In-between the Public and the Private / The New Lawyering Business
When our story begins, at the end of the 1980s, the French legal profession hardly overlaps with markets and government. The traditional professional ideals of the “classical bar”1 (barreau classique) that had solidified in the context of the rise of French republican ideas were no stranger to these weak ties, as this deontology exalted disinterested detachment and distance from all the players, such as business agents, fiscal advisers, and proxies in the commercial courts, who were more directly involved with the business world and who managed the “dirty work” of securities portfolios, debt recovery, and bankruptcy proceedings, among others.2 At this time, there was an embryonic bar specialized in advising corporations, but it was small in size, limited to dispute litigation, and often still coupled with generalist law practice for individual clients. In addition to this low degree of economic specialization among lawyers, multiple restrictions actually banned lawyers from taking a direct role in commercial companies whether as in-house legal counsel or as managing director or chair of the board of administrators. This intermittent relationship with market actors was mirrored by equally weak ties with the political and administrative elite of the Fifth Republic in France. While the legal profession had long been seen as the prime breeding ground for politicians, lawyers became rarer in politics as the “legicentrist” tradition of the Third Republic waned3 and the welfare state emerged, and the qualities of orator and legal competence lost much of their political value. At the end of the 1980s the République des avocats had declined to the point that less than 6 percent of parliamentary representatives came from the bar.4 In addition, lawyers had very few occasions to represent political or administrative actors in their work. The historical monopoly enjoyed by a specialized branch, the so-called avocats aux Conseils prevented members of the Paris bar from handling public law cases before the Conseil d’État. While the state occasionally appeared in cases before the ordinary courts, and called upon lawyers to defend it in courts, these cases most often involved recurrent and low-paying litigation related to traffic accidents, indemnity for unlawful temporary detention, or other dysfunctions of the justice system. In short, at the end of the 1980s, the legal profession remained specialized in civil and criminal litigation with few and circumstantial points of intersection with market actors or the state.
And yet, in the mid-1990s, a surge of intense activity started to unsettle the legal profession at its economic, political, and administrative fringes. A series of major trials for economic and financial crimes emerged in the 1990s involving some French major oil (the Elf scandal) or bank (the Crédit Lyonnais scandal) companies, which suddenly threw lawyers into direct contact with a great many top-level economic, political, and administrative leaders. At the same time, the neoliberal turn of state policies, in particular privatizations and public subcontracting, brought a growing number of cases straddling the boundary between public law and private law, leading law firms to broaden the range of their know-how, in order to accompany the state in its financial and stock market operations, and its new public-private partnerships. And as companies were becoming more aware that part of their market power was decided in the fast-growing regulatory state of French and EU agencies, business lawyers were called upon to go beyond the halls of justice and to frequent the bureaus of agencies and administrative departments in Paris and Brussels. It does indeed seem that French lawyers were renewing their ties with public affairs, but in a novel form that must now be analyzed. What is it that brought the legal profession back into close contact with the political and administrative worlds to the point that they are now enmeshed in a dense network of public-private transactions?
To understand the formation of this new collusive system, one must first follow the parallel and in many ways symmetrical transformations of the top ranks of the state and of the elite corps of the Paris business bar. At a time when the notions of new public management were beginning to permeate public policy, profoundly transforming state intervention in markets,5 a few business law firms reshaped themselves as veritable law enterprises that offered their clients a new palette of services, from legal advice to political and government lobbying.6 In the wake of this transformation new alliances and new relationships were cemented between government institutions and market players. Hoping to establish the legitimacy of the regulatory turn, the proponents of the neoliberal revamping of state interventionism sought support from market professionals, whether lawyers, bankers, or other private advisers. Symmetrically, the emergence within the Paris legal profession of a powerful barreau d’affaires (corporate bar)7 played out in the proximity that these new practitioners (avocats d’affaires) were able to establish with public institutions, both national and European; thereby they positioned themselves as brokers in a business world that was then discovering the critical importance of the “regulatory state” (government offices, regulatory agencies, courts’ new financial and competition sections, the European Commission’s Competition Directorate General, etc.) in the construction of market positions. The rise of these avocats d’affaires allows us to map out the development of a gray zone in-between a new segment of the public sector now acclimated to entrepreneurial dynamics and in the habit of calling upon outside consultants, and a pole of public affairs consultants that has been growing up close along the flanks of the state.
The Corporate Bar’s Public Affairs
The Paris bar has undergone a genuine cultural revolution in the past thirty years. A significant cluster, both competitive and international in scope, has emerged within the bar around what has come to be known as business law (droit des affaires). This entrepreneurial aggiornamento of a large segment of the profession is closely tied to the formation of a European and global market in corporate legal consulting.8 It has not, however, been constituted at a distance from public institutions, as is too often assumed. To the contrary, we argue that the invention of the avocats d’affaires happened in proximity to the state as these lawyers claimed a new role as an indispensable broker between companies and interest groups, on one side, and the ever more dense network of French and European political, legal, and administrative regulators on the other side.
The Invention of the Corporate Lawyer
It should be said that the odds were against the rise of such a professional figure in France; the syntagm avocats d’affaires was long considered an oxymoron, as the people involved in justice historically claimed a necessary distance from the business world. In the not so discreet social and professional hierarchy underlying legal specializations, corporate law was a little-valued activity, left to practitioners deemed to be the least equipped with a “juridical mind” and in most instances coming from the “lowest regions of the social space.”9 The representatives of the legal profession in France, heirs to a quasi-aristocratic conception of their role emphasizing disinterested detachment and noble vocation,10 were careful to confine the legal specialists closest to mercantile activity (in-house legal counsel, business agents, notaries, etc.) to the periphery of the profession. The bar association also imposed an array of restrictions and safeguards to circumscribe the commercialization of the law—a ban on advertising, fee-based remuneration as opposed to percentages—and generally prevent lawyers from participating in business activity.
The “Great Legal Profession” Project
In this context, the little group of practitioners who in the 1960s popularized the notion of avocats d’affaires, that is the most internationalized segments of the Paris bar and some highly visible representatives of the bar association such as its president René-William Thorp, were in many ways heretical figures.11 The background circumstances are important. The advent of the Fifth Republic in France had dealt a fatal blow to the République des avocats. The networks of influence maintained by the profession in the field of government and politics had already deteriorated in the period between the two world wars as the “legicentrist” Republican tradition had become the target of many political and intellectual movements heavily criticizing the many failures of both parliamentarism and legalism. The presidentialist turn of the Fifth Republic was made possible by a convergence between the charismatic leadership of General de Gaulle who sought to restore the power of the executive, and the modernist state elite drawn from the grands corps, often trained in economics, who sought to rationalize government action. This was the coup de grace. Lawyers were the first victims of the rise of new pathways into politics that came with the 1958 Constitution, and in particular the continuous rise of various categories of civil servants in parliamentary representation, from 15 percent in 1946 to over 50 percent in 1981.12 Yet the 1960s were also notable for another context—namely, the launch of Europe’s Common Market.13 The modernizers of the Paris bar mentioned above immediately seized upon the new context to call for the birth of a new type of law practitioner who would “no longer be exclusively a presenter of pleas, a stickler for procedure, a dealer in disputes and litigation,” but would engage in “an ongoing collaboration as advisor on the problems and projects of the heads of companies.”14 The emergence of this type of lawyer with a new legal specialty, corporate law, that assembled the diverse strands of legal knowledge with relevance for modern companies (tax matters, commercial statutes, penal law, etc.) consummated the break with the archaic framework of a code of commerce and trades that was deemed to be fit for the bygone era of shopkeepers.
This new professional project was promoted by a small Parisian fraction of the profession with ties to major corporations and set to follow these companies on the European road that was just opening up. This was the case of the Gide firm, created in 1957 by three lawyers, Pierre Gide, Jean Loyrette, and Philippe Nouel. The firm was one of the first to take advantage of a 1954 decree that permitted lawyers to create groups of associated partners. Breaking with the solo practice tradition of the profession, Gide created one of the first entrepreneurial structures (société civile professionnelle, or professional partnership company) equipped to advise major corporate groups, in Paris and then in Brussels, where the firm opened an office as early as 1967.15 Up until the late 1980s, Gide was the “national champion” and the only firm (with a couple of smaller ones such as Jeantet and Rambaud Martel, also present in Brussels very early on, or Bredin Prat) that could compete with large American and British law firms. Quite logically, it became a veritable “nursery” for future figureheads of the business bar (Jean Veil, Jean-Marie Burguburu, Didier Martin, Thierry Vassogne, Hubert Flichy, etc.) who took a dominant position in the legal and judicial affairs of major French companies.
The strategy followed by these “young Turks” of the business bar to conquer the market of corporate legal services gradually developed into the main reform agenda of the profession. Condensed into a Blue Book Report, this new professional project was actually endorsed in 1967 by the major professional union, the Association nationale des avocats. It called for “the elimination” of all historical competitors in the field of corporate law counsel from “in-house lawyers, legal or tax advisors, business agents, legal services of so-called fiduciary companies, trustees in commercial courts, business agents, goodwill and clientele brokers and real estate agents who prospect for clients and mediate between parties.” Instead, the report called for the creation of a “great legal profession,” “legal and judicial, liberal and monopolistic” that would be capable of fully assuming its role in the world of business.16 Espoused by the most internationally savvy segments of the Paris bar, the strategic goal of gaining entry to the corporate law market was the prime objective of the reformers. This enterprise was successful, supported by the ministry of justice who had been pushing for years for rationalizing France’s highly complex and fragmented system of legal professions shaped in the long history of professional turf.17 Important laws were passed in 1971 and in 1990 that profoundly transformed the contours of the profession, merging first with avoués (an old legal profession which had the monopoly of representing personal clients before specific courts) and then more importantly with the conseils juridiques (which had developed into large firms specialized in legal and tax counseling). The expansion of the profession’s perimeter resulted in an exponential increase in the numbers, from seventy-five hundred avocats in 1970 to over sixty-five thousand today.
Reform efforts to reposition the profession at the core of corporate counseling services have continued ever since. It was relaunched a decade ago by the report on legal professions (2009) commissioned by Nicolas Sarkozy to one of the principal figures of the Paris business bar, Jean-Michel Darrois. The report called for shortening the list of activities that are incompatible with the legal profession (in particular nonsalaried managing director of commercial companies).18 It was followed by another report on the international legal competitiveness of Paris law firms (2011), written by the former president of the French financial regulation agency, who recommended the merger of lawyers and in-house legal counsel, a highly sensitive issue with regard to the traditional professional ideals of independence.19 The so-called Macron Act for Growth, Activity, and Equal Economic Opportunity of August 6, 2015, adopted when Emmanuel Macron was still minister of the economy, was also a step in this direction, allowing lawyers to practice in multiprofession partnerships—for example, with their longtime competitors in the field of corporate counseling services, namely certified accountants (experts-comptables).
In the course of these successive reforms the figure of the lawyer-barrister whose practice is mostly centered in courts progressively gave way to that of the “Swiss knife lawyer,” a jack-of-all-trades capable of filling a broad array of functions: legal and tax adviser, public affairs specialist, lobbyist before French and European public institutions, as well as international arbiter, mediator, business and fiduciary agent, estate executor, nonsalaried managing director of a commercial company, not to mention member of Parliament or university professor. This progressive loosening of the many professional rules restricting lawyers’ activities is not merely a technical issue. At stake in the set of incompatibility rules is the possibility for lawyers to combine their professional activity with other positions in economic, legal, political, and academic fields, thereby endowing them with the social and political capacity to reach out into a variety of fields, and circulate in-between them. In other words, four decades of reform of the legal profession have considerably reinforced what Laurent Willemez has quite aptly termed the “fluidity” of the title of lawyer:20 that is, the capacity that it confers (in varying degrees depending on time and place) to, simultaneously or successively, work in and circulate across a great variety of social and professional milieux.21
A Corporatization of Paris Bar
The big bang that set in motion the creation of the French business bar came in the 1990s, when the profession of conseillers juridiques merged with the bar, and American and British law firms arrived in Paris.22 The December 1990 law stipulating a merger of the professions of conseils juridiques and avocats had its importance. It had the effect of opening the bar to tax specialists who had for years been organized around a handful of major legal counseling firms, such as CMS Bureau Francis Lefebvre and Fidal, each employing several dozen partners and employees. This in turn transformed the politics within the legal profession consolidating the segment of the bar working with corporate clients: a specific professional association was even constituted, the Association nationale des avocats conseils d’entreprises, which seeks to represent and voice at the Paris bar association the interests of this emerging group of avocats d’affaires.23
In parallel to the insertion of conseils juridiques into the profession, big American and British law firms made a much-noted entry (Linklaters, Allen & Overy, Freshfields, Sherman Sterling, among others). In the wake of renewed attention to the European single market agenda in the late 1980s, these firms opened offices in the major European cities—Paris, Milan, Frankfort, or Brussels.24 From the outset, they upended the quasi monopoly that had been the prerogative of the handful of French corporate law firms. In fact, the following years were marked by a long succession of enticements, poaching, and headhunting hires—in 1998 no fewer than sixteen partners left Gide—and regroupings and mergers; see the alliance between the French firm Rambaud Martel and the American firm Orrick in 2006, which ultimately led to the disappearance of certain historic firms from the Paris scene, such as Coudert Frères that was definitively shuttered in 2005.
This reshuffling was accompanied by a profound transformation of the models of worth and wealth within the legal profession. With the 1990 merger and the arrival of large US law firms, the new entrepreneurial values and managerial techniques were imposed in the Paris bar, bringing logics of profitability and business development at the core of the professional activity. A competitive recruitment market emerged in parallel, characterized by a steady flow of hires (between 150 and 250 partners change firms each year in Paris), a stark break with the traditional sedentary professional model.25 This shift, narrowing the gap between this segment of the profession and the corporate world, was further amplified by the flourishing of a new specialized press (Lettre des juristes d’affaires, Lemondedudroit.com, Décideurs Magazine, and other specialized sites) that brought to the Paris bar a whole new universe of representations typical of the business world.26 This press pays much attention to coups and other big deals, salutes firm mergers and alliances, and avidly chronicles transfers of partners in the Parisian law associates market. In addition, these new media contributed to the development of new criteria and procedures for the assessment of lawyers’ quality. Traditionally, the “set of rules (total prohibition on personal advertising) precluded the formation of a system of public information on lawyers’ qualities and fees.” With the rise of these new media and blogs, a vast array of guides, distinctions, and awards developed. Mostly constructed on the basis of reputational surveys of clients and members of the profession (Chambers, Legal 500, etc.), they challenged the traditional economy of a profession hitherto dominated by interpersonal and localized judgment of professional excellence.27
A business bar was born. Its perimeters can be outlined in different ways, depending on the type of clientele taken into account, the structure of the entity, or the degree of specialization in various types of disputes.28 But the basic structure is always the same, organized around three main poles, geographically concentrated in the Paris bar association as well as in the Hauts-de-Seine bar whose jurisdiction includes La Défense business district west of Paris where most large French corporations have their headquarters. The first pole is constituted by the former legal departments of the Big Four accounting and audit firms, which were formally separated from their parent entities in the wake of the Enron affair. Today, they remain concentrated in the Hauts-de-Seine bar that owes its reputation as the “premier business bar in France” to their membership.29 These firms include Ernst & Young with its eponymous law firm; Landwell & Associés, recently renamed PwC-société d’avocats; Taj, linked to the Deloitte firm; and Fidal, the French top business law firm in volume of billings as well as in the number of lawyers.30 The second pole of the business bar is made up of international corporate law firms, the great majority of which are Anglo-American (Baker & McKenzie, Cleary Gottlieb Stein & Hamilton, Clifford Chance, Orrick Rambaud Martel, Willkie Farr & Gallagher, etc.). There are also several “national champions” in this field, of which Gide and CMS Bureau Francis Lefebvre (close to a hundred partners each); like their Anglo-American counterparts, they are implanted in many countries, including a strong rooting in northern Africa, and count up to a hundred partners each. Third come medium-sized corporate law firms, most often French, with fewer staff and branches abroad, more specialized positioning, and most often led by the “patrician elite” of the Paris business bar, in the image of Bredin Prat, Darrois Villey, or Veil Jourde (between fifteen and fifty partners).31 While it remains difficult to determine the exact proportions of this business bar within the legal profession, there can be no doubt about its economic success. The total volume of estimated billings for the top one hundred business law firms has grown by 41 percent over the last decade, from 2.46 to 3.47 billion euros in 2013.32 In the “discreet hierarchy” of the legal profession, that connects fields of legal specialization (fiscal, financial crime, international, intellectual property, etc.), type of clientele, and level of revenue, this segment of the bar is placed at the top of the professional pyramid and possesses the rare possibility of combining good clients, substantial cases, and high income.33 As an ultimate sign of recognition, members of this business bar, long absent from bodies representing the profession and not often seen in professional electoral campaigns for the Council of Order, have gradually acquired positions of some importance, as seen in the election of Jean-Marie Burguburu as president of the Paris bar association (2002–2003), likewise Jean Castelain (2010–2011), whose careers are closely associated with this new facet of the profession.34
Between the Public Law of Business and the Private Business of Public Affairs
This portraying of the rise of Paris business bar would be incomplete if it did not take into account its many connections with the liberal and regulatory evolution of the state. In their upward trajectory, business lawyers soon encountered public institutions that were themselves in a sweeping process of change. Far from limiting the levers of public intervention, the regulatory turn taken by the state would yield above all a wider palette of instruments (including sanctions, restrictions, incentives, approvals, authorizations, nominations) through which public entities (whether French or European) determine the conditions under which private operators participate in various markets, in industry, banking, finance, health care, telecoms, and so forth. While this transformation was spread out over three decades, there was a rapid acceleration in the late 1990s, driven by the vast opening of competition of “public monopolies.”35 The public turn of EU competitive policy “away from its traditional concern with private conduct and toward the problem of government interference with the competitive process” resulted in an intense legislative activity promoting the liberalization of sectors such as telecoms, energy and transport, banking and finance, where public undertaking had been historically strong, particularly in France. The many EU legislative packages adopted from the late 1990s onward (railways packages in 2001, 2004, and 2013, postal service directives in 1997 and 2002, telecoms package in 2002, electricity sector in 1996, etc.) placed public and private firms on the same legal footing, from the point of view of authorization procedures, oversight of competition and state aid, regulations regarding mergers and acquisitions, financial operations, equity transactions, fiscal matters, and so on.
Along this hybrid public-private legal regime, a new form of public oversight of markets emerged through regulatory agencies in charge of securing undistorted competition. The development of this “public fabric of private markets” profoundly modified the structure of economic competition. It became just as important for big companies to weigh in on the rewriting of the rules and to protect, via adroit formulations, their market from new entrants as to pursue technological or commercial innovation.36 The major economic and financial operations of corporations (divestitures, mergers and acquisitions, licensing, etc.) are now also largely legal battles, conducted simultaneously before a variety of public institutions whether they are ministries, Commission’s Directorate General, regulatory agencies, specialized courts, and so forth. As they put the various political, administrative, and judicial poles of this public fabric of private markets at the core of their professional services to their corporate clients, law firms have played an essential part in the rise of both the regulatory state and the related new market for counsel and influence, at the crossroads of regulatory law and public affairs.
Between Regulatory and Compliance: How Corporate Lawyers Became State Experts
In a context of strong competition from other corporate counseling professions, notably certified accountants and notaries, the uninterrupted wave of legislation to liberalize and reregulate the economy has fueled an intense movement of professional innovation among Paris law firms. From regulatory to legal expertise in public-private partnerships, from transactional skills, lobbying, investor-state arbitration, and compliance to constitutional disputes, a whole set of new services developed from the 1990s onward.37 Across their diversity, these specialties have a common trait, in that they implicate lawyers’ capacity to be familiar with, to influence or advise the state, and more broadly the whole array of public institutions implicated in the regulatory turn of policies (the European Union, publicly owned companies, regulatory agencies, etc.).
The main law firms in Paris followed this trend by highlighting the multidisciplinarity that enabled them to handle this constant intermingling of public law and private law aspects in legal domains as diverse as environmental law, banking and financial services, energy infrastructure (electricity, nuclear power, etc.), transport (road, rail, air), or telecommunications. A whole new range of services was on offer as a complement to their more traditional expertise on merger and acquisitions, restructuring and insolvency, or tax. At the turn of the 1990s, public law departments started to blossom in corporate law firms. As says one partner, “public law is a full-fledged department in law firms. International law firms understood this quite well. All Paris firms now have a team devoted to administrative law, to public-private partnerships (PPP), to public law or regulatory matters.”38 The exact contours of these departments vary from one firm to the next of course, depending on the size of the firm and its areas of specialization. In addition to tax issues, most often a department in its own right, these departments may be called “competition, European law, and economic regulations,” “governments and public sector,” “regulatory,” “public and regulatory affairs,” “French public law and government affairs practice,” “major projects—PPP—public law of business,” or “public law, regulatory, and competition law.” But beyond these various circumstances and headings, Paris corporate law firms all now claim to be able “to handle the most complex situations involving private and public law, for business and institutional clients” and propose “services combining corporate and regulatory action.” They vaunt their full range of legal services, “pre-litigation and litigation, transactional and jurisdictional, national and international,” via “negotiation of complex projects on a European scale,” mastery of the multiple public, legal, and financial procedures that are specific to “complex public contracts” (drafting and monitoring contracts, project finance, dispute resolution, advice on restructuring, arbitration). They also present their unique capacity to anticipate “the stakes from the point of view of national and European competition authorities (State aid) and taxation”—all of which requires deep knowledge of the EU framework and “familiarity with negotiations with the European Commission and EU agencies.”
Along with this multidisciplinary legal expertise, knowledge of public institutions and their regulations have emerged as a specific subcategory of competence among business lawyers. This new specialty, often called compliance, has been promoted by a small group of avocats d’affaires within the Paris bar who have created a “Cercle de la Compliance” and, like Anglo-American law firms, vaunt the commercial advantages and reputational benefits obtained by companies when they adopt standards of “ethical and transparent governance” and show their good will with respect to norms of corporate ethics and social responsibility (CSR).39 The exact shape of this new expertise is still in flux, but it is always a matter of advising companies on public regulations and criminal law related to tax fraud, discrimination, health and safety standards, environmental issues, personal data, corruption and money laundering, business ethics, and so forth. The heavy sentences levied on French and German companies by United States regulatory authorities,40 and the growing number of international covenants and initiatives in these domains have spurred consolidation of new expertise based on knowledge of public standards. (Internationally, these measures include the Foreign Corrupt Practices Act adopted by the United States in the late 1970s, the UK Bribery Act of 2010, the G20 Anti-corruption Action Plan, and the anti-corruption clause of the International Chamber of Commerce, among others. Within France, the so-called Sapin II Law on Economic Crimes of November 2016 consolidated this “compliance turn” making the implementation of compliance programmes legally binding for firms, and creating a French antibribery agency to control the implementation of compliance programmes within companies).
In the palette of new public law services, law firms have also invested in an expertise in constitutional law in the context of the opening in July 2008 of a new legal procedure before the Conseil constitutionnel, the so-called Question prioritaire de constitutionnalité (QPC) that allows citizens and legal persons that are party to a lawsuit to ask the Conseil constitutionnel to review whether the law applied in the case is constitutional. It may seem surprising to come across the avocats d’affaires in the halls of the constitutional court at Palais-Royal. After all, this leading measure of the revised French constitution adopted in July 2008, came initially charged with vast political promise. By opening this new constitutional review procedure, it was expected that the debate over “rights and freedoms guaranteed by the Constitution” would no longer be left to opposition members of Parliament (who can request a constitutional review immediately after the vote of a new law) or constitutional law professors (who traditionally send memos to the Conseil). As civil society would be able to directly intervene before the Conseil constitutionnel, the latter would hence become the “protective shield of the essential rights of the Republic,” and even the instrument of a “continuous democracy” that shifts the balance of power to the benefit of the citizenry.
In matter of fact, this new constitutional stage was soon the scene of much activity. In just over five years, some ten thousand QPCs have been registered. Although few cases ultimately come before the constitutional court,41 it nonetheless rules on between sixty and eighty questions each year. A “constitutional reflex” has taken root. Few detailed studies have yet been conducted on this issue, but many signs indicate that business lawyers, more than any other group, have found this terrain to be propitious for their litigation strategies. Previously, they had no particular reason to take an interest in the Constitution or the jurisprudence of the Conseil constitutionnel. But the considerable potential of the new legal recourse rapidly gave them cause to rethink. Compared with ordinary legal procedures, the QPC is inexpensive, very simple, and extremely fast (under six months). And it can be formidably effective, going as far as pure and simple dismissal of the case. The EADS trial spectacularly revealed the potential of QPC procedure. This high-profile corporate inquiry brought German carmaker Daimler and the French media conglomerate Lagardère to criminal court on allegations of insider trading in the 2006 sale of shares in the European aerospace and defense group EADS. In October 2014, as the trial had barely started, EADS lawyers filed a QPC claiming that the “non bis in idem” principle (a principle drawn from article 8 of the French Déclaration des droits de l’homme et du citoyen)42 had not been respected given that the finance regulation agency had already settled the case in 2009, thereby leading to the suspension of the trial to wait for a decision of the Conseil constitutionnel in the case. In March 2015, Conseil constitutionnel proved defense lawyers right with the immediate effect that the EADS trial was definitively called off, suddenly bringing it to an end.
This spectacular cancellation of this decade-long set of judicial inquiries confirmed that the “Rights and freedoms guaranteed by the Constitution” were becoming an integral part of business lawyers’ litigation arsenal. These business lawyers did not stop short with a desultory appeal to economic freedoms (the freedom of enterprise, property rights, contractual freedom). They also frequently invoked the fundamental principles of the procedure, in the name of equality, or articles of the Declaration of the Rights of Man and the Citizen (1789), to contest variously the General Tax Code, or the Monetary and Financial Code, or the Labor Code. And here, there seem to be infinite possibilities as the QPC made it possible for the first time to question the constitutionality of all statute laws—in particular the ones that predated the Fifth Republic or had so far escaped the control of the constitutional court.43
While tax lawyers were initially the most active, the practice rapidly spread to all business law, leading to the emergence of a droit constitutionnel des affaires. Law firms were quick to include this specialty in the list of services offered to their clients.44 Armed with constitutional expertise that they fortified on occasion by recruiting former members of the Conseil d’État or the Conseil constitutionnel, these firms are now in a position to pursue long-term legal strategies, deciphering the inflections of this highly technical jurisprudence, immediately seizing the opportunities it offers, and now and again attempting innovative and even risky stratagems that might consolidate this droit public des affaires that they have so actively brought into existence.
As the state pursues its liberal and regulatory evolution, this new constitutional area of dispute around rights and freedoms offers in proportion a great many possibilities to private players, who can directly take part in redefining the role of public institutions in market governance.45 This reshapes the form of a constitutional trial, which had long been beyond the reach of the influence wielded by corporations and interest groups. Previously they had been obliged to channel their interests through the portes étroites, a term designating the informal practice of firms, interest groups, or NGOs to send legal briefs to the Conseil constitutionnel when Parliament or the executive branch solicited the Conseil’s verdict on a piece of legislation.46 Far from leading the Conseil constitutionnel to take on grand decisions on issues of human rights, the QPC seems to have above all created a new battlefield of microconstitutional issues with considerable legal and economic effects in the areas of taxation and corporate law, as well as on the capacity of government agencies (Ministry of the Economy, competition regulatory agency, etc.) to regulate markets.47 In giving business lawyers an additional opportunity to weigh on public regulation of the economy, “the QPC has little by little changed the balance of power between companies and public bodies,” as recently noted by a member of the Conseil d’État.48
In this new context, with public regulation at the heart of law firms’ expertise, the patrician elite of the Paris bar had some cards in their hands, starting with their long-standing ties with regulators. By virtue of their social and professional proximity to national political, administrative, and judicial elites, the first generation of Paris avocats d’affaires (Jeantet; Loyrette; Bredin, Prat; Darrois; Veil; among others) were in good position to take advantage of this public turn of the bar.49 Along the path of their trajectories, often starting with their prestigious high schools, and then higher education, in particular at Sciences Po, and the select clubs of the power elite (for example Le Cercle interallié or Le Siècle, to which Jean Loyrette and Jean Veil belonged), they established strong personal ties that often extended later on into the terrain of legal counsel and defense. For instance, Jean-Michel Darrois, founding partner of one of the principal business law firms in Paris, is a longtime friend of former prime minister and current president of the Conseil constitutionnel, Laurent Fabius, whom he knows from their days at Sciences Po, and Darrois took on his defense in the late 1990s in the contaminated blood products trial before the Cour de justice de la République (ad hoc court established to try cases of ministerial misconduct). He also willingly acknowledges that he has long been close to Alain Minc, a longtime influential member of the French banking elite, who “really helped” him by giving his name “as the first choice when he was asked for the name of a lawyer.”50 While it may be difficult to systematically account for the role of social capital in securing one’s central position in the business bar, family capital can act as a proxy. It is hard not to note the pervasive presence among prominent avocats d’affaires of key French legal dynasties that possess, in various proportions and degrees depending on the generation and siblings, experience in public service, the private sector, the judiciary and academia. Suffice it to consider the family pedigree of this managing partner of an important Paris law firm whose parents were both members of the Conseil d’État, whose grandmother was a prominent international law professor, and great-grandfather, president of the International Court of Justice. Another illustration is a partner in the Jeantet firm, one of the most prominent competition law lawyers in Paris, who is the sister of a former minister of cultural affairs, daughter of a member of the Conseil d’État and granddaughter of a law professor who was one of the four judges at Nuremberg. No wonder why the professional press points at the fact that “her proximity to public players is one of her assets.”51
However, as legal and public affairs counseling professionalized, this capital of relationships in the heart of the political, administrative, and judiciary elite was no longer sufficient. The arrival of US and UK law firms challenged the traditionally central position of the patricians of the Paris bar. The former could claim a competitive advantage on their mastery of the various national and international sites of public regulation; and a capacity to wield influence across the whole normative process, from drafting legislative bills and amendments, to the implementation of rules via lobbying of government ministries and regulatory bodies, and ensuring legal assistance and representation in national and European courts. As these law firms positioned themselves as veritable hubs, offering multiple avenues of contact with regulators (whether judges, legislators, or bureaucrats), they contributed to the professionalizing of the traditional roles of counsel and influence.52 The historical business law firms of the Paris bar initially coldly spurned the more aggressive lobbyist strategies of the multinational law firms that were so contrary to the traditional mores of the profession, but they soon had to adapt to the new reality. They chose to highlight their competence in terms of niche and luxury products, describing themselves variously as the “Rolls-Royce of competition” or “a house of legal haute couture [sic],” and in turn engaged in the new lobbying practices developed by American and British lawyers. Symbolizing this shift, in May 2011, five of the most solid firms of the Paris business bar (August & Debouzy, Granrut Société d’avocats, Jeantet associés, Lexidia Société d’avocats, and Vogel & Vogel) formed the Association des avocats lobbyistes (AAL) “to encourage and foster lobbying practices in the profession.” The same year lobbying was given full recognition and included in the activities listed in the “national internal rules” of the profession, following the impetus given by business lawyer Jean Castelain, as he became president of the Paris bar association.53
And so, the new multidisciplinary range of services grew to include “administrative and parliamentary lobbying in the interest of private businesses as well as public entities, such as local authorities.” One of the founders of AAL, a partner in one of the principal business law firms in Paris, explains lobbying by lawyers in these terms: “Providing counsel to a client stops with the case file; it is legal advice. Lobbying goes beyond the lawyer/client relationship. When I advise a client I give information on the legal framework of an investment, I draw up contracts, I negotiate the contract with a third party. When I tell a client that we are going to lobby for their issue, it goes much farther. There is not just one interlocutor—the lawyer for the other party. Instead there are multiple targets: we tell the client we are going to tackle them all together—we attack the politicians, the administration, other interest groups. This means ‘attack’ in quotes: we concentrate our forces to persuade them. Lobbying is an extension of legal counsel.”54 One firm proposes “to intercede with administrative offices, the government and Parliament before legislation and regulations are issued, to construct legal arguments in support of our clients’ interests, to present them to authorities and transpose them into proposals for bills or amendments.” Another firm with a worldwide presence presents its public policy department in these terms: it “regularly advises clients on the European and British legislative process, starting with the choice of procedure, timing of legislation, stages of parliamentary work and the institutions involved. It is essential to understand the context in order to influence emerging legislation. Political intelligence, monitoring, the legislative process and drafting of documents, corporate strategy and risk evaluation, early knowledge of regulatory developments, the capacity to alert clients to the implications of government proposals, etc.” It should be said however that the professionalization of lobbying has in no way impeded the more traditional forms of influence, which remain in place, often entrusted to former political figures who are called upon to act as intermediaries and to ensure the conciliation that may be necessary when negotiating and executing large international contracts. The press has reported on these special quasi-diplomatic assignments carried out by figures who are often former ministers, for instance Pascal Clément, who joined a firm whose principal partner stated that the new arrival “excelled particularly in defending the interests of French companies and major corporate groups in their sometimes rocky relationships with certain foreign States.” Likewise, the connections of former prime minister Dominique de Villepin or former Élysée secretary general at the time of Sarkozy’s presidency, Claude Guéant, both of them turned business lawyers, have proved to be useful to French companies, accompanying them in international negotiations, notably in the context of mediation between French companies and foreign states, especially with French-speaking Africa, in strategic sectors such as energy, oil, and telecommunications55.
