Statutory Regulation of the German Legal Profession

In Germany, the legal profession and its position within the state and society are anchored in the Constitution and comprehensively regulated by federal statute.

The German Attorney's Act

The German Attorney's Act (Bundesrechtsanwaltsordnung; "BRAO"), a federal law, regulates the legal profession in detail. The BRAO conceives the profession as an Attorney at Law as a liberal profession, where attorneys are completely independent of state influence in their work. The right of attorneys to represent citizens in all legal matters can only be limited by federal law.

The prerequisites for becoming an Attorney at Law are strictly regulated by federal and state statute. In the interest of the public good and to maintain and ensure administrative justice, an Attorney at Law is subject to statutorily established duties of independence, confidentiality, avoidance of conflicts of interest, and performance of objective and competent work. Intrusion by the state upon an Attorney's substantive work is impermissible. Corrections to an Attorney's substantive work are only possible through legal channels by the respective court.

In addition, the professional liability of attorneys as well as the cooperation with other professions and obligation for compensation to be settled on the basis of a statutory fee regulation is statutorily regulated.

A breach of any of these duties by an Attorney will be punished. Initially, the regional bar to which the attorney belongs makes a decision in regard to an alleged violation and subsequently, the matter is referred to the appropriate body, which has jurisdiction over this matter.

The regulations set forth in the German Attorney's Act (BRAO) for the legal profession are exclusively subject to parliamentary disposition. Those belonging to the profession and their organizations have no authority to set standards.

Since 1994, a special organization of attorneys called the "Regulations Assembly" (Satzungsversammlung) (§§ 191a et seq. BRAO), which is authorized through democratic elections, has been allowed to put in concrete terms the statutory provisions for regulation of the lawyer profession. There is a narrowly drawn, exclusive list for this. The resolutions of the "Regulations Assembly", which must be approved by a qualified majority, are expressed in the regulation regarding the profession. The provisions of the regulation regarding the profession are not allowed to establish any (new) professional obligations, but rather, only more specifically formulate the statutory rules in accordance with the guidelines prescribed by the legislature as discernible from the law. The resolutions of the "Regulations Assembly" and the provisions of the regulation regarding the profession are examined by the Federal Ministry of Justice for their compatibility with the law and the Constitution. The Ministry can rescind resolutions by the "Regulations Assembly" through administrative act. Despite this possibility for control, many provisions in the professional regulation have been rescinded by the Federal Constitutional Court upon complaints by individual lawyers of violations of the law and the Constitution.

The Regional Bars

The implementation of the attorney professional law standardized in the BRAO is an original task of the state, which is usually accomplished by state administration and the establishment of specific authorities necessary therefore. The state could, therefore, implement the rules applicable to attorneys through the federal and state justice administrations (direct state administration). However, the German legislature has not taken this path, but rather, in consideration of the tradition established in German law, the implementation and application of the law affecting attorneys has been transferred to a particular authority ( Rechtsanwaltskammer; regional bar), which are staffed by members of the profession.

In the Federal Republic there are 28 regional bars. The regional bars are set up as public law corporations and function as indirect state administration. The regional bars are subject to state supervisory authority, which monitors whether and how they fulfill their duties.

It is continuous objective of such organization of matters regarding attorneys to make the expert knowledge of members of the profession profitable for the purposes of state administration.

As with all state administration, regulation of the attorney profession must be in the interest of the public good. Consequently, the regulation of attorneys may only impose those limitations that are based upon reasonable interest of the public good. The courts, and ultimately, the Federal Constitutional Court, decide on disputes, because the regulation of professions affects Article 12 of the Constitution (freedom of profession).

Upon admission, each attorney is necessarily a member of the regional bar responsible for his business, in the form of compulsory membership. The members of the regional bar elect the bar organs and, in the context of the statutory provisions, pass resolutions, and implement necessary measures. To this extent, they have their own budget and the right to collect membership dues.

The tasks of the regional bars are described and limited in detail by the BRAO. In addition to tasks that affect the organization and the budget, their tasks primarily involve exercise of disciplinary supervision over attorneys and consulting with and instructing them on professional law matters. Only the regional bars have disciplinary authority. In addition, the regional bars have a duty to participate in the staffing of attorney courts, as well as attorney training by naming attorneys suitable for providing training. The regional bars are also responsible for the training of office personnel. Further, it is their task to provide expert opinions on questions presented by state authorities and ministries that affect the regional bars.

The principle of individual authorizations applies. This means that the regional bars only fulfill those tasks that are transferred to them by law and not simply those that for some reason also prove to be useful for attorneys. The principle of implied powers known in the law of international organizations, which can lead to expansion of tasks, explicitly does not apply.

The German Federal Bar - BRAK

The 28 regional bars themselves are amalgamated at the federal level into the German Federal Bar (Bundesrechtsanwaltskammer; "BRAK") in the form of compulsory membership. The BRAK is also a public law corporation.

The BRAK must fulfill the tasks allocated to it by law. These include, among others, in particular:

.  in questions that affect all of the regional bars, ascertaining the opinions of the individual bars and establishing the majority opinion through common discussion;

.  in all matters that affect all of the regional bars, presenting the opinion of the German Federal Bar to the competent authorities, courts, and organizations and to represent all regional bars to these institutions.

The above-mentioned "Regulations Assembly" is set up within the German Federal Bar. The president of the German Federal Bar and the presidents of the regional bars are non-voting members of the "Regulations Assembly" and the attorneