Lawyers in Germany

Lawyers in Germany

Legal Professionals

Types of Lawyer: RECHTSANWÄLTE

An independant agent and consultant on all legal matters who may be approached directly by members of the public. Rechtsanwälte often work in the smaller cities, and are not concentrated exclusively in a few large areas, as is the case with the English Bar.

Although a Rechtsanwalt may give legal advice in any town, in the past he could not do so on a permanent basis. There were territorial limitations on legal representation and jurisdiction in civil matters but these did not extend to local courts of first instance (Amtsgerichte), tribunals, criminal or other matters. The old rules about geographical limitations are no longer valid. § 24 BRAO, that formerly regulated the geographical possibilities of a lawyer has been abrogated since 1 January 2000. Thus today, as soon as you are registered as a lawyer in one county, you are allowed to give legal advice and to appear before court everywhere in Germany.

A Rechtsanwalt is usually concurrently admitted to a local court and to regional court of first instance. After five years of practice, a Rechtsanwalt may be admitted to the regional court of appeal (Oberlandesgericht). In most areas he cannot be concurrently admitted to a court of first instance and to an appeal court: however, an exception is provided from this rule in certain areas (Baden-Württemberg, Bayern, Berlin, Bremen, Hamburg and the Saarland). This will change from July 2002 onwards as a result of a judgement of the Constitutional Court (Bundesverfassungsgericht) of December 2000 (BverfG 12.12.2000 Aktz 1 BvR 335/97) from when it will be possible to hold all admissions concurrently.

Qualification Process

See the subsection on legal education, below.

Rules of Conduct and Etiquette

It is noteworthy that in two important decisions of 14th July 1987:

  • The Federal Constitutional Court (Bundesverfassunggericht found that the Federal Chamber of Rechtsanwaelte (Bundesrechtsanwaltskammer) was not empowered to issue binding rules for the conduct of etiquette of Rechtsanwaelte.
  • The court found that the rules which had been promulgated by this body for such conduct and etiquette (Standesrichtlinien) could not be used as a means of interpreting and particularising the general provisions of Paragraph 43 of the Bundesrechtsanwaltsordnung

The latter provision stipulates that a Rechtsanwalt must exercise his profession conscientiously and that both within and outside the course of such exercise, he must show himself worthy of the respect and trust demanded of a Rechtsanwalt.

The impact of the decision should not be exaggerated. Quite apart from the transitional provision mentioned above, many of them have a statutory basis, for example in the Bundesrechtsanwaltsordnung (law governing Rechtsanwälte itself), or in the Bundesrechtsanwaltsgebührenordnung (law governing the cost of Rechtsanwälte) or in the Zivilprozessordnung (Civil Procedure code) or in the Strafgesetzbuch (Criminal Code).

Notwithstanding this fact, the impact in question was considerable, and made legislation necessary. This was drafted and finally adopted and came into force in March 1997. The text of the new Berufsordnung can be found in BRAK Mitteilungen 6/96 p.241. There have been a few amendments since this version was adopted by the Minister.

It is noteworthy that the impact of the 1987 decisions is likely to be felt in other professions as well. Thus, for example, rules governing professional conduct and etiquette which are applicable to notaries and patent agents, and which would seem to have a character and effect, similar to those applicable to Rechtsanwälte may now, to some extent at least, be of doubtful validity. Legislation may well prove to be necessary in respect of these and other professions so as to remove the doubt which must now exist about the validity of their autonomous professional rules.

Rights of Audience

Rechtsanwaelte have a monopoly of pleading and legal representation in regional courts of first instance (i.e. Landgerichte), but not in the local courts of first instance (Amstgerichte). This monopoly extends to the regional courts of appeal (Oberlandesgerichte) and to the Federal Supreme Courts (Bundesgerichtshof), and extends to the civil and criminal divisions of these courts. However, pleading and representation by a Rechtsanwalt is in principle only mandatory before the highest courts as far as administrative, fiscal, social and labour proceedings are concerned. Where criminal proceedings are concerned, this monopoly is shared with professors of law.

In constitutional matters Rechtsanwaelte also share their monopoly with professors of law (Rechtslehrer).

In social, labour, tax and administrative matters of a contentious character, the monopoly of the Rechtsanwaelte is limited, and in general parties may be represented, as appropriate, by persons such as trade unions, employees representatives, representatives of farming associations, tax advisers, accountancy experts and civil servants, or legal agents of public administrative authorities.