Credentializing the Corporate Bar’s Public-Spiritedness
As the proximity between corporate law firms and political, administrative, and judicial authorities has become a prime field for competition between firms, they have developed full-blown strategies to build a reputation of “public-ness.” These strategies range from snatching up former regulators (political figures, high-level civil servants, judges, etc.) to vaunting the civic merits of the firm (support for the sciences, philanthropic action, pro bono work, etc.), or taking an active part to public debates through memos, op-eds, bill proposals, and so forth.
There is no point in distinguishing here between brand development and acquisition of professional expertise and so on. In the environment of the business bar, the symbolic and the economic are closely intertwined. As a matter of fact, the race to acquire symbolic capital attesting to a civic and disinterested stance is one of the areas in which economic competition within the business bar has grown more intense.56 The international law firms have invested heavily in building a reputation in the public sector, hoping to appear well connected to national regulators, on the same footing as the Paris firms. Even the choice of geographic location in the French capital marks their desire to display closeness to the seats of power. Looking for legitimacy on the political and administrative plane, the Anglo-American firms set up offices in palatial surroundings that vie with those of the government, and turned to the most prominent architects (such as Wilmotte and Portzamparc, among others) to fit them out. Like White & Case, Clifford Chance opened its office on the Place Vendôme in 2010, just opposite the Justice Ministry building. Thus it was just a symbolic step across the street when Laurent Vallée, a member of the Conseil d’État, left the firm in April 2010 to become the head of Civil Law Department at the ministry. In another example, DayJones rents premises that used to house the United States consulate at the Place de la Concorde, and greets clients in the room where Napoleon’s foreign affairs minister, Talleyrand, died, as one of the firm’s partners proudly told us.
This quest also includes action to showcase the civic spirit and public virtues of the firms. While this type of engagement used to be individual and discreet, and directly correlated to the respectability inherent to the professions, investment in a disinterested civic image and reputation is now handled by the firms themselves, and is an essential feature of their signature. In the way of the Hogan Lovells firm that displays its civic commitment, business law firms sponsor the arts, make donations to humanitarian groups, contribute to action to protect the environment, and support scientific research by funding dissertation awards or endowing chairs in academic institutions. French firms pursue the same ends, like the Gide firm that has created its own “Gide Pro Bono” fund and emphasizes its corporate social responsibility policy. In this way, lawyers’ civic commitment typical of the barreau classique (legal aid, income-scaled fees, etc.) has been replaced by pro bono policies imported from the world of American law firms, and which are part and parcel of the firm’s communication policy.57
In this light, we can see clearly why being chosen to advise the state also has critical symbolic importance for these firms. By building close ties to public institutions, these law firms gain access to a new clientele, of course, but they also construct a valuable reputation that has currency, and at a good price, with their private-sector clients. In 1986, when the Gide firm was hired to help the Ministry of the Economy draft privatization bills, its founding partner Jean Loyrette complained of the financial conditions of this collaboration: “all these operations are not very profitable; the Treasury is stingy,” he confided to Le Monde, but he later recognized that “these operations are prestigious, and we hope for returns.”58 The publicity accorded to experience in the public sector, an essential aspect of law firms’ commercial strategy, is intended to attract private companies who deal with public entities, just as much as it is addressed to an institutional clientele looking for legal services. This is seen in the fact that the firms’ websites and promotional literature underscore their knowledge of and work for the public sector. White & Case proudly announces a partner “who is regularly consulted by public authorities for presentation of new legislative bills”; Clifford Chance states that “the firm is highly appreciated and serves a broad range of eminent clients, including several European States, and [advises] the European Financial Stability Facility on sovereign debt”; Gide proudly claims to be “the habitual advisor of the State and major public establishments.” This display of public expertise is now reflected in the internal organization of the firms, which have progressively made room for poles devoted to “Public and regulatory affairs,” “Public law,” “Public economic law and competition law,” “Public, regulatory, and competition affairs,” “Compliance,” somehow mirroring the very structure of French and European public institutions. Some firms speak of their “regulatory activity,” others of their services related to “the French Directorate General for Competition, Consumption and Repression of Fraud,” or to “representation before French regulatory authorities (Agence de régulation des communications électroniques et des postes, CRE, Conseil supérieur de l’audiovisuel, ARAF, AFSSAPS, CEPS, etc.).” Still others mention their expertise in global governmental relations, or “counsel and representation of sovereign States,” the basis for “assistance to countries, their government ministries and public entities” with respect to debt, privatization, and “regulatory system” restructuring. Positioning themselves as veritable “auxiliaries of public service,” to quote one firm’s website, the firms claim to be equipped to advise states in all their steps of organizational transformation and policy (selling shares of state-owned companies, creation of new structures, and modernization of procedures at all levels—statutes, agencies, and human resources).
Building a reputation of proximity with political, administrative, and judicial elites appears as a key competitive advantage. Consider this introduction that opens the Veil Jourde website: “What do people think of us? That we know how to handle the most complex situations, and that we know a great many public and private-sector players who direct or oversee business activity.”59 Or the rankings and awards based on opinions expressed by professional peers (The American Lawyer, Legal 500, Chambers Europe, etc.); for instance the Bredin Prat tax department is credited with “unparalleled transaction expertise and excellent relations with fiscal authorities.”
It is in this framework that in the 1990s firms began to compete vigorously to recruit from among the ranks of political and administrative elites.60 A survey of all moves and transfers by partners shows that for the period 2006–2014 more than one-third (34 percent) of outside hires came from political and administrative sectors, a quite substantial proportion, even when compared to the 52 percent of hires from the legal departments of private companies.61 Once again, the Gide firm is a precursor in this respect; in the last two decades, the firm has hired an inspecteur des finances, four members of the Conseil d’État, a member of the Cour des comptes, a former president of the Paris Administrative Court, a former minister of foreign affairs, a former deputy secretary general of the political party, a president of the then majority party in the National Assembly, and three former members of the cabinets of EU commissioners. This accumulation of political and administrative capital has no doubt contributed to the singular status of the Gide firm, which has become over the years “not a law firm, but an institution,” in the words of one of our interviewees (interview no. 14, man, Conseil d’État, ENA graduate, public law).62 Initially, the fact of taking on an énarque (graduates of the École nationale d’administration, ENA) was most likely a matter of distinction, reserved for the most prominent firms; one of our respondents noted the following about a big Paris firm in the 1990s: “[the founder of the firm] wanted a member of each of the elite corps. He already had the Cour des comptes, he wanted someone from the Conseil d’État, and he had his eye on a fellow from the Inspection des finances,” France’s three state grands corps. Progressively, the hiring of a high-level civil servant became a mandatory step for the firms that claimed to be full-service law firms: “Nowadays, for a certain number of firms, they have to have their conseiller d’État, and clients demand it as well. I’ve heard clients, they want there to be one in the team” (interview no. 9, man, Conseil d’État, ENA graduate, public law).
BOX 1. / August & Debouzy, a regal law firm
August & Debouzy is often presented as a success story of the Paris bar. The firm started with six lawyers in 1995, and now numbers over one hundred. The firm was born out of an atypical association between a thirty-three-year-old ENA graduate, Olivier Debouzy, and a young business lawyer, Gilles August, educated at ESSEC business school and in an American law school. Debouzy had a brief career at the Foreign Affairs Ministry and at the Atomic Energy State Agency; he died prematurely in 2010. The founders both claimed to be inspired by “the Washington model of law firms,” and presented “administrative and parliamentary lobbying” as one of their prime areas of competence:63 August & Debouzy represents the interests of companies before French and EU administrations and legislators, and “proposes to companies its array of cutting-edge competence in all fields of corporate law, public law and lobbying.”64 As the firm’s website indicates, one of its specific assets has been the systematic recruitment of high-level politicians and bureaucrats: “thanks to the various areas of expertise and competence of its lawyers, several of whom have held political or administrative responsibilities, August & Debouzy advises companies and professional groups, monitoring the legislative and regulatory changes that affect their business or activity.”
The son of a former close associate of former French president Jacques Chirac, and “firmly right-wing,” Gilles August had Claude Chirac (Jacques Chirac’s daughter) as a client when he was still at his first firm. More recently, he was “close to Dominique Strauss-Kahn, and lawyer for (former minister) Jérôme Cahuzac.”65 As for his partner, Olivier Debouzy, member of the Le Siècle elite club, he maintained close ties in the political and administrative milieux throughout his career as lawyer. A member of the consultative council at RAND Corporation Europe (1999–2006), he participated in the work of the expert committee that produced the government’s white paper on nuclear power in 1993, and was a member of the group of experts for the white paper on defense in 2008; at one point, the press mentioned him as a possible director of the Direction générale de la sécurite extérieure.66 This strong implantation in the defense industry enabled the firm to handle, for instance, the transformation of the DCN (French industrial group specialized in naval defense) into a private company backed by public capital, in 2003. At the reception held at the Palais de Chaillot for the fifteenth anniversary of the law firm in 2010, guests could rub elbows with chief of defense, Admiral Edouard Guillaud, with Admiral Alain Oudot de Dainville, chairman of ODAS (a formerly state-owned turned private company in charge of promotion of French exports in the domain of defense, security, and high-tech fields), “the reorganization of which had been piloted by August & Debouzy,” and with Charles Edelstenne, CEO of Dassault Aviation (an international French aircraft company with strong specialization in defense).67
The firm’s “Public, regulatory and environment” pole also came to be over the years a privileged point of entry through which high-level civil servants joined the business bar. Among these were three ambassadors, a former prime minister, a former director of the cabinet of the minister of defense, a former prefect, a former cabinet director to President Nicolas Sarkozy, and so on. Far from being hidden, this back-and-forth circulation is emphasized as a distinctive trait of the firm. As put forward on the law firm’s website: “August & Debouzy has always chosen lawyers from a broad range of backgrounds: former heads of companies, ministers and ambassadors, high-level civil servants, etc.” This rich diversity of profiles, strategically chosen among conservative as well as socialist ranks, has “shaped the firm’s signature: to give our clients more than just the law.”68
The major international and Paris business law firms have since then continually had recourse to those who are in a position to have special access to politics and government, and who have firsthand knowledge of courts’ internal dynamics (whether judicial, administrative, constitutional, European). The gains to be had by hiring former public decision makers are not limited to the address books compiled in the course of political and administrative functions, as is often asserted. These hires are also part of promotion and communication strategies that aim to bolster the image of the firms “that can afford an énarque.” When in 2009 Orrick Rambaud Martel hired Alain Juillet, a former civil servant in charge of economic intelligence, shortly after having welcomed the former minister of justice Pascal Clément, the international firm announced its strong Paris implantation: “these profiles ideally fill out our service offer, and anchor our brand more firmly at the local level.” Likewise, the powers of influence and persuasion usually attributed to former public decision makers can prove especially useful for the new lobbying activities undertaken by business law firms. The hiring of high-level civil servants also signifies the purchase of the technical competence acquired in the course their careers—legislative drafting, regulatory practice, oversight missions, jurisdictional functions, and so forth. In short, law firms have many good reasons to hire these “escapees”: access to political and administrative networks, expertise in bureaucracy, authoritativeness, brand reputation, and so on. Again, it would be pointless to distinguish between skills and technical know-how, and similar, that might be truly needed by the firms, and what might be purely symbolic and reputational, as the two facets are continuously intertwined in the specific economy of law firms in that changing context. In interviews, many civil-servants-turned-lawyers cite in particular their capacity to understand how an administration works and to navigate through it, and their practical mastery of the rules and mores specific to the various sectors of public action. It is not solely a “commerce of relationships [but also] a deep knowledge of administrations and their psychology. One does not approach an administration at the top of one’s voice, for example” (interview no. 19, man, Conseil d’État, ENA graduate, public law). This is emphasized by a former tax inspector: “It would be a mistake to think that they are buying an address book. This might be the case for certain very political profiles, but I don’t have a political profile, I have a technical profile, and it is not at all my address book that they bought…. And it would be an error to do so, because in the administration people do move around quite a lot, and someone’s address book, I don’t know how long it would be valid, but certainly no more than three to five years at the most…. Internal knowledge of the administration, how it functions, is what counts … knowing how competences are distributed, sometimes along quite fine lines, between two different offices. Knowing, for instance, that an issue will fall within the purview of two offices in the central administration. That means, right off the bat, that it will take more time for the administration to react. And that is something you can say straight away to your client” (interview no. 11, man, ENI graduate, tax law). All these facets, from practical knowledge to address book and specific expertise all converge to underscore the increasing convertibility of the currency of resources and titles acquired in the service of the state in the business law.
