
      
      - The publicity of the decision (communication to the Bar, sometimes publication in the press or professional journal).
      
      
   5. Appeal 
      Decisions of the Disciplinary Council may be appealed before the Court of Appeal (“Cour d’appe”l). Ultimately, the Cour de cassation may be seized on points of law.
   6. Role of the profession’s self-regulation 
      This system reflects the principle of lawyers’ self-regulation: disciplinary matters are primarily dealt with within the profession, though under the supervision of the courts.

Simplified Disciplinary Procedure for Lawyers in France (“Procédure disciplinaire simplifiée”)

• Purpose: To deal more efficiently with less serious ethical or disciplinary violations — “small misconducts” (petits manquements).
• Non-applicable cases: 

1. When the disciplinary proceedings are triggered by a complaint/reclamation by a third party (client, public, etc.).
2. When the lawyer has received (within the past five years) a temporary suspension of practice (interdiction temporaire d’exercice) with or without suspended execution. In that case, the simplified procedure cannot be used. 

1. Decision to initiate simplified procedure 
   The Bâtonnier of the local Bar may decide to use the simplified procedure, provided that the case falls within its scope (non third-party complaint;no recent suspension). 
2. Notification & proposal
    - The Bâtonnier must call/notify the lawyer subject to the procedure, giving them a chance to be heard (with counsel if desired).
   - The lawyer is sent a “proposal of sanction” (proposition de sanction), which must include:
   
        - a detailed description of the facts alleged;
   
        - the relevant evidence/pieces;
   
        - the motivation (reasoning) for the proposed sanction. 
3. Lawyer’s response (15-day period) 
   
   - The lawyer has 15 days  (from receipt of the proposal, with certain means that give a certain date) either to:
        - recognize the facts and accept the sanction;or
        - refuse the proposal (or simply not respond, which counts as a refusal). 
4. If accepted
   
    - If the lawyer accepts the sanction, the Bâtonnier must submit the case (dossier), including the accepted proposal and all documents, to the disciplinary jurisdiction for homologation (approval). 
   
   - The disciplinary jurisdiction then decides whether to homologate or refuse to homologate the sanction. The tribunal considers whether:
   
        - the facts are recognized,
        - the sanction is accepted,
        - and whether the sanction is justified given the facts and the behavior of the lawyer. If any of those is  not satisfied — or if the nature of the misconduct, the interests of the profession or other circumstances require — the jurisdiction may refuse homologation and order the case to proceed under the ordinary disciplinary procedure.
   
   - Once homologated, the decision becomes final unless there is a timely appeal by the lawyer or an opposition by the attorney general (“procureur général”). 
5. If refused or no response (i.e. lawyer refuses or does not accept the proposal)
   
    - The Bâtonnier may still pursue the simplified procedure, by transmitting the dossier plus a transcript of the hearing of the lawyer (if there has been an audition) to the disciplinary jurisdiction. The lawyer must be heard / auditioned;the dossier prior to the proposal is transmitted.
   
   - Importantly: The proposal of sanction and the lawyer’s response / observations regarding that proposal cannot be used in the continuation of the procedure (they cannot be produced or invoked). 
   
   - The disciplinary jurisdiction will decide in a restricted formation if possible;if the jurisdiction finds that the facts alleged do not justify a sanction, it may dismiss. Otherwise, the case might go over to the ordinary disciplinary procedure.
6. Fallback to ordinary procedure
   
   - If the simplified procedure fails (for instance because homologation is refused, or because the case merits a more serious treatment), then the ordinary disciplinary procedure applies. 
   
   - In that ordinary procedure, none of the material from the simplified phase that is disallowed (proposal, observations on proposal, lawyer’s statements after audition etc.), is permitted to be used in the ordinary procedure. 

Allowed Sanctions under the Simplified Procedure : strictly limited to  warning  and  reprimand  (with some complementary measures): 

• Warning (avertissement ) or reprimand (blâme ) 
• Complementary penalties in certain cases: e.g. temporary prohibition from entering into a new collaboration contract or a new pupil contract (“contrat de collaboration” or “contrat de stage” / “éléve avocat contract”) 
• Possible obligation for additional training in ethics / deontology. Typically limited in hours (e.g. up to 20 hours over 2 years) in some commentary.
• Publicity of the decision may also be among the complementary sanctions. 

Safeguards and Procedural Guarantees 

• The lawyer has the right to be heard, to respond, to be assisted by counsel. 
• Duty to provide clear facts, evidence, motivation. 
• Right to “contradictoire” (i.e. opportunity to contest) during the hearing / audit. 
• Opportunity for appeal or opposition to the decision of homologation by the lawyer and/or by the procureur général.