H A R VA R D L A W S C H O O L P ROGRAM ON THE L EGAL P ROFESSION law.harvard.edu/programs/plp T HE M EXICAN L EGAL P ROFESSION © 2011 by the President and Fellows of Harvard College. All rights reserved. Disclaimer These reports reflect research done by students at HLS in the Spring of 2011, and are based on secondary sources, as noted in each report. While we believe the information reflected in the re‐ ports to be true, the information has not been independently verified, and the reports are not meant to be complete with respect to any particular topic, and particularly as regards the legal system in its entirety, or in political or constitutional context. Readers should also recognize that terminology may vary from country to country, which may make naïve comparisons misleading. For example, the concept of a “lawyer” varies from country to country, and data on “lawyers” may include practicing and non‐practicing attorneys. No one should rely on the information con‐ tained in the reports for any purpose. Structure of legal education Mexico Legal Education Licenciatura En Derecho (LED) is the undergraduate degree that enables one to practice law.i Traditionally, an LED program lasts for five years; however, many schools are now offering the degree in shortened time periods. Today only 23% of full-time curricula are five years, about 44% are four years, and 33% are less than four years.ii The variation in the length of LED programs is made possible by the fact that there is technically no agency that makes official regulations or guidelines for legal education. Rather, faculties make decisions about their respective schools’ curricula. This autonomy, however, is more limited than it seems at first glance. All institutions of higher education must receive governmental approval, for minimal quality assurance standards, in order to be part of the National Education System and to thereby have the authority to issue valid degrees. Secondly, most LED programs stick close to a traditional array of mandatory classes, which may number well over 40 (or about 80% of courses) during the course of eight to ten semesters.iii LEDs, as undergraduate degrees, are often offered at wider universities but are sometimes offered at institutions that are only law schools.iv In either case, an institution may offer a few different forms of an LED program and, indeed, a student may earn more than one LED in this manner.v Typical age of starting lawyer Status hierarchy of law schools There are some non-LED law-related degrees that may allow one to practice law or legally advise people in limited settings. Normally, judges determine whether this is allowed in any given case.vi Students typically graduate high school at 18, and study for five years, and become a lawyer around age 23. While the five year LED track is becoming less popular, other factors, such as taking a year off or taking fewer classes at any given time in order to work more, tend to prevent the average age from dipping lower than 23. As of a few years ago, there were 930 institutions of higher education that offered 1,130 LED [or very similar law] programs; that number continues to grow.vii About 170 of those institutions offered more than one program.viii Private schools account for approximately 90% of the programs offered, and about 10% are offered by public schools.ix In terms of numbers of students, private schools surpassed public schools as of the 2004-2005 academic year.x The private schools tend to be significantly smaller than the public schools (84% of private schools had less than 250 enrolled in their LED programs, while the center-of-gravity for public school enrollment was about 250-500 students in each LED program).xi While formally published rankings are hard to come by, there are several institutions whose exceptional prestige is quite evident from the predominance of their alumni in Mexico’s top corporate law firms (as well as from their being ubiquitous in Internet chatter about well-respected law schools). These institutions chiefly include the giant public Universidad Nacional Autonoma de Mexico (UNAM) and the private institutions of Escuela Libre de Derecho (“Libre”), Universidad Iberoamerica, Universidad Panamericana, and Instituto Tecnológico Autónomo de México (ITAM). Other notable institutions (mostly private) that frequently dominate discourse and large firm personnel are Centro de Investigación y Docencia Económicas (CIDE), Universidad La Salle, Universidad de Guadalajara, Tec de Monterrey, Universidad de Monterrey, Universidad Autónoma de Nuevo