Designation of the Bâtonnier in a Dispute between Lawyers: the Time Limit for Referral Finally Clarified

Imagine: you are a lawyer in Grasse and you have a professional dispute with a colleague from Cannes. Who decides? The law provides that a bâtonnier from a third bar (neither Grasse nor Cannes) is appointed. But from when does the four-month period for referring the matter to him run? A question that may seem technical, but which has immense practical consequences: if you exceed the deadline, the bâtonnier is no longer competent and you lose all recourse. This is exactly the problem that the Court of Cassation decided on 6 December 2017.

In this case, a lawyer from Lille (belonging to an inter-bar company) and a lawyer from Rouen are in dispute. The bâtonnier of Rouen is appointed as the third bâtonnier. But when was he seised? The losing party challenges the decision, arguing that the bâtonnier was divested because the four-month period had expired. The Court of Cassation must decide whether the period runs from the sending of the registered letter or from its receipt by the bâtonnier.

What few people know: the answer depends on a decree of 1991 (Decree No. 91-1197 of 27 November 1991) which regulates the legal profession. Article 179-2 provides for the appointment of a third bâtonnier, and Article 179-5 sets a four-month period. But Article 142 of the same decree indicates how to refer the matter to the bâtonnier: either by a request handed in against receipt to the secretariat of the bar, or by registered letter with acknowledgement of receipt. The Court of Cassation, in a logical reasoning, considered that the period runs from the act of referral (the filing of the request or the sending of the letter), and not from the date on which the bâtonnier becomes aware of it. In short, it is the date that counts, not the actual receipt.

The facts: a story that happens every day

Mr X, a lawyer in Lille, is a partner in an inter-bar company (a structure that groups together lawyers from different bars). He has a dispute with a colleague from the Rouen bar. In accordance with Article 179-2 of the decree of 27 November 1991, a bâtonnier from a third bar is appointed: the bâtonnier of Rouen is chosen. But note: the bâtonnier of Rouen is also the bâtonnier of one of the parties (the lawyer from Rouen), which could raise an issue of impartiality. Yet the law permits this because the bâtonnier is appointed as a third party, not as the bâtonnier of his original bar for this dispute.

On 2 February 2015, the Lille lawyer refers the matter to the bâtonnier of Rouen by registered letter with acknowledgement of receipt. The bâtonnier receives the letter on 4 February. He renders his decision on 15 June 2015. However, if counted from 2 February, the four-month period expires on 2 June. If counted from 4 February, the period expires on 4 June. In both cases, the decision of 15 June appears late. But the question is: was the bâtonnier still seised?

The Lille lawyer, dissatisfied with the decision, brings a nullity appeal, arguing that the bâtonnier was divested because the four-month period had elapsed when he ruled. He argues that the period runs from receipt of the letter by the bâtonnier (4 February), and that the decision of 15 June is out of time. But the Court of Cassation must interpret the texts.

The reasoning of the court — dissected

The Court of Cassation, in its judgment of 6 December 2017 (No. 16-26.784), decided: the four-month period provided for in Article 179-5 of the decree runs from the referral, i.e. the filing of the request or the sending of the registered letter (Article 142 of the same decree). In other words, it is the date of the act of referral that starts the period, not the date of receipt by the bâtonnier.

Why this choice? The Court relies on the text: Article 142 states that the bâtonnier is seised "by a request filed against receipt with the secretariat of the bar of which the appointed bâtonnier is a member, or by registered letter with acknowledgement of receipt addressed to him". The verb "addressed" indicates that it is the sending that counts. In short, as soon as you post the letter, the period begins. This secures the litigant: he controls the date of sending, whereas he does not control the date of receipt (postal strike, bâtonnier's absence, etc.).

The Court therefore rejects the argument of the Lille lawyer. It confirms that the decision of the bâtonnier of Rouen, rendered on 15 June, was made within the four-month period (since the referral was on 2 February). This is a confirmation of previous practice, but with a welcome clarification. It is neither an evolution nor a reversal, but a strict interpretation of the text that reinforces legal certainty.

Note, however: the Court does not rule on the merits of the dispute, only on the temporal competence of the bâtonnier. This means that if you are in a similar situation, you must be vigilant about the date of sending your request.

What this changes for you — concretely

This decision has practical implications for lawyers in conflict, but also for litigants who might be involved in proceedings before the bâtonnier (for example, in a dispute between lawyers over fees). Here is what you need to remember:

• Landlord: If you have a dispute with your lawyer over fees, the bâtonnier can be seised. Now, know that the four-month period runs from the date of sending your registered letter. Do not delay! For example, if you send your request on 1 March, the bâtonnier must rule before 1 July, even if he receives your mail on 5 March.
• Tenant: In the context of a dispute with a lawyer (for example, for an error in a lease deed), the same principle applies. You must act quickly as soon as the conflict arises.
• Purchaser: During a property sale, if your lawyer makes a mistake, the bâtonnier can be seised. Keep proof of the date of sending your request (recorded delivery with acknowledgement of receipt).
• Co-owner: If a lawyer for the management company or a co-owner is involved, the period runs in the same way.

A concrete example: in Grasse, a lawyer has a dispute with a colleague from Vallauris. The bâtonnier of Cannes is appointed. The Grasse lawyer sends his request on 10 January 2024 by registered letter. The bâtonnier receives it on 15 January. The four-month period expires on 10 May 2024. If the bâtonnier renders his decision on 20 May, it is void because it is out of time. The clarification of the Court of Cassation helps avoid this type of challenge.

In my practice, I have encountered cases where lawyers challenged the bâtonnier's competence due to an alleged exceeding of the deadline. Thanks to this decision, the date of sending is conclusive, which simplifies matters.

Four tips to avoid this type of dispute

• Act without delay: As soon as the dispute arises, refer the matter to the bâtonnier by registered letter with acknowledgement of receipt. Do not rely on a simple hand delivery, as proof of the date is essential.
• Keep evidence carefully: Keep the receipt of filing of the request with the bar secretariat, or the acknowledgement of receipt of the registered letter. This is your only protection in case of a challenge to the date of referral.
• Check the appointment of the bâtonnier: Ensure that the appointed bâtonnier is indeed from a third bar (neither yours nor your colleague's). If in doubt, request a new appointment.
• Anticipate deadlines: The bâtonnier has four months to rule. If the deadline approaches and you have not heard anything, follow up in writing. This can prevent the procedure from stalling.

Further insight: related case law and developments

This decision is part of a consistent line of the Court of Cassation that favours the date of the act of referral over the date of receipt for procedural deadlines. For example, in a judgment of 12 July 2012 (No. 11-21.345), the Court already held that the time limit for appealing a bâtonnier's decision runs from notification, not from the date of the decision. Here, the same principle is applied to the referral.

What this means for the future: lawyers and litigants must be even more rigorous about the dates of sending. Courts may extend this reasoning to other deadlines, such as those provided for appeals to the Court of Appeal. In practice, I recommend that my clients systematically use registered letter with acknowledgement of receipt for any referral to a regulatory authority, and keep a time-stamped copy.

What you absolutely must remember

• When does the period start? The four-month period runs from the date of sending the registered letter or filing the request, not from the date of receipt by the bâtonnier.
• How to refer to the bâtonnier? Either by a request handed in against receipt to the bar secretariat, or by registered letter with acknowledgement of receipt.
• What is the risk if the deadline is exceeded? The bâtonnier is divested: he can no longer rule, and his subsequent decision is void.
• What to do if the bâtonnier does not rule within four months? You can refer the matter to the Court of Appeal to have the divestment declared and request the appointment of a new bâtonnier.
• Does this decision apply to all disputes between lawyers? Yes, as long as a third bâtonnier is appointed in application of Article 179-2 of the decree of 27 November 1991.

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