All in all, the business bar that has grown up in the past two decades was not constituted against the state, but close alongside the very structure of the state, directly linked to its transformation, as a sort of exoskeleton of the regulatory state. Far from being exclusively entrepreneurial, the business bar continuously takes great pains to display its “public-ness” whether by promoting public virtues, exhibiting privileged relationships with government agencies, claiming an intimate knowledge of the political and administrative apparatus, and so forth. This public turn of the business bar has been all the more far-reaching in that it has played out in the time of the neoliberal turn of state policies.
The Public Sector’s Private Business
The “Golden Age” of France’s interventionist state is already a thing of the past. The hold that the state exercised over the French economy up to the end of the 1980s, through a substantial public sector in industry and banking, is no more. A first wave of privatization dealt a blow in August 1986, amputating sixty-five enterprises from the state (in particular banks and insurance companies), followed by a second in July 1993, with partial divestiture of twenty-one public companies in the field of transports (Air France), banking (BNP), energy (Elf), and by many others ever since. The deployment of the European single market certainly amplified this movement, triggering a powerful wave of liberalization of the telecommunications, energy, and transport sectors, and constraining the ability of the state to grant financial aid to “its” enterprises. Henceforth, the validity of state aid as defined by the European Commission and the Court of Justice of the European Union has been assessed according to the yardstick of the “private investor’s test,” in the name of strict equality between public and private operators. The very status of établissement public, a key legal category for public entities with commercial activities, is itself problematic in the eyes of EU institutions because it is assimilated to a form of state aid by the “implicit State guarantee” it conveys.69 In addition, the European Commission’s powerful Competition Directorate General consolidated a doctrine of “competitive neutrality” whereby state-owned undertakings had to be taken to the same competitive standards as private companies (for the sake of securing a level-playing market) with very few and restrictive exceptions that can be made in the “public interest.”
However, these multiple realignments do not signify that public institutions have withdrawn from the economic sphere. Rather, they are the sign of a profound redeployment of the forms and justification of public intervention, which are henceforth more focused on regulation of private markets and oversight of eventual market distortion, than on coordination of a mixed economy.70 In the wake of the December 1986 Government Order (ordonnance) on free competition, public institutions now are positioned above all as guardians to enforce “respect for the rules across the entire economy, without exception.”71 This new relationship to markets does not exclude Parliament and the central administration. But it does tend to circumscribe their role, transferring prerogatives to regulatory agencies that are maintained beyond the reach of the administrative hierarchy and parliamentary control. These agencies have indeed established privileged relationships with market actors, and with professional intermediaries, whether lawyers or consultants. In their quest to distance themselves from the traditional administrative style, and to establish a reputation of independence with respect to their former ministries’ departments, the new agencies such as the finance regulation agency, the Autorité des marchés financiers, or the competition agency, the Autorité de la concurrence, just to name the two most important ones, have increasingly relied on the regulated sectors and on their legal representatives. The same is true for a good number of administrations themselves, eager to establish their credibility as market operators on an equal footing with the others, in public procurement as well as equity and financial operations. To do so, they have recourse to market intermediaries to secure their interventions in the private sector. In sum, far from being a free-standing phenomenon, constructed in a vacuum, the regulatory turn of the state has spawned new patterns of relations with professions and actors in the private sector, first and foremost business lawyers.
The recourse to private consultants by the government and, even more so, by a vast array of public entities (EU institutions, state-owned companies, regulatory agencies, and local government) is a first tracer of this neoliberal turn of policies. Truly enough, political science literature has long held that the grands corps in France put up resistance to the intrusion of consulting firms in the realm of the state, in contrast to the situation in Britain according to this analysis. Indeed, for a long time the French state made very little use of private consultant services. This does not mean that the state did not rely on a multitude of private channels and connections to regulate markets. Throughout the nineteenth century, Paris Chamber of Commerce and Industry, a body representing private firms, was the main supplier of economic expertise to public institutions such as the Conseil d’État, the Parliament, and government administrations that did not possess their own expertise.72 But the law and lawyers have long remained marginal in this consulting market. Ministries might on occasion call upon the expertise of professors at the Paris law faculty, notably in civil and commercial law, or in the framework of large-scale private arbitration proceedings.73 Likewise, and still today, the legal representation of the state before international courts is entrusted solely to the litigation department at the Quai d’Orsay.74 As for the State Judicial Office (Agence judiciaire de l’Etat), the legal department in charge of representing the state before ordinary tribunals, this entity uses avocats only for a few recurrent cases of litigation.
Business Lawyers as State’s Agents
With the rising wave of consulting activity, however, the dikes began to crumble in the early years of the twenty-first century. Very little data is available that would allow us to assess the magnitude of the phenomenon, as amply shown by the difficulties encountered by the Cour des comptes itself when it sought to draw up an inventory of private consulting services employed by the state.75 Famously, the Directorate General for Modernization of the State has entrusted various firms, including Capgemini, with the task of monitoring the implementation of its broad review of public expenditure from 2007 onward (the so-called Révision générale des politiques publiques).76 But more important, what the 2014 report of the Cour des comptes eventually showed was that the government relied on outside consultants—law firms, financial advisers, or public affairs consultancies—in a large variety of domains from audit and evaluation to strategic financial counsel, communication, legal expertise, and so forth.
A full-fledged history of the state’s recourse to private counseling remains to be written. However, privatizations certainly played a central role in fueling the rise of a whole counseling industry. The first act of this new deal opened in the autumn of 1981.77 The Socialist Party had just come to power, and undertook a program to nationalize the banking and industrial sectors on a scale not seen since the Liberation. Weakened by its electoral defeat and internal divisions, the political right went into the parliamentary battle to fight the nationalization legislation in unfavorable circumstances. Giving it their all, the right wing called upon the lawyer Jean Loyrette, whom we saw fifteen years earlier in our account, when he had just founded the Gide Loyrette Nouel firm. Meanwhile, he had become one of the best specialists of the new equity techniques born in the late 1960s, especially in the field of takeover bids. When consulted by the leaders of the opposition in Parliament, his proposal was to take the dispute over the fair compensation of the “expropriated” private shareholders before international jurisdictions. In a fat two-volume opus entitled Le Problème des nationalisations, which would later form the basis for the opposition’s filing against the nationalization law before the Conseil constitutionnel, Loyrette denounced the insufficient indemnities offered to shareholders, and threatened the new socialist government with multiple international trials if the foreign subsidiaries of nationalized groups were not correctly valued.78 It was on this legal and financial terrain that the right wing won its only victory at the time, obtaining substantially higher remuneration for shareholders, in particular foreign shareholders, in the legislation that was ultimately passed in February 1982. This first success put Jean Loyrette in the cockpit to steer privatization, five years later, when the conservatives came back to power. One year before the 1986 parliamentary elections, the right-wing parties commissioned him to write a preliminary outline of a privatization bill. Published in book form entitled Dénationaliser: Comment réussir la privatisation, it became the “Bible” of the right’s platform.79 The omnipresence of the Gide firm did not go unnoticed, and even before the right was returned to power the socialist MP Michel Charzat remarked that it would be “a shame to see masters Chirac, Barre and Giscard d’Estaing relinquish their power to the Loyrette firm, when it is the future of the French economy that is at stake.”80 When the overall process of privatization started in 1986, Gide was in a central position to act as legal counsel to the treasury, to banks (Saint-Gobain), and insurance companies (Paribas, AGF) in the process of privatization, acting “on both sides, in all operations.”81 Seven years later, in July 1993, when twenty-one government-owned companies were privatized, the privatization market had become an established practice within Paris business bar. While Jeantet and Gide advised on the 10 billion euro privatization of Renault, Anglo-American law firms also played a critical part, in particular Shearman & Sterling and Linklaters & Paines, which had developed in the meantime strong French practices. Given the amount of money involved, and the magnitude of the change for France’s economy, these first two waves of privatizations constitute an inaugural scene bringing business lawyers, together with private bankers, at the core of state’s economic and financial operations. By their involvement in the many legal aspects of privatization, business lawyers not only played a central part in this phase of profound transformation of the state’s relation to markets, but also made a spectacular entrance at the very heart of the French state.
Subsequently, they would be closely associated with each of the stages of undoing the state’s derogatory regime both in economic terms with regard to its position as sole shareholder, and in financial terms with regard to the state’s financing circuit which rested on a dense network of public banks and deposits.82 In 2002, a specialized body was created, the State Holdings Agency (Agence des participations de l’État, APE), under the aegis of the French treasury department, but endowed with functional autonomy to manage the state’s holdings.83 This sealed the transformation.84 With the APE, the entire “holdings doctrine” shifted, from a vision of “public holdings as an alternative to private property, to a notion of these holdings as transitory aid for the development of the private sector.”85 This new doctrine went hand in hand with new relationships with the banking and financial sectors. Hoping to be “recognized as a fully professional player,” in the words of the agency’s director general, but without in-house financial and legal expertise to rival that of the main market operators (private banks, law firms), APE pursued a policy of hiring staff from the private sector, to beef up the agency’s expertise in the areas of European norms regarding state aid, contract law, and divestiture techniques.86 In the same way, the APE drew upon professionals to establish its reputation and the credibility of its financial operations and attract investors; these partners, in particular law firms, soon proved to be indispensable for the successful sale of public assets. APE turned to a small group of business law firms, specialized in privatization as well as equity law, for its main operations (sales of assets, capital increases, mergers):87 Bredin Prat advised APE on the sale of France Telecom shares in 2007;88 DLA Piper worked with the agency to float the Areva group (French multinational company specialized in nuclear power) on the publicly traded market in 2011; more recently, in 2014, Shearman & Sterling oversaw the sale of roughly eight million shares of Airbus Group, and so on. It is not only for public assets that the state increasingly has recourse to market intermediaries to secure its equity operations. As the traditional state-centered circuit of debt financing was dismantling, market mechanisms have become the sole lever for all public authorities (state and local authorities). As a consequence, the public banking pole—from the public investment bank (Banque public d’investissement, Caisses des dépôts et consignations) to the strategic investment funds (Fonds stratégique d’investissement)—has developed approaches to financing that are more and more similar to market conditions. Relatedly, they have turned to private banks and law firms to get the necessary expertise as well as the legitimacy that would guarantee that these public institutions act as authentic private markets players.
