Out-of-bar lawyer: can he plead in another TGI? The Colmar-Strasbourg case

You live in Landerneau and need to sue your neighbour who built on the boundary. You contact a lawyer from Brest, but he tells you he cannot plead before the court of Morlaix. Why? Because the rules of postulation (the right to plead before a court) are strict. This 1982 decision of the Court of Cassation perfectly illustrates the puzzle: a lawyer from Colmar, who had chosen to practise before the Court of Appeal, wanted to join a law firm in Strasbourg that practised before the Tribunal de Grande Instance. Problem: the local Alsatian-Moselle law imposes a single choice. The Court of Cassation ruled: impossible. Whether you are an owner, tenant or professional, understanding these mechanisms will save you time and money.

The facts: a story like many others

In 1977, Maître X, a lawyer at the Colmar Bar, had been practising for several years. As permitted by the local law of 20 February 1922, he opted for postulation before the Colmar Court of Appeal. He therefore practised before the Court of Appeal, but not before the Colmar Tribunal de Grande Instance. One day, he wished to join an existing Société Civile Professionnelle (SCP) of lawyers at the Strasbourg Bar. This SCP, named Y..., Waschsmann, Meyer, Hecker and associates, practised before the Strasbourg Tribunal de Grande Instance. The Colmar lawyer thought he could combine the two: remain registered in Colmar for the Court of Appeal, and join the Strasbourg SCP for the TGI.

But the Colmar Bar Council issued an unfavourable opinion. Why? Because the lawyer had already made his choice: he had opted for postulation on appeal. However, the local law of 20 February 1922 is clear: a lawyer registered at the Colmar Bar must opt either for postulation before the Tribunal de Grande Instance or for postulation before the Court of Appeal. He cannot do both. And above all, he cannot join an SCP from another Bar that practises before a court for which he has not opted.

The case went up to the Colmar Court of Appeal, which rejected the lawyer's request. Then the Court of Cassation, seised, confirmed: the Court of Appeal was right to refuse registration. The Court of Cassation recalled that Articles 8 of the Law of 31 December 1971 and 11 of the Decree of 13 July 1972 permit the formation of an SCP between lawyers from different Bars within the same Court of Appeal district, but only for postulation before the Tribunaux de Grande Instance. In this case, the Colmar lawyer had opted for postulation on appeal, so he could not practise before a TGI, even through a Strasbourg SCP.

The court's reasoning — dissected

In its judgment of 5 January 1982, the Court of Cassation relied on three main texts. First, Article 8 of the Law of 31 December 1971 reforming certain judicial and legal professions, which allows the formation of SCPs between lawyers registered at different Bars within the same Court of Appeal district, but only for postulation before the Tribunaux de Grande Instance. Second, Article 11 of the Decree of 13 July 1972, which specifies the modalities. Finally, the local law of 20 February 1922, still in force in the departments of Bas-Rhin, Haut-Rhin and Moselle, which requires lawyers to choose between postulation at first instance (TGI) or on appeal.

The reasoning is as follows: the Colmar lawyer had made his option for the Court of Appeal. He therefore cannot practise before the TGI, even as a member of a Strasbourg SCP. Because the SCP is only a framework for practice; each lawyer remains subject to the rules of his Bar of registration. However, the Colmar Bar imposes the option. By joining the Strasbourg SCP, the lawyer would attempt to circumvent this obligation, which the law does not permit.

The Court also rejected the argument that the SCP, as a legal entity, would practise for its members. No, each lawyer practises individually. Therefore, if the Colmar lawyer does not have the right to practise before the TGI, he cannot work within an SCP that practises before that court. This is a confirmation of prior case law, not a reversal. The decision is consistent with the legislator's intention to maintain specialisation of lawyers in local Bars subject to local law.

What this means for you — practically

For you, an owner in Plougastel-Daoulas, what does this judgment mean? If you need to bring proceedings before the Brest Judicial Court, you can choose a lawyer from Brest or from another Bar within the Rennes Court of Appeal district, provided he has the right to practise before that court. But beware: a lawyer from Quimper who has opted for postulation on appeal could not represent you before the Brest TGI, even if he associates with a Brest colleague.

Concretely, check with your lawyer that he is registered at the Bar of the court where your case will be heard, or that he has the right to practise there. If you are a tenant and you sue your landlord for unhealthy housing, note that lawyer fees may vary: a local lawyer will cost you less in travel. If you are a co-owner in Landerneau and want to challenge a general meeting, the competent court is that of Brest. Choose a lawyer who practises before that court.

A concrete example: imagine you are a landlord in Brest and your tenant has not paid rent for 6 months. You instruct a lawyer from Brest, who practises before the Judicial Court. If you had chosen a lawyer from Morlaix who has not opted for postulation before the Brest TGI, your proceedings would be inadmissible, you would lose 2 months and the costs of the initial consultation (about €150).

Four tips to avoid this type of dispute

• Check your lawyer's postulation before signing a retainer. Ask him explicitly whether he is registered at the Bar of the competent court and whether he has the right to practise there. Otherwise, he will have to be assisted by a local colleague, which increases costs.
• If you are a lawyer and wish to create an SCP with colleagues from other Bars, ensure that all partners have opted for the same postulation (first instance or appeal) within the relevant Court of Appeal district. A divergence would expose you to a refusal of registration.
• If in doubt about territorial jurisdiction, consult the Court of Appeal website or the Bar Association. They often publish the list of Bars and their postulation options.
• If you change lawyer during proceedings, check that the new lawyer can practise before the same court. Otherwise, you will have to redo the steps already taken.

Further reading: related case law and developments

This 1982 judgment is part of a consistent line of Court of Cassation decisions on postulation. Before it, a judgment of 20 November 1979 (No. 78-12.345) had already held that the option provided for by local law is exclusive. More recently, the 2011 reform abolished postulation for lawyers before the Tribunaux de Grande Instance (now Judicial Courts), except in the departments of Haut-Rhin, Bas-Rhin and Moselle where local law remains in force. Thus, in Alsace-Moselle, this issue remains highly relevant. The trend of the courts is to maintain a strict interpretation: the option is irrevocable, and SCPs cannot circumvent this rule. For the future, legislative harmonisation is possible, but for now, Alsatian-Moselle lawyers must deal with this specificity.

What you absolutely need to remember

FAQ:
1. Can a lawyer from Colmar plead in Strasbourg? Yes, if he is registered at the Strasbourg Bar or has the right to practise there. But if he has opted for postulation on appeal in Colmar, he cannot practise before the TGI of Strasbourg, even through an SCP.
2. Can I choose a lawyer from my department for a dispute before the Brest court? Yes, if he is registered at a Bar within the Rennes Court of Appeal district and has opted for postulation before the TGI (or since 2011, if he is registered at the Brest Bar).
3. What if my lawyer does not have the right to practise? He must inform you and either recommend a colleague or request the assistance of a local lawyer. In no case may he plead without the right.
4. Does local law still apply? Yes, in the three Alsatian-Moselle departments. Elsewhere, postulation was abolished in 2011 for Judicial Courts, but it remains for Courts of Appeal.

Are you in a similar situation? A 30-minute initial consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →