Decollectivization and Democracy: Current Law Practice in Romania

The legal profession was organized on the principle of bourgeois individualism. The lawyer's activity is to beat the competition, chase after big fees and after clients, while despoiling justice. The rich lawyers exploit colleagues without clients.1 Although some analysts would say this quote portrays the practice of law in both the United States and Romania today, it was written to describe the Romanian legal profession before the rise of the communist regime. The text may be an amusing, appalling, or exaggerated depiction of the avaricious lawyer, but after fortyfive years of working in collectives, today's Romanian lawyers have moved towards 1944 practices with surprising ease. Equally impressive is that privatized law practice now so resembles U.S. solo and small-firm practice as to belie the influence of the communist past on the behavior of contemporary Romanian lawyers. The correspondence between the two nations disappears upon comparison of their lawyers' participation in civil society. Despite similar economic justifications for community engagement, Romanian lawyers are largely non-participants while U.S. lawyers are active participants. Here the nations' political histories and cultures account for the difference. Although limited, this inertial vestige of the communist past is unfortunate: if Romanian lawyers were active in civil society, they would be important agents in the process of consolidating the new democracy. Those few Romanian lawyers who volunteer in civic organizations are advance scouts of a profession making the transition from communist control. Avocats are the sole focus of this Article. Avocats may represent clients in transactions and litigation in all courts without restriction as U.S. attorneys do.2 In 2003 there were 12,880 avocats practicing in Romania, of which 10,488 were full lawyers and 2392 were apprentices who practiced only in lower courts.3 As in many other nations, Romanian law school graduates may choose among several career paths: notary public (notar)4; in-house or government lawyer (jurisconsult)5; lawyer or advocate (avocat)6; and prosecutor (procuror).7 Notaries are a small, exclusive segment earning large fees to authenticate signatures and draft certain documents. Inhouse counsels represent state enterprises and other organizations such as unions, and private businesses in all matters, including transactional work, litigation, and a limited kind of lobbying. By law, each in-house counsel may represent only his or her employer.8 A final kind of Romanian lawyer is the prosecutor. Romanian prosecutors have broad authority extending beyond criminal cases to encompass some tasks typically performed by a state attorney general in the United States.9 All these jurists and judges study the same material in the same undergraduate law schools.10 Only upon graduation do they make a choice of career and satisfy separate eligibility requirements, including entry examinations and further formal training in the case of judges.11 Privatization of avocats eased the process of changing careers,12 and some judges and prosecutors have since become avocats. This Article briefly describes collectivized law practice in Romania and then summarizes the statutes that privatized the avocats' bar in 1995. Based on information garnered in interviews of avocats in four Romanian cities in 1999-200013 and a variety of studies concerning U.S. lawyers, the Article describes the reality of Romanian law practice after privatization and compares it to practice under communism and to solo and small-firm U.S. practice.14 This discussion concludes by exploring Romanian practitioners' outlook on their profession. The Article specifically examines Romanian lawyers' civic participation and its importance in the future of democracy in Romania. The Appendix describes the research and the demographics of the interview subjects. Romania, the largest country in the Balkans, boasts the natural beauty of the Black Sea coast, the rolling hills of Transylvania, and the Carpathian Mountains with their rushing rivers. …