Beyond financial and equity operations, law firms also play an increasingly strong role in the domain of public procurement. The voting of the public-private partnerships (PPP) statute law in 2004 opened up a new breach, and profoundly transformed what had been the prime province of the state alone and the prerogatives of the public authority—that is, public tenders and government contracts. This new legislation allowed all sorts of public entities (local authorities, central state administrations, public health care facilities, health services provided by major public infrastructure companies) to entrust private consortiums with missions related to financing, design, construction, and operation of large investments, in exchange for payments from the public purse over the amortization period of the private investment. These were notably investment projects for hospitals and universities, but also for major sporting and cultural venues.89 The share of PPP in public investment, on the order of 5 percent of total investment, and the number of agreements signed—the state contracted eleven PPP in 2012, and local authorities twenty-six—might at first seem limited, but “[their] qualitative influence is felt more and more.”90 These PPP agreements were almost all related to “strategic” state projects, from the Defense Ministry’s so-called Pentagon project, construction of stadiums for the Euro soccer competition in 2016, or the building of one unique huge courthouse complex in Paris, and so on.
The emergence of this new market in public procurement brought with it more widespread recourse to consultants, tasked with the accounting, financial, and legal assembling of these singularly complex projects, often undercutting the architects and construction firms that had been in the forefront in the past. Due to the scope of these projects and the highly technical nature of the financial and legal tools involved, as well as the welter of stakeholders (project owners, banks, insurance companies, construction and public works companies, subcontractors, etc.), a small number of specialized experts—accountants, tax advisers, bankers, lawyers—progressively came to occupy a central position.91 This trend was confirmed in 2005 when a PPP support task force was created under the aegis of the ministry of economy. This support team of “about ten experts” from “different backgrounds in the public and private sectors, all with varied professional experience including stints in business or in financial institutions” was charged with providing expertise to central government administrations, and to local authorities if they request it.92 In this array, the role of law firms expanded as the legal and judiciary risks involved in this type of public procurement became more evident. This tendency was strengthened by a ruling of the Conseil constitutionnel in 2008, that held that PPPs were an exception to state practice, and therefore required a prior legal and financial assessment showing them to be necessary. As the decision created a significant risk of cancellation or revision of contracts in the courts, it actually contributed to bolster the role of lawyers in cementing these public-private deals.
Public Reliance on the Private Legal Expertise
This transformation, of which we have cited just a few markers, outlines a nascent dependency of public entities on legal counsel from outside law firms. It is as yet difficult to accurately quantify this expansion of the private legal counsel market. We can, however, grasp the diverse nature of the public entities that habitually have recourse to outside counsel, and the range of domains where this service now seems to be obligatory for the state. A first cross-sectional view comes from a sample we have compiled of two hundred cases in which a public person hired a Paris business lawyer, between 2009 and 2012 (see figure 1). This sample is no doubt imperfect: it was compiled from media reporting on high-profile cases published on the professional business law website lemondedudroit.com; it overrepresents large firms, which are better equipped to publicize their big deals, and therefore is made up only of the cases that these firms sought to highlight.93 Nonetheless, it is a preliminary indicator of the penetration of private legal counsel.
This illustrates the broad range of public entities that today use the services of Paris law firms. Far from being limited to the central administrations of French government, these include many public establishments (sports federations, etc.), local authorities, and enterprises in which public bodies have holdings, as well as foreign states, often former French colonies,94 and European and international public organizations. The growth of local legal services has also been spurred by the development of PPPs that transformed the public procurement practices of territorial governments and public establishments. When in 2012 the Nord-Pas de Calais regional government decided on a socially responsible bond issue, it turned to Clifford Chance for counsel. When the public service delegation of the Palais Omnisport Paris Bercy (a major indoor sports arena and concert hall) was renewed in 2012, the City of Paris engaged the expertise of Bird & Bird. When plans were made by local authorities for a new Orly Airport–Versailles–Nanterre metro line, they consulted the legal teams of Orrick & Rambaud (2012). This list goes on. Paris business lawyers are also active across a cluster of European Union public entities. These include the European Financial Solidarity Facility, for emission of 5 billion euros in EU aid to Portugal (Clifford Chance Paris, 2011); the European Investment Bank, for assistance with implantation of the so-called “Juncker Plan” European Investment Fund in France (Gide, 2015); and counsel to the French government in its talks with EU competition authorities regarding renewal of existing hydropower concession agreements (Orrick Rambaud Martel, 2012), and so on.
Source: Graph based on data from http://www.lemondedudroit.com
State: government, ministries, etc.
State-owned undertaking—energy: EDF, GDF, ERDF, Areva, EADS, Safran, etc.
State-owned undertaking—transport and telecoms: France Telecom, Air France, RATP, SNCF, La Poste
Public banking pole: national organizations (e.g., Caisse des dépôts, Banque publique d’investissement, etc.) and extranational (e.g., European Investment Bank, European Financial Stability Facility, etc.)
Public institutions: universities, regulatory agencies, public establishments, France TV, etc.
Local authorities: local governments and sports federations
Keeping the reservations mentioned above in mind, this sample also reveals the broad diversity of public activities that would now require private legal counseling. Recourse to law firms for judiciary defense of public entities is without doubt still a marginal phenomenon, excepting certain cases involving state-owned undertakings before the EU Court of Justice, and arbitration cases in major international contracts. Legal counsel is a different matter entirely, and is singularly present in the financial and equity operations of public entities in French and foreign markets. All the major banking and equity operations of the state and public enterprises (divestiture, capital raising, bond issues, public buy-out offers, etc.) now mobilize the services of law firms. This is the case, for example, for operations by the Fonds d’investissement stratégique (acquisitions, minority share holdings, etc.), France’s sovereign wealth fund, that involve various firms in Paris (Hastings, 2011; Herbert Smith, Orrick Rambaud Martel, and Willkie Farr & Gallagher, 2012, etc.). Other examples are the Caisse des dépôts et consignations (France’s major public sector financial institution) and ad hoc public banking structure (Banque publique d’investissement), which have also secured their market operations by recourse to private legal counsel. Major corporations with public shareholders are in the same situation, as seen in these examples: the sale by Renault of 14.9 percent of the capital of Volvo, for 3 billion euros (Skadden, 2010); bond issues by France Telecom for 2.5 billion euros (Jones Day, 2009); the initial public offering of France’s nuclear power multinational group, Areva (DLA Piper, 2011); sale of EDF holdings (state-owned electric utility company) to supermajor oil company Total (Racine, 2012), and so on. Other cases involve more classic recourse to expertise in negotiating and drafting contracts, generally international (creation of joint ventures, concession agreements, certification applications, etc.). One can also cite: a joint venture in the Middle East created by Aircelle, a subsidiary of Safran and Air France (Baker McKenzie and Gide Loyrette Nouel, 2010); talks between Orange and the shareholders of Dailymotion (August & Debouzy, 2015); French investments in Africa, such as France Telecom’s purchase of 100 percent of mobile service operator Congo China Telecom (CCT) in the Democratic Republic of Congo (Gide, 2011); Air France’s creation of the new airline Air Côte d’Ivoire (August & Debouzy, 2012). Last, public procurement and especially PPP also have an important place in legal counsel to public entities—all the more significant in that they involve many different types of public clients, from ministries and local authorities to public establishments such as hospitals, universities, airports, and so on. This segment spans major public works of strategic importance: major infrastructures such as the much-contested (and now abandoned) concession contract for the Grand Ouest airport at Notre-Dame-des-Landes that involved many firms (Jean Latournerie et associés, Willkie Farr & Gallagher, Yves-René Guilloui Avocats); the construction of the new Defense Ministry building (Salans, Orrick Rambaud Martel, Hogan & Lovells, etc.); the opening of the judiciary complex in the Batignolles quarter of Paris.
In short, the presumed immunity of the French state, which was described as putting up fierce resistance to outside counsel, is no longer a valid assumption. This view fails to account for the pivotal role that business law firms have acquired as the state has taken a neoliberal turn.
The New Government of Markets
The view of this new public-private collusion would, however, be too narrow if it was only limited to direct recourse to private legal expertise by public entities. As the state has pursued its regulatory change, a new government of private markets has emerged that positions professional advisers, notably business lawyers, as key liaison agents.
The most characteristic feature of this new government of markets is the proliferation of regulatory agencies from the 1980s onward. The former leading divisions of the Ministry of the Economy and Finances (the General Directorate for Competition Policy, the Tax Department, the Treasury) have ceded an essential parcel of their powers to general—the Autorité de la concurrence, the Autorité des marchés financiers, or sector-specific authorities—the Autorité de régulation des communications électroniques et des postes (ARCEP), the Commission de régulation de l’énergie (CRE), the Autorité de régulation des activités ferroviaires (ARAF),95 etc. This proliferation is all the more significant in that these agencies now have substantial powers of authorization, investigation, legal action, injunction and sanction, and oversee crucial sectors such as insurance, banking, rail transport, telecommunications, health care, broadcasting, and so forth. The Autorité de la concurrence and its staff of four hundred now supervises, in lieu of the Competition Directorate General at the ministry of economy, corporate mergers and buy-outs (roughly two hundred cases a year), punish illicit practices that violate competition law, and issue over a billion euros in fines each year in sectors like mobile telecommunications, construction and public works, transport, and so on. The considerable span of this expanding web of independent public regulators is also seen in the fact that the Conseil d’État itself, the supreme administrative court, recognizes that “their ‘signature’ sometimes inspires greater confidence than that of the State.”96
In the course of building up their credibility as regulators independent from bureaucratic circuits of command, these agencies have developed new ties with professionals in the regulated sectors, and singularly by working through business lawyers. This can be seen first of all in the channels through which agencies acquire sectoral expertise that is relatively independent of government ministries. This knowledge has been forged by maintaining a dense network of contacts in the regulated sectors—by recruiting market professionals in the staff, by developing a network of joint working groups, by organizing multiple hearings, colloquia, and seminars, and so on. Securing a reputation of independence also implied that the agencies would display new standard operating procedures different from the conventional administrative style. The progressive import of a quasi-judicial style with public hearings and contradictory procedure played an integral part in this breakaway from state’s bureaucratic ethos. In all agencies, the investigation-sanctions pole has been progressively separated from the regulatory pole, and is organized around quasi-judiciary proceedings that are designed to bolster the rights of the defense.97 This double mutation, in expert and judicial styles, is today an essential marker of the autonomy acquired by these agencies vis-à-vis the historical administrative departments. Former head of the financial regulation authority, the Autorité des marchés financiers, who would later practice as a business lawyer, Jean-Pierre Jouyet says as much when he underscores that the creation of the agency in 2003 was the “condition sine qua non to regain market confidence” and “to consolidate the attractiveness of the Paris marketplace”: “technical knowledge, specialization and rapidity then went hand in hand with the fundamental procedural guarantees granted to the companies under investigation.”98
Business lawyers played an essential role in this metamorphosis. As the natural defenders of due process and sector-specific experts, they became essential partners in the rise of regulatory agencies. As recently remarked by Bruno Lasserre, current vice president of the Conseil d’État and former chair of the Autorité de la concurrence, “the development of competition law has shaped a new profession on the European scale. Competition law is less and less a unilateral force, based on sanctions, and increasingly a more contractual form of law, where lawyers will take on the role of experts. Examples are the commitments procedure (to correct a behavior), the no-dispute-of-grievances procedure (transactional procedure), the clemency procedure (partial or total immunity in exchange for the company’s cooperation in the investigation). These options provide lawyers with new opportunities.”99 In point of fact, the latter are now assiduous visitors at regulatory agencies. They come to defend their clients, and each case can mobilize up to several dozen lawyers as was the case for example in a dossier devoted to interbank commissions in 2012 before the Autorité de la concurrence that brought an armada of no less than twelve law firms. Business lawyers are also key protagonists in the small ecosystem of working groups, conferences, and publications that have grown up within or along the edges of regulatory authorities. Lawyers’ careers may upon occasion take them to these regulatory agencies, either as interns (students of the Paris bar’s vocational training school can in fact earn credit for an internship in a regulatory agency) or as directors in legal departments and executive committees.