León, Universidad Autónoma de San Luis Potosí, Universidad Tecnológica de México, and Universidad Anáhuac.xii Note also that some of the aforementioned universities have multiple campuses and, thereby, multiple LED programs. Rough size of top law schools How professional (vs. academic) is the law degree? Most institutions that offer LEDs do not tend to send their graduates into Mexico’s top firms. Indeed, most institutions in Mexico have small and relatively poor (financially speaking) law programs.xiii UNAM has a graduating class of approximately 1,300; but it is exceptionally large.xiv Overall, most private schools’ programs have a total enrollment (spread across about 4 class-years) of 50-250 students.xv The curriculum for a Mexican LED is fairly professional and practical. Over 90% of professors are active legal practitioners and, thus, only teach law part-time.xvi As a result, courses teach to the substantive law as it is, without much room for theory or innovation. Professional regulation: basic licensing By about halfway through the LED program, most law students in Mexico start working in (poorly) paid legal positions. These bottom-level pasantes are part of the standard hierarchy in many Mexican law firms.xvii Although a license is required to practice law in most contexts in Mexico, it is obtained by merely registering the proper paperwork after one’s graduation. There is no bar exam.xviii Over 20,000 (and perhaps upwards of 40,000) lawyers per year apply for licenses, and the number has been and is rapidly growing.xix The General Office of Professions (DGP) is the governmental body with which all institutes of higher education must register in order to issue valid diplomas. Graduates from LED programs must register the completion of their programs with the DGP and they will then be given a license.xx Requirements for graduation with an LED primarily involve coursework but, depending on the school, may also involve a thesis or comprehensive General Exam (which would be similar to a bar exam but it is incorporated as a graduation requirement of some schools). The General Exam is a growing trend; 3,800 law students took one in 2000 and 7,215 took one in 2004. Finally, graduation from any professional program requires government-mandated pro bono work. For lawyers, this typically amounts to 240-400 hours of pro bono over about 6 months.xxi A license is required to work with judicial officers or participate in administrative disputes as an agent, advisor, or employer (except in labor, agrarian, or constitutional criminal matters). Giving legal advice and opinions does not require a license. How long do potential lawyers study for licensure? Not all law degrees need be a traditional LED, e.g. one may obtain a degree in “legal consulting” and receive a license to practice in some contexts at judges’ discretion.xxii There is no bar exam in Mexico. Some students have to pass a General Exam in order to graduate, but each school decides whether to make it a graduation requirement; the exam is not Lawyers per population and lawyers per working population Size of law firms Share of lawyers employed in top law firms Leverage of law firms Compensation structure a requirement of the state or any body governing the legal profession.xxiii In 2000, there were an estimated 1.82 lawyers per 1,000 people in Mexico. The aforementioned rapid growth of law student bodies, however, has likely caused (or will soon cause) a total eclipse of this number.xxiv Of course, not all people with LEDs become practicing lawyers, especially because it is an undergraduate degree and not a professional graduate degree. Law Firms Many of the top-rated corporate firms in Mexico have in the neighborhood of 40 – 100 lawyers. The prestigious Creel, Garcia-Cuellar, Aiza, and Enriquez reports 62 attorneys; its peer, Galicia Abogados comes in at under 50. At 18 partners and 50 “lawyers,” Jáuregui, Navarrete y Nader, S.C. purports to be “one of Mexico’s largest corporate firms”.xxv This range is also characteristic of prominent U.S.