Geographical limitations

The requirement, for Rechtsanwälte, of residence within the jurisdiction of a regional court of appeal, and the prohibition on establishing outside the locality of the court to which they were admitted, has been challenged before the Constitutional Court which ruled in September 1989 that partnerships that overlapped districts were not necessarily incompatible with German law as long as legal analysis applied in the relevant practice gave rise to the conclusion that the member retained the centre of their activities in their own offices. § 24 BRAO, that formerly regulated the geographical possibilities of a lawyer, has been abrogated since 1 January 2000. Thus today, as soon as you are registered as a lawyer in one county, you are allowed to give legal advice and to appear before court everywhere in Germany.

Partnerships between Rechtsanwälten

German Rechtsanwälte frequently form partnerships, but until 1989 it was rare for their membership to consist of more than 15 lawyers. In 1989 merger-mania created approximately ten mega-law firms of 50 or more members. In addition to a regular partnership some groups of Rechtsanwälten carry on a single office sharing arrangement. It is quite common to find Rechtsanwälte working in an employed capacity in Germany.

Cooperation with other professions

The permissibility of cooperation between Rechstanwälten and other professions is governed by para 59(A) of the BRAO which provides that Rechtsanwälte can only engage in activities with compatible professions. Among the compatible professions are patent lawyers (patentanwälte), verKammerte Rechtsbeistände, tax advisers, vereidigten Buchprüfern and Wirtshaftsprüfer.

Specialisation

Rechtsanwälte may specialise and if they do so are entitled to call themselves a Fachanwalt. In order to do so they must show by experience and knowledge that they are indeed such specialists. Many take courses offered by the Deutsche Anwaltsakademie. A new Fachanwaltsordnung has extended the range of such specialities. Fachanwälte must maintain their specialty by inter alia undertaking at least 10 hours CLE a year (§15 of the Fachanwaltsordnung).

Bailiffs

Information about Bailiffs in the European countries is provided here.

Notaries

Notaries in Germany are allowed to carry on their profession, only within the jurisdiction of the Oberlandesgericht of the place or district of their admission. Furthermore, their office must be within the latter area, and they must also have their residence there.

Information about Notaries in the European countries is provided here.

Other Issues

Mobility

Note: for information on establishment under home State professional title, see below.

Since the EuRAG has come into force there are now two options for EEA lawyers who enter Germany to practice on a permanent basis. They can either take an aptitude test (the old procedure under the revised provisions for implementing Directive 89/48/EEC), or they can use the newer procedure to establish under home State professional title (the Directive 98/5/EC procedure).

In relation to the aptitude test procedure, the Law indicates as follows (§ 16ff EuRAG): “Nationals of European Union Member States or other signatory States to the Agreement on the European Economic Area, who have completed professional education and training which entitle them to direct access to the profession of a European lawyer (§ 1), can take an aptitude test in order to be admitted to the profession of Rechtsanwalt.

If the professional education and training were not mainly received in European Union Member States or other signatory States of the Agreement on the European Economic Area, only those applicants are entitled to take an aptitude test, who have exercised the profession of a European lawyer effectively and regularly for at least three years and where this is certified by the Member State or signatory State which recognised the education and training.”

The law furthermore includes a list of recognised legal professions in other Member Countries.

Relevant information include:

  • Application and Justizprüfungsämter: see below.
  • Preparatory courses: Courses are offered by the Deutsche Anwaltsakademie: Gemeinsames Prüfungsamt der Länder Berlin, Brandenburg, Freie Hansestadt Bremen, Mecklenburg-Vorpommern, Niedersachsen, Sachsen-Anhalt und Schleswig-Holstein

Application

Applicants may only apply to ONE of the four Justizprüfungsämter and a written declaration to this effect must be submitted. If any previous applications have been made this must also be declared.

Every application requires the following documents:

  • Handwritten curriculum vitae.
  • Diploma, proof or certificate of examination or proof of competence.
  • Proof that the applicant has done half of the minimum training time in a country which is a contracting party to the EEA Treaty or proof of at least 3 years professional training in such a State.
  • Proof of citizenship of a member state of European Union.
  • Stipulation of choice of subjects.
  • Proof of payment of the examination fee.
  • All examination reports.