And yet, these agencies have not turned into courts. While they have only a distant relationship to the administrative units they have replaced, they remain quite singular. The period preceding the creation of France’s first competition agency in 1986, when lawyers went “to plead [their] cases before the departments of the Ministry of the Economy” is long past of course, but the ground rules of these spaces are still hybrid constructions, at the crossroads of judicial and bureaucratic rationale.100 In fact, the Conseil d’État has itself marked the limits of this judiciarization process, in the case of the Autorité des marchés financiers stating that these agencies cannot claim the status of national jurisdiction but must content themselves with the term of tribunal in the meaning of article 6 of the European Convention on Human Rights (ruling of February 4, 2005, Société Gsd Gestion). Above all, the comportment expected in regulatory hearings is very different from that of courtroom proceedings. As one business lawyer puts it, “fancy oratory and eloquence are out of place,” and lawyers act as law technicians rather than as pleaders of a cause: “here there are no judges in robes, no courtroom, no court recorder,” notes a journalist from the specialized press.101 He adds, “before the Autorité de la concurrence as before the Autorité des marchés financiers, everyone is seated around the table without any decorum whatsoever.” The emblematic question of the robe, initially raised by lawyers, was quickly set aside. Indeed, the law practiced is itself of a new kind. Administrative law with its classical notions of public authority, sovereignty, exorbitance, submission, and the general interest, on which the state had hitherto founded its specific role with regard to the private sphere, has given way to a continuous flow of norms and standards, from the EU in particular, that have sketched out the shape of a new hybrid field of law, called either droit public des affaires or droit public économique. This transversal body of regulatory law, blurring the traditional summa divisio between public law and private law, applies indifferently to private companies and to public enterprises, and subjects the state to the same obligations as are imposed on actors in the private sector.102
Truly enough, not all levers of action held by the state have been affected in the same way by the process of agencification. With respect to the regalian prerogative of taxation, the Commission des infractions fiscales, an administrative body charged with reviewing major cases of tax fraud continues to bear the marks of administrative style (nonmotivation of opinions issued, absence of contradictory testimony, etc.). Nonetheless, the ways the fiscal administration interacts with companies have undergone profound change, once again creating a new opening for professional counsel. Over the past two decades, a new culture of dialogue and transaction with companies has been promoted within the tax inspection body in charge at the ministry of economy of controlling France’s largest corporations with a view to establishing a new climate of “business confidence.”103 This new marching order of the tax administration favored measured application of fiscal law through negotiation and correction rather than sanctions. This “relationship of trust” as the administration itself called it, puts tax lawyers in a brand-new and strategic position as indispensable intermediaries between the state and the large taxpayers.104
The transformation of the state ever since the mid-1980s is not merely a renewal of policy tools and procedures. By plunging into the marketplace and embracing the regulatory paradigm, public institutions have in practice woven new collusive ties with the companies and intermediaries present in the market. In the end, far from evolving at a distance or in opposition to each other, the business bar and the regulatory state seem in fact to be partners. While the figure of business lawyer was invented in large part via its claim to be an expert in public regulation, the new regulatory government of markets forged its own credibility and instruments for intervention in the new system of alliances with market professionals, in particular business lawyers. This interdependence has shaped a space where public and private are contiguous, along the porous fringes of the regulatory state and the unfixed boundaries of the marketplace. In this steadily expanding twilight zone in which law firms and business lawyers have acquired a central position, a new form of revolving door has been invented.
1.Famously coined by French sociologist Lucien Karpik in his history of the French legal profession, the barreau classique refers to a specific model of professional excellence that solidified in the nineteenth century and remained mostly intact until the 1970s whereby lawyers (generalists, solo practitioners, socialized in courts practice) claimed to defend the public (against state arbitrariness) and promote political liberalism in great criminal cases and trials: Lucien Karpik, French Lawyers: A Study in Collective Action, 1274–1994 (Oxford: Oxford University Press, 2000).
2.Lucien Karpik speaks of the “explicit rejection of the marketplace.” Adding nuance to this view, it should be recalled that some well-known lawyers (who in some cases were also members of Parliament) handled the legal affairs of major companies, for instance Raymond Poincaré, but for the most part this merchant side of the profession remained in shadow.
3.“Legicentrism” refers to the legal and political doctrine which had its heyday in the late nineteenth century and promoted the centrality of statute law and of parliamentary sovereignty: see Nicolas Roussellier, La force de gouverner: Le pouvoir exécutif en France, XIXe–XXIe siècles (Paris: Gallimard, 2015).
4.Gilles Le Beguec, La République des avocats (Paris: Armand Colin, 2003); Mattei Dogan, “The Mandarins among the French Elites,” in Elite Configurations at the Apex of Power, ed. Mattei Dogan (Leiden: Brill, 2003).
5.Philippe Bezes, Réinventer l’État: Les réformes de l’administration française, 1962–2008 (Paris: Presses Universitaires de France, 2009).
6.See the classic work by Yves Dezalay, Marchands de droit: La restructuration de l’ordre juridique international par les multinationales du droit (Paris: Fayard, 1992).
7.As the historical constellation of the barreau classique was fading away from the 1970s onward, a barreau d’affaires (corporate bar) emerged characterized by specialized legal practices centered on big business clientele (as opposed to personal clients) and developed in large practices with strong entrepreneurial culture. Karpik, French Lawyers.
8.See in particular: Glenn Morgan and Sigrid Quack, “Institutional Legacies and Firm Dynamics: The Growth and Internationalization of British and German Law Firms,” Organization Studies 26, no. 12 (2005): 1765–85.
9.On this, see Anne Boigeol and Yves Dezalay, “De l’agent d’affaires au barreau: Les conseils juridiques et la construction d’un espace professionnel,” Genèses 27 (1997): 49–68.
10.Osiel, “Lawyers as Monopolists, Aristocrats, and Entrepreneurs.”
11.For one of the very first formal descriptions of this new professional figure, see Jean-Claude Goldsmith, L’avocat d’affaires (Paris: Béranger, 1964).
12.Frédéric Sawicki, “Classer les hommes politiques,” in La profession politique, XIXe–XXe siècles, ed. Michel Offerlé (Paris: Belin, 1999), 135–70.
13.Vauchez, Brokering Europe.
14.Fernand-Charles Jeantet, “Le rôle de l’avocat, conseil des sociétés,” La Vie judiciaire, December 28–January 2, 1965, 1.
15.“Ubiquistes avocats,” Le Monde, November 25, 1986.
16.Alain Tinayre and Denis de Ricci, eds., Au service de la justice: La profession juridique de demain (Paris: Dalloz, 1967).
17.One of the singular features of these struggles at the fringe of the profession lies in the fact that the government (and in the ministry of justice) is the final arbiter of the “scope” of professional monopolies. This is illustrated by the intense lobbying spawned by the 1991 legislation merging the professions of legal adviser and lawyer. See Antoine Vauchez and Laurent Willemez, La justice face à ses réformateurs (1980–2006): Entreprises de modernisation et logiques de résistances (Paris: Presses Universitaires de France, 2007).
18.The report also advocated fewer bans on lawyers’ activities (in particular with nonsalaried managing director positions in a commercial company) to enable lawyers to hold their own with “competing vendors such as banks, insurance companies, secondary health insurance providers, legal advisory companies, debt collection companies, accounting firms and business management consultants.”
19.On these mutations, see also Christophe Jamin, “Services juridiques: La fin des professions?,” Pouvoirs 140 (2012): 33–47.
20.Laurent Willemez, “La ‘République des avocats’: 1848; le mythe, le modèle et son endossement,” in La Profession politique, XIXe–XXe siècles, ed. Michel Offerlé (Paris: Belin, 1999), 201–29.
21.Antoine Vauchez, “Une élite d’intermédiaires: Genèse d’un capital juridique européen (1950–1970),” Actes de la recherche en sciences sociales 166–67 (2007): 54–65.
22.On the general transformations of the legal profession, see John Flood, “Megalawyering in the Global Order,” International Journal of the Legal Profession 3 (1996): 169–213.
23.“Création d’un ‘grand syndicat’ du barreau d’affaires,” Les Échos, February 24, 1992.
24.Susanne Lace, “Mergers, Mergers Everywhere: Constructing the Global Law Firm in Germany,” in Legal Professions: Work, Structure and Organisation, ed. Jerry Van Hoy (Greenwich: JIA Press, 2001), 51–75.
25.Data compiled by DayOne consulting firm which tracks “trends in the law marketplace,” essentially based on a close reading of the professional press. See “Dix ans de mouvements d’avocats associés,” http://www.village-justice.com/.
26.Powell, “La nouvelle presse juridique et les métiers du droit.”
27.On this, see Lucien Karpik, Valuing the Unique: The Economics of Singularities (Princeton, NJ: Princeton University Press, 2010).
28.Christian Bessy, L’organisation des activités des avocats (Paris: LGDJ, 2015).
29.“L’irrésistible ascension du barreau des Hauts-de-Seine,” La Gazette du palais, September 18, 2012.
30.In 2014, Fidal had twice the gross billings (322 million euros) and twice as many staff (1,200 lawyers) as the second largest law firm in Paris.
31.On the notion of the patrician elite as applied to the legal profession, see Michael Powell, From Patrician to Professional Elite: The Transformation of the New York City Bar Association (New York: Sage, 1988).
32.These figures are drawn from annual questionnaire surveys of law firms conducted by the professional journal Décideurs stratégie finance droit (July–August 2014): 70–87.
33.On this “discreet hierarchy,” see John Heinz and Edward Laumann, Urban Lawyers: The New Social Structure of the Bar (Chicago: University of Chicago Press, 2005).