-based firms in Mexico. White & Case is particularly well respected in Mexico City and has approximately 48 lawyers there.xxvi While statistics are scarce, it seems fairly self-evident that the combination of the tens-of-thousands of law students graduating every year and the virtually total absence of corporate firms with over 100 attorneys means that only a very small portion of lawyers are employed in Mexico’s top law firms. In fact, as a general matter, employers have not absorbed the boom of law students and so employment prospects tend to be bleak for a substantial minority of law school graduates. One study projected a 47% surplus (relative to employment positions) in the number of students enrolled in LED program.xxvii Some Mexican law firms’ attorneys are divided into three ranks: socios (partners), asociados (associates), and abogados (lawyers). Others, however, have only partners and associates.xxviii As a result, average leverage of reputable firms is difficult to quantify. Looking at partners versus non-partners among the more prestigious firms, however, a general norm of approximately 2.54 : 1 non-partners to partners, emerges. The outer edges range from 1 : 1 to slightly over 4 : 1.xxix Methods of compensating partners vary by firm but most primarily use a system where each partner is recognized as Punitive damages in civil cases Juries in civil cases Rules on contingent fee litigation Rules on attorney’s fees and other costs in litigation Rules on discovery Law: rules on class actions owning a certain percent share in the equity of the firm. The criteria by which partners’ shares are determined from year to year vary by firm.xxx Law/Legal procedure There are, formally, no punitive damages in Mexican civil lawsuits. There are, however, sometimes “moral damages” which are usually defined as “an equitable economic indemnification to repair the moral damage,” as opposed to statutory compensation. Mexican judges have used the predecessor concept of moral damages for about a century, but it was only in the 1980s that such damages were provided for in the civil code of most Mexican states. There are no juries in civil cases.xxxi In fact, even juries in criminal cases are largely a thing of the past.xxxii Contingency fees are allowed.xxxiii Each party pays its own costs and fees.xxxiv There is no discovery in civil cases. Plaintiffs present evidence and supporting material in their initial submission, and defendants do the same in their response submission. The judge then asks for more evidence, brings in witnesses and parties to get more information from them (without their lawyers present), and/or decides the case. Thus, written submissions of the claims and evidence one possesses are the norm.xxxv Class Actions are a brand-new development in Mexico, brought about largely for the sake of consumer protection and environmental preservation. In late 2010 the Federal Constitution was amended to allow class action lawsuits (which were previously precluded by the Constitution). The Amendment reads: “The Federal Congress shall pass laws governing class actions. Such laws shall determine the areas in which they will be applied, judicial proceedings, and the mechanisms for calculating damages. Federal judges shall have exclusive jurisdiction over these proceedings and mechanisms.” Prevalence and prominence of “plaintiff’s bar” and class Statutes implementing this change and providing procedural guidelines are being developed as of 2011.xxxvi The plaintiff’s bar is weak in Mexico. Low awards, historical prohibition of class actions, lack of actions brought on behalf of shareholders or consumers against large companies jury trials, corruption, and overall slowness have all hindered the development of a strong plaintiff’s bar. The culture, whether a cause or result of the foregoing legal barriers, is not particularly litigious.xxxvii The new appearance of class actions, however, may usher in big changes. The consequences of the new developments remains to be seen. i Luis Fernando Pérez Hurtado, An Overview of Mexico’s System of Legal Education. Mexican Law Review: New Series. vol I, no. 2. 53, 54 and 56 (2009). available at http://info8.juridicas.unam.mx/pdf/mlawrns/cont/2/arc/arc2.pdf . ii Id. at 73. iii Id. at 57-62, 66, 68-69, 72-73, 85. iv See generally id.; see also Interview with Juan Carlos Pérez Peña, L.L.M. student, Harvard Law School (Apr. 21, 2011). v Pérez Hurtado at 57, 71 n. 64. vi See id. at 65, vii Id. at 57, 71, 79. viii Id. at 71 n. 64. ix Id. at 71. x Id. at 79. xi Id. at 77. xii See and compare IFLR 1000, Mexico rankings available at http://www.iflr1000.com/Jurisdiction/83/Mexico.html with attorney biographies on, e.g., http://www.creelmx.com; http://www.fgr.com.mx/; http://www.macf.com.mx/en/index.php; http://www.jnn.com.mx/e_inicio.html; http://www.ksca.com.mx/; http://www.s-s.mx/site/; http://www.basham.com.mx/; http://www.gcsc.com.mx/; http://www.ritch.com.mx/. See also common lay discussions on, e.g., http://www.mexicolegal.com.mx/cafeteando-ver.php?id=21 ; http://es.answers.yahoo.com/question/index?qid=20081005215619AA4Dfb5 . But