The application must be in German and translated documents and originals must be enclosed.

Overall four Justizprüfungsämter in Germany are concerned with the Aptitude test for foreign lawyers. The Justizprüfungsämter in charge are:

  • Justizprüfungsamt Berlin for applications for the Länder Berlin, Brandenburg, Freie Hansestadt Bremen, Mecklenburg-Vorpommern, Niedersachsen, Sachsen-Anhalt und Schleswig Holstein.
  • Justizprüfungsamt Düsseldorf for applications for the Länder Hessen, Nordrheinwestfalen, Rheinland-Pfalz, Saarland und Thüringen.
  • Justizprüfungsamt München for applications for the Länder Bayern und Sachsen.
  • Justizprüfungsamt Stuttgart for applications for Baden-Württemberg

Establishment under home State professional title

EEA nationals who are admitted to practice in a relevant EEA legal profession can apply to practice in Germany under home State title. (EuRAG § 2)

Applications must include (EuRAG § 3):

  • proof of citizenship of a Member State of the European Union or of one of the signatory States to the Agreement on the European Economic Area;
  • a certificate issued by the competent authority in the home State attesting to the European lawyer’s membership of that profession. The Land administration of justice may require that, when presented, this certificate must not be more than three months old.

The application and obligatory supporting documents must be submitted in German, in so far as they are issued by the applicant; other documents, which are not in German, must be presented with a certified German translation.

Once admitted they can practice under their home State title. If that is the same as in Germany (i.e. Rechtsanwalt) then they must also indicate their hoe Sate Bar (EuRAG § 5).

They have to present an annual certificate from the home State Bar attesting to their membership (EuRAG § 6(2)). If their right to practice in the home State lapses, so too does the right to practice in Germany (EuRAG § 6 (3 & 4)).

There are provisions on professional indemnity insurance [1] and joint practice [2].

The can also integrate into the profession of local Rechtsanwalt, as provided for in Directive 98/5/EC.

Legal Education: the Qualification Process

Lawyers in Germany have to go through the same two phase legal education whether they are to become higher civil servants, public prosecutors, Rechtsanwälte or Notare. There are certain regional variations to this pattern of legal training which may be principally explained on historical grounds, but which are not very substantial.

Article 5 of the Richtergesetz makes it clear that the object of all the different forms of legal education is to obtain the qualification necessary to hold judicial office. The holding of this qualification is a necessary prerequisite for entry to all branches of the legal profession.

Admission to University: Admission to the universities in all the Länder is regulated by common standards; students must have passed a final secondary school examination (Hochschulreife or Abitur) or an examination of equivalent standard.

Contents:

  • Contents and format of the law degree: see below.
  • State Examinations: see below.
  • Rechsanwälte – Entering the profession: see below.

State Examinations

Article 5 is applicable to the whole of Germany, and it prescribes the necessity of passing two state examinations. Historically the lack of trust in Universities led to the examinations being controlled by the State. Those achieving the highest grades in the examinations still stand the best chance of entering and following a judicial career.

Legal studies must have been pursued for at least three and a half years which must include the essential features of Civil law, Criminal law, Public law and Procedural law, including the relevant connections to European law, the approach adopted by legal science, account being taken of the philosophical, historical and sociological aspects of this discipline.

Additionally a period of three months (during which no lectures are taking place) must be spent in practical study.

More information:

  • First State Exam: see below.
  • Traineeship: Referendarzeit (or Vorbereitungsdienst) (This is compulsory for all those who wish to sit the second examination). See below.
  • Second State Examination: see below.

First State Examination

Compulsory subjects and optional group of subjects examinable.

The examination consists of written tests (“Klausur”, taking five hours), oral tests (one hour), and in a number of the Laender, written homework (Hausarbeiten). Four or six weeks are given for the completion of such homework. The oral exam takes 5 to 6 hours. As there are always 5 candidates being examined by 4 Professors / lawyers / judges, it is true that everybody has to talk for about 1 hour.

As one might expect, the combination of the different tests varies from Land to Land. The number of written examinations is less in those Länder which, like Nordrhein-Westfalen, require homework. In those which do not, such as Baden-Württemberg, Bayern, Rheinland-Pfalz and Saarland, eight written papers are required.

The examination questions set in the first examination usually place emphasis on finding a correct solution to a concrete problem.