35.The public turn of EU competition policy characterizes the period when the European Commission moved “away from its traditional concern with private conduct and toward the problem of government interference with the competitive process” and targeted more specifically public monopolies: David Gerber, Law and Competition in Twentieth Century Europe: Protecting Prometheus (Oxford: Oxford University Press, 1998), 382.
36.Y. Dezalay, Marchands de droit.
37.Unless otherwise noted, quotations in this chapter are drawn from a corpus of documents compiled from law firms’ websites consulted between 2014 and 2017.
38.Fabrice Cassin, “Entretien: Que sont-ils devenus?,” La Gazette de l’Institut de droit public des affaires 16 (2016).
39.On the genesis of this market in deontology, see Murielle Cœurdray, “La conversion d’un savoir judiciaire en un capital symbolique au service de multinationales françaises,” Droit et société 72 (2009): 411–32.
40.See the 2014 case in which BNP Paribas was fined 60 million euros by the United States for fraudulent use of public aid.
41.Questions prioritaires de constitutionnalité have to be sent first before the Conseil d’État or the Cour de cassation who act as filters and only send the “most serious cases” over to the Conseil constitutionnel.
42.Article 8 of the 1789 Déclaration des droits de l’homme et du citoyen states that: “The Law must prescribe only the punishments that are strictly and evidently necessary; and no one may be punished except by virtue of a Law drawn up and promulgated before the offense is committed, and legally applied.”
43.Before the institution of the Question prioritaire de constitutionnalité in 2010, the constitutional review exclusively concerned statute laws that had just been adopted by the Parliament (so-called a priori review before promulgation), thereby impeding retroactive questioning of the constitutionality of the statute laws.
44.“Les avocats mobilisés sur la Question prioritaire de constitutionnalité,” Lettre des juristes d’affaires, June 7, 2010.
45.See “Question prioritaire de constitutionnalité et droit des affaires,” Les Petites affiches, September 2011.
46.In an interesting journalistic investigation of the so-called portes étroites practice, Mathilde Mathieu reports that no less than twenty-four briefs were submitted by law professors and law firms with regard to the so-called Macron Act for economic growth and equal opportunity of August 6, 2015. Mathilde Mathieu, “Dans les coulisses du Conseil constitutionnel, cible des lobbies,” Médiapart (blog), October 12, 2015.
47.On this, see Stéphanie Hennette-Vauchez, “Les droits et libertés que la constitution garantit: Quiproquo sur la Question prioritaire de constitutionnalité?,” Revue des droits de l’homme 10 (2016).
48.Charles Touboul, “Juger l’action économique, c’est encore agir sur l’économie,” Revue française de droit administratif 1 (2016): 83.
49.On the notion of the patrician elite in the legal profession, we refer readers to Powell, From Patrician to Professional Elite.
50.Jean-Michel Darrois, quoted in Christophe Perrin and Laurence Gaune, eds., Parcours d’avocat(e)s (Paris: Le Cavalier bleu, 2010), 43.
51.“La fidèle: Loraine Donnedieu de Vabres,” Lettre des juristes d’affaires, December 15, 2008, 46–50.
52.Laurens, Bureaucrats and Business Lobbyists.
53.“Les avocats et le lobbying: Un gisement d’opportunités,” Le Monde du droit, February 1, 2008; Philippe Portier, “Des avocats revendiquent (enfin?) leur rôle de lobbyistes,” Option Droit & Affaires, June 8, 2011.
54.Interview quoted in Coraline Schornstein, Les Avocats-lobbyistes: Émergence, légitimité, incertitudes (Master’s thesis, Université Paris 2, 2015), 53.
55.Emeline Cazi and Ariane Chemin, “Un businessman nommé Villepin,” Le Monde, January 11, 2013.
56.On these markets in which symbolic valuation plays an essential role, see Julien Duval, “Les enjeux symboliques des échanges économiques,” Revue française de socio-économie 10, no. 2 (2012): 13–28.
57.Robert Granfield and Lynn Mather, eds., Private Lawyers and the Public Interest: The Evolving Role of Pro Bono in the Legal Profession (Oxford: Oxford University Press, 2009). On pro bono in France, see Charles Bosvieux-Onyekwelu, “Profit, temps d’emploi et plus-value morale: Le travail pro bono dans les multinationales du droit en France,” Socio-économie du travail 60, no. 4 (2019).
58.Jean Loyrette quoted in “Ubiquistes avocats,” Le Monde, November 25, 1986.
59.Home page of the Veil Jourde law firm website, accessed December 2018.
60.Frédéric Foucard, “Le recrutement de personnalités chez les professionnels du droit,” Droit et patrimoine, May 1993, 74.
61.The survey conducted by the DayOne consulting firm is not without bias, because it is based solely on data from the professional press, which tends to underrepresent “escapees” from technical sectors and pay more attention to hires from the upper echelons of the administration and political positions. See DayOne, “Dix ans de mouvements d’avocats associés,” 2015, https://www.dayone-consulting.com/fr-actualites-paris/10-ans-de-mouvements-davocats-associes/.
62.Excerpts from our interviews are tagged to indicate the gender of the correspondent, the state professional graduate school (École nationale d’administration, École nationale des impôts), possible membership to Conseil d’État, and specialization in law practice (tax, competition, etc.).
65.“Gilles August et associés, un cabinet très politique,” Le Monde, December 21, 2012.
66.Le Point, April 19, 2010.
67.La lettre A, October 8, 2010.
69.See Dominique Ritleng, “L’influence du droit de l’Union européenne sur les catégories organiques du droit administratif,” in Traité de droit administratif européen, 2nd ed. (Brussels: Bruylant, 2014), 1063–88.
70.See particularly Henry and Pierru, “Les consultants et la réforme des services publics.”
71.Bruno Lasserre, president of the Autorité de la concurrence, hearing before the Senate Inquiry Commission; Jacques Mézard, Un État dans l’État: Canaliser la prolifération des autorités administratives indépendantes pour mieux les contrôler. Paris: Sénat, 2015.
72.Lemercier, Un si discret pouvoir.
73.Antoine Vauchez, “Quand les juristes faisaient la loi: Le ‘moment Carbonnier’ (1963–1977), son histoire et son mythe,” Parlement(s) 11 (2009): 105–15.
74.The French state differs in this respect from other states like Great Britain or the Netherlands, which frequently entrust their defense to law firms. See Marie-Pierre Granger, “From the Margins of the European Legal Field: The Governments’ Agents and Their Influence on the Development of European Union Law,” in Lawyering Europe: European Law as a Transnational Social Field, ed. Antoine Vauchez and Bruno de Witte (Oxford: Hart, 2013), 55–74.
75.Cour des comptes, Le Recours par l’État aux conseils extérieurs: Rapport à la commission des finances de l’État (Paris: La Documentation française, 2014).
76.On this point we refer to the work by Philippe Bezes and Julie Gervais listed in the bibliography.
77.Cf. Mathilde Goanec, “Quand les avocats d’affaires écrivent les lois,” Le Monde Diplomatique, January 2013.
78.Rapports de Gide-Loyrette Nouel, Le problèmes des nationalisations, 2 vols.; and Problèmes constitutionnels et de droit international posés par le projet de loi de nationalisation, recours devant le Conseil Constitutionnel. 1981–1982. In National Archives, Ministry of Justice, Sous-direction du droit économique, File “Nationalisation.”
79.Paul Fabra, “Vademecum de la privatisation,” Le Monde, April 8, 1986; “Comment réussir la privatisation,” Le Monde, September 29, 1986.
80.Michel Charzat, at the National Assembly, “Compte rendu intégral” [Full minutes], session of 19 November 1985, p. 4506.
81.Jean Loyrette quoted in “Ubiquistes avocats,” Le Monde, November 25, 1986.
82.See Benjamin Lemoine, “The Politics of Public Debt Financialisation: (Re-)Inventing the Market for French Sovereign Bonds and Shaping the Public Debt Problem (1966–2012),” in The Political Economy of Public Finance: Taxation, State Spending and Debt since the 1970s, ed. Marc Buggeln, Martin Daunton, and Alexander Nützenadel (Cambridge: Cambridge University Press, 2017), 240–61.
83.The Agence des participations de l’État, still one of the largest bodies managing public shareholdings worldwide, has a portfolio of eighty-one companies for a value of around 100 billion euros in four different sectors (energy, manufacturing, services and finance, transport).
84.Bruno Bézard and Éric Preiss, “L’agence des participations de l’État,” Revue française d’administration publique 124 (2007): 601–14.
85.Agence des participations de l’État, Rapport de l’État actionnaire (Paris: La Documentation française, 2009).
86.Bézard and Preiss, “L’agence des participations de l’État.”
87.Cour des comptes, Le Recours par l’État aux conseils extérieurs.
88.Lettre des juristes d’affaires, July 2, 2007.
89.At the end of 2016, 60 percent of PPPs contracted by the state pertained to construction, 18 percent to the energy and waste treatment sector, 10 percent to transport, 6 percent to New Information and Communication Technologies, and 5 percent to sports and cultural facilities. (See the website of the PPP support task force at the Ministry of the Economy and Finances for a complete list of the sixty-two state public-private partnerships [PPP] and the 162 PPPs contracted by local authorities since December 2006, https://www.economie.gouv.fr/fininfra).
90.Mission d’appui aux partenariats public-privé, Rapport d’activité 2012 (Paris: La Documentation française, 2013), 10.
91.See Deffontaines, “Les consultants dans les partenariats public-privé.”
92.Mission d’appui aux partenariats public-privé, Rapport d’activité 2012 (Paris: La Documentation française, 2013), 4.
93.Here, I would like to thank Charlotte Ducouret, intern at the time at the CESSP Research unit, who helped me gather and process these data.
94.On the Paris bar as a hub for the African legal market, see Sara Dezalay, “Lawyers in Africa: Brokers of the State, Intermediaries of Globalization; A Case-Study of the ‘Africa’ Bar in Paris,” Indiana Journal of Global Legal Studies 25, no. 2 (2018): 639–69.
95.See appendix 2 for a brief presentation of these regulatory authorities.
96.Conseil d’État, Rapport annuel: Les autorités administratives indépendantes (Paris: La Documentation française, 2001), 82.
97.In 2003, the structure of the financial regulator (Autorité des marchés financiers) was transformed as the legal action units (investigation) and the decision-making entity (sanctions) were uncoupled.
98.Jean-Pierre Jouyet, “Le pouvoir de sanction de l’Autorité des marchés financiers,” in Études à la mémoire de Fernand-Charles Jeantet (Paris: LGDJ, 2010).
99.“Réception de M. Bruno Lasserre, président de l’Autorité de la concurrence, et de Virginie Beaumeunier, rapporteure générale de l’Autorité de la concurrence,” Bulletin de l’ordre des avocats de Paris, December 10, 2013, 3.
100.“L’art de plaider devant les autorités de régulation,” Lettre des juristes d’affaires, December 15, 2008, 18–19.
102.Ségolène Barbou des Places, “La summa divisio en droit communautaire,” in L’Identité en droit public, ed. Xavier Bioy (Paris: LGDJ, 2010).
103.Alexis Spire, “La domestication de l’impôt par les classes dominantes,” Actes de la recherche en sciences sociales 190 (2011): 58–71.