see a somewhat different list, yet with many of the same universities, at http://www.eluniversal.com.mx/graficos/universidades/mejoresuniversidades/derecho.html . xiii Pérez Hurtado at 72. xiv Interview with Rodrigo Romero Hidalgo, L.L.M. student, Harvard Law School (Apr. 21, 2011). xv Pérez Hurtado at 81. xvi Id. at 57. xvii Pérez Peña. xviii Pérez Hurtado at 58, 62, 64-65. xix See id. at 66 n. 48 (19,958 in 2003 and predicted to grow); see also id. at 74 (reporting 240,000 law students currently enrolled in Mexico) and extrapolate to am approximate per-year metric. xx Id. at 62, 64-65 (citing Articles 1 and 3 of LR5˚; 12, 15, 18, of RLR5˚; and 1 of LGE). xxi Id. at 62-64 (including cites to Articles 53, 55 of LR5˚; and Article 85 of RLR5˚). xxii Id. at 65 (including cites to Aritcles 27 and 28 of LR5˚). xxiii See id. at 62-65. xxiv Stephen P. Magee. The Optimum Number of Lawyers and a Radical Proposal for Legal Change. p. 13, exh. 1. (2010). available at: http://buckleysmix.com/wp-content/uploads/2010/10/Magee.pdf . xxv See IFLR 1000, Mexico rankings available at http://www.iflr1000.com/Jurisdiction/83/Mexico.html in light of, e.g., http://www.creelmx.com; http://www.fgr.com.mx/; http://www.macf.com.mx/en/index.php; http://www.jnn.com.mx/e_inicio.html; http://www.ksca.com.mx/; http://www.s-s.mx/site/; http://www.basham.com.mx/; http://www.gcsc.com.mx/; http://www. goodrichriquelme.com; http://www.ritch.com.mx/. xxvi See IFLR 1000, Mexico rankings available at http://www.iflr1000.com/Jurisdiction/83/Mexico.html With http://www.whitecase.com/Attorneys/List.aspx?Offices=f5afdc31-5406-453c-aec7ad3b7734bd38&sort=Position (listing White and Case attorneys in Mexico City office). xxvii Pérez Hurtado at 74-75. xxviii Pérez Peña; see, e.g., Creel, Garcia-Cuellar, Aiza, and Enriquez attorney directory within http://www.creelmx.com. xxix See IFLR 1000, Mexico rankings available at http://www.iflr1000.com/Jurisdiction/83/Mexico.html and attorney directories in http://www.creelmx.com; http://www.fgr.com.mx/; http://www.macf.com.mx/en/index.php; http://www.jnn.com.mx/e_inicio.html; http://www.ksca.com.mx/; http://www.s-s.mx/site/; http://www.basham.com.mx/; http://www.gcsc.com.mx/; http://www. goodrichriquelme.com; http://www.ritch.com.mx/; http://www.whitecase.com/Attorneys/List.aspx?Offices=f5afdc31-5406-453c-aec7-ad3b7734bd38&sort=Position. xxx See Pérez Peña; Romero Hidalgo. xxxi Pérez Peña; see also Civil Law – To Sue or Not to Sue. Focus on Mexico. (2011). available at http://www.focusonmexico.com/Mexico-Topics/Legal-System-in-Mexico/Civil-Law-To-Sue-or-Not-to-Sue.html . xxxii See generally Hiroshi Fukurai, Clark Robert Knudtson, Susan Irene Lopez. Is Mexico Ready for a Jury Trial?: Comparative Analysis of Lay Justice Systems in Mexico, The United States, Japan, New Zealand, South Korea, and Ireland. Mexican Law Review: New Series. vol II, no. 1. (2010). xxxiii See Pérez Peña; see also http://www.moretonsmith.com/legalservices_countries.aspx . xxxiv See Civil Law – To Sue or Not to Sue. Focus on Mexico. (2011). available at http://www.focusonmexico.com/Mexico-Topics/Legal-System-in-Mexico/Civil-Law-To-Sue-or-Not-to-Sue.html . xxxv See Civil Law – To Sue or Not to Sue. Focus on Mexico. (2011). available at http://www.focusonmexico.com/Mexico-Topics/Legal-System-in-Mexico/Civil-Law-To-Sue-or-Not-to-Sue.html ; see also Pérez Peña. xxxvi Basham, Ringe, y Correa. Class Actions. Litigation Newsletter (Aug. 2010) available at: http://www.basham.com.mx/uploads/pdf/Notas%202010/Agosto3.pdf ; Beveridge & Diamond, P.C.. Mexico Highlights: Senate Passes Historic Class Action Law. Latin American Region Environmental Quarterly. (Jan. 2011). available at: http://www.bdlaw.com/news-1057.html ; see also Adriana Lopez Caraveo, Jens Erik Gould. Mexico Senate Votes to Allow Class Action Lawsuits. Bloomberg Businessweek. (Dec. 9, 2010) available at: http://www.businessweek.com/news/2010-12-09/mexicosenate-votes-to-allow-class-action-lawsuits.html ; Shook, Hardy, & Bacon L.L.P. Mexico: Class Actions. International Class Action Bulletin. (May 2009) available at: http://www.shb.com/newsletters/ICAB/ICAB5609.pdf . xxxvii Beveridge & Diamond, P.C.. Mexico Highlights: Senate Passes Historic Class Action Law. Latin American Region Environmental Quarterly. (Jan. 2011). available at: http://www.bdlaw.com/news-1057.html ; see also Civil Law – To Sue or Not to Sue. Focus on Mexico. (2011). available at http://www.focusonmexico.com/Mexico-Topics/Legal-System-in-Mexico/Civil-Law-To-Sue-or-Not-to-Sue.html.
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