Success in the first exam leads to a Referendarzeit or Vorbereitungsdienst organized by the state. This is a traineeship which must be completed before sitting the second examination.

Grading of State Examinations: A considerable number of candidates fail the first examination, such candidates are permitted to repeat it once. A seven point scale of evaluation results is in use in all the Laender, in pursuance of Article 2(2) of the order made by the Federal Minister of Justice concerning the marking and grading of results in the first and second state examination.

Second State Examination

The examination consists of written papers and an oral examination which are concerned with what was learned during the compulsory and optional placements. The oral examination is based upon all the stages of training received.

The written examination is taken after the compulsory stages of training. The oral examination is to take place after all these stages have been completed. All the Länder have now abolished the Hausarbeiten in the second state examination.

The grading of results (see above) takes place in accordance with the system for the First State Examination. Arrival at the final grade involves a number of complex operations. The failure rate is only about 10% which would seem to reflect the greater maturity and motivation of the students.

Once a person has passed the second state examination, he is called an Assessor (once a person has passed the second state examination, he is called an Assessor and he is then free to choose his profession (Rechtsanwalt, Notar, Richter, etc.).

Referendarzeit (or Vorbereitungsdienst)

See below, in legal training.

Contents and format of the law degree

There are only two terms in a German law student’s year.

Students are given a great deal of freedom in structuring their studies and many of them seem to use considerably more than the time which is strictly necessary (three and a half years) before proceeding to the first state examination.

At least from 1994 on, every student has to pass tests to participate in the state examinations:

  • civil law for beginners,
  • civil law for advanced students,
  • criminal law for beginners,
  • criminal law for advanced students,
  • administrative and constitutional law for beginners, and
  • administrative and constitutional law for advanced students.

To pass these tests, the student has to write a 20 page elaboration of a case (the same for everybody) and a three-hour written test. You get the Schein (“Paper”), if you reach at least 4 points (= sufficient) in each part of it.

Only if you pass all these tests, you are allowed to take the state examinations. These tests have almost everywhere replaced the studienbegleitende Leistungskontrollen.

Since 1997, students have the possibility of taking the final examinations after a maximum of 4 years of studying. If you fail, this try does not count (you still have 2 attempts). About 40% of the students take part in the Freischuss (free shot).

Rechsanwälte – Entering the profession

Having successfully passed the state examinations and completed the Referendarzeit the following stages remain to be completed in order to qualify fully as a German Rechsanwalt.

One must file an application for admission to the regional bar association (Rechtsanwaltskammer) (acting for the Ministry of Justice) in the Region (Land) in which one proposes to reside. Before 2001 one applied to the Land Court of Appeal. One will then be admitted to a court of first instance for civil matters. There are certain requirements which must be fulfilled before one can be admitted.

Examples of grounds for refusal of admission (when the candidate has been guilty) includes:

  • unworthy conduct, which makes him appear unfit to exercise the profession of a Rechtsanwalt,
  • a clear breach of the duty of candour when applying for admission as a Rechtsanwalt,
  • use of a “doctoral” qualification which has not been earned,
  • dishonest concealment of income from the revenue authorities,
  • alcoholism,
  • opposing the democratic order in a manner which laid him open to criminal sanctions (the mere membership of an authoritarian and anti-democratic political party are not enough to make the latter provision applicable, unless the member has pursued some activity on behalf of that party which has made him liable to criminal sanctions),
  • conducting an activity which is not compatible with the profession of a Rechtsanwalt, or with the reputation of those who exercise the profession, for examples.

As soon as a Rechtsanwalt(in) takes an oath to the Constitution s/he will be admitted to a court.

More information:

  • Rules of conduct and etiquette: see above.
  • Rights of Audience: see above.
  • Geographical limitations: see above.

Legal Training

Referendarzeit (or Vorbereitungsdienst)

This is a traineeship organised by the state to be entered by students who have passed the first state examination. It was originally intended as an education for the public service, however, it began to be regarded as useful for lawyers and consequently most of them came to complete it, although many did not remain in the public service.

This pre-service training lasts for two years.

Referendare have to pass through a number of stages of training, which may not exceed seven, lasting for at least 3 months.

