Luxembourg Presents Partial Legal Aid, Access and Training Reform

On Monday 7 February 2022, Luxembourg's Minister of Justice, Sam Tanson, presented the bill on the organisation of legal aid, in the presence of Valérie Dupong, President of the Luxembourg Bar Association.

With this project, the bill intends to reform the legal aid system in order to make it more efficient, more coherent and more equitable. As provided for in the government's coalition agreement, the creation of partial legal aid will make it possible to strengthen citizens' access to justice.

Legal aid is an essential element in guaranteeing this to the most vulnerable and deprived litigants and consists of creating a mechanism for financial intervention by the State based on a purely social approach. However, the legal aid scheme in force since 1995 excludes all persons whose income exceeds the single "REVIS" threshold. Thus, a person with a higher income, only slightly exceeding the applicable legal threshold for legal aid, is not entitled to any aid from the State, which may have the consequence that this person prefers waive his right to sue. Since the introduction in 1995 of the system currently in force, it has become clear over time that there is a need to reform this system in order to make it more efficient, more coherent and more equitable.

Partial legal aid

In order to remedy this situation, the government's coalition agreement provides in particular for the creation of partial legal aid in order to "strengthen the accessibility of justice". The idea consists in offering, under certain conditions, to people who do not meet the criteria for benefiting from completely free legal aid, the possibility of partial coverage of the costs and fees likely to result, for example, from an action in justice. The reform plans to proceed in stages (support up to 50% or 25% depending on the applicant's income) and also takes into account the composition of the household. It also sets new thresholds exceeding the amount of the REVIS by 15% to 30%.

Mandatory fee agreement

When a person can benefit from partial legal aid, he must first conclude a fee agreement (model made available by the bar association) with his lawyer. This agreement will set the hourly rate, as well as the terms of payment applicable to the part of the fees which will not be borne by the State.

When the partial legal aid file is closed by the lawyer, the final statement is subject to a control of the various services by the legal aid service of the bar, which may possibly lead to a reduction in the amounts invoiced. Following this so-called "taxation" control, the lawyer and his client are informed of the amount that will be borne by the State as well as the amount that the client will have to pay in accordance with the conditions set out in the fee agreement.

Legal aid for minors

Until now, the law provides that each minor has the unconditional right to obtain legal aid (regardless of the financial situation of his parents) and that the parents may be subject to post-clearance recovery of costs and fees, paid by the State for the legal aid granted to their child. However, the recovery from the parents of the costs and fees paid by the State for the legal aid granted to their child is problematic insofar as it is likely to harm the relationship, sometimes conflictual, between the minor involved in a court proceedings and his parents. However, it is precisely in the interest of the minor child that the exercise of his right to legal aid does not have a negative impact on his parents. In addition, in most cases, recovery does not succeed, either because of the financial situation of the parents or because of difficulties in accessing the data necessary to proceed with the recovery. For this reason, as part of the reform, the right of the State to recover from the parents the costs and fees paid for legal aid for minor children will be waived.

Finally, the scope of legal aid is extended to people benefiting from an over-indebtedness procedure as well as to the costs resulting from judicial and extrajudicial mediation.

It is also planned, within the framework of this reform, to carry out various procedural adaptations in order to make the system in place more effective. The bill provides in particular:

• The limitation of the number (only one) of lawyer changes that a client can request in the context of a legal aid file.
• Details of the eligible benefits in terms of legal aid (in a Grand-Ducal regulation).
• A parallelism of the forms with regard to the exercise of the remedies provided for by the regulations applicable to legal aid.

Minister Tanson also presented the reform relating to access to and training for the professions of lawyer at the Court, notary and judicial officer in the presence Valérie Dupong, President of the Luxembourg Bar Association, Martine Schaeffer, President of the Chamber of Notaries and Carlos Calvo, President of the Chamber of Judicial Officers, .

The preliminary stage common to the three courses consists of completing the Complementary Courses in Luxembourg Law (CCDL), a six-month theoretical course aimed at teaching the particularities of Luxembourg law.

All training is submitted to the Minister of Justice and the organisation of training is placed under the direction of a director of studies assisted by the steering committee in which the three professions (lawyers, notaries and bailiffs) are represented.

This structure being already in place for the training of lawyers since 2009, it is proposed to integrate the training of notaries and judicial officers.

This bill therefore applies to the three formations, namely:

• professional training of lawyers
• professional training of notaries
• professional training of judicial officers

Common stage to the three formations

Access to the CCDLs is currently done by the approval of the diploma of the end of higher studies in law. This project plans to replace this access by registration in the registers of training titles held by the Ministry of Higher Education and Research. A five year higher education in law is required: law degree and master's degree in law.

• Establishment of an entrance exam to the CCDL which will be held each year in October

The purpose of this examination is to make an initial selection of candidates, while the CCDLs currently have around 600 registrations per year, a large part of which are unsuccessful.

Specific training for lawyers

The training requires a judicial internship of two years, the maximum duration of the internship is now set at four years. The end of judicial internship exam (known as the "avoué" exam) is replaced by several knowledge checks throughout the two years of internship.

Specific training for notaries

The training requires a notarial internship lasting 18 months, currently twelve months. Access to the notarial internship is now subject to the prior success of the judicial internship. A thesis on a subject related to the notarial profession must be written by the trainees, which will be taken into account in the same way as a test of the notarial end-of-training examination.

Specific training for judicial officers

The training requires an internship lasting 18 months, currently twelve months. Access to the internship is now subject to the prior success of the judicial internship. The drafting of a thesis having a subject in relation with the function of judicial officer must be written by the trainees who will be taken into account in the same way as an examination test at the end of the training course.