The Referendar is required to collaborate with his supervisors in the various professional fields. These persons are expected to help him to acquire motivation, and to increase his interest in his studies. In principle, the Referendar’s role is limited to collaborating with and assisting his supervisors. He drafts legal decisions, and analyses the relevant legal literature for them. In a few cases however, (especially in relation to the taking of evidence), the Referendar is permitted to practice on his own responsibility, including representing clients in Court in civil cases if the Rechtsanwalt approves.

During the various stages of the Referendarzeit, each Referendar has to participate in a study group in a relevant field led by judges and officials. The Deutscher Anwaltverein now offers young jurists who decide to become lawyers a special educational programme.

Governing Bodies

For Rechtsanwälte:

  • Bundesrechtsanwaltskammer (Federal Chamber of German Bars), Joachimstrasse 1, 5300 Bonn 1, Germany.
  • Deutscher Anwaltverein e.V., Adenauerallee 106, 5300 Bonn 1, Germany.

Notaires: Bundesnotarkammer, Burgmauer 53, 50667 Köln, Germany

Relevant Legislation

German Implementation of Directive 89/48/EEC:

  • Legislative text(s): Gesetz zur Umsetzung der Richtlinie des Rates vom 21. Dezember 1988 (89/48) über eine allgemeine Regelung zur Anerkennung der Hochschuldiplome, die eine mindest dreijährige Berufsausbildung abschließen, für die Berufe des Rechtsanwaltes und des Patentanwaltes fur die Berufe des Rechtsanwalts und des Patentanwalts of 6.7.90. Ref: BGBl I page 1349, as amended by Article 37 of the EWR-Ausführungsgesetzes of 27.4.1993. Ref: BGBl I page 512, as amended by Article 2 of the Verordnung zur Verbesserung der beruflichen Stellung ausländischer Rechtsanwälte of 29.1.1995. Ref: BGBl I page 132 as incorporated in the EuRAG (Gesetz über die Tatigkeit europäisches Rechtsanwälten) of 9.3.2000 Ref. BGBl I p. 182.
  • Regulatory text(s): Verordnung über die Eignungsprüfung fur die Zulassung zur Rechtsanwaltschaft of 18.12.90. Ref: BGBl page 2881, as amended by Article 38 of the EWR-Ausführungsgesetzes of 27.4.1993. Ref: BGBl I page 512.

Author: J Lonbay, with many changes.

Lawyers in other European Countries

Resources

Notes

1. Law implementing the Directives of the European Community pertaining to the professional law regulating the legal profession: § 7. Professional indemnity insurance: “The established European lawyer is exempt from the duty to maintain a professional indemnity insurance as stipulated in § 51 of the Federal Lawyers’ Act if he can prove to the Land administration of justice that he has subscribed an insurance or obtained a guarantee pursuant to the law of the home State, which is equal in terms of the conditions and the extent of coverage to the insurance according to § 51 of the Federal Lawyers’ Act. If there is no equivalence, he shall contract additional insurance or guarantee in order to provide the protection which equally satisfies the requirements set out in § 51 of the Federal Lawyers’ Act. Any supporting documents which are not originally issued in German shall be presented with a certified translation.” and “Where paragraph (1) applies, the established European lawyer shall annually provide the Land administration of justice with a certificate of the insurer, attesting to the conditions and the extent of coverage of the insurance. Furthermore, he shall promptly inform the Land administration of justice about the termination or cancellation of the insurance as well as any changes made to the insurance contract which affect the insurance cover as required under § 51 of the Federal Lawyers’ Act. If he fails to comply with the duties set out in sentence 1 or in sentence 2, the admission to the Bar may be revoked. § 14 (2) 9 of the Federal Lawyers’ Act remains unaffected.”

2. Law implementing the Directives of the European Community pertaining to the professional law regulating the legal profession: § 8. Joint practice in the home State: “A lawyer carrying on his activities in joint practice in his home State shall inform the Land administration of justice of the fact that he is a member of a grouping. He shall state the name and legal form of the grouping. The Land administration of justice may require him to provide further relevant information about this particular grouping. The personal liability of the established European lawyer for claims made by the client on the grounds of damage caused by negligence will only be excluded or limited on account of the legal form of the grouping he belongs to in his home State, if he has contracted a professional liability insurance or guarantee which satisfies the conditions set out in § 59j of the Federal Laywers’ Act. § 7 applies mutatis mutandis. The established European lawyer may employ the name of the grouping he belongs to in his home State in legal transactions. In that case he shall also mention the legal form of the grouping in his home State.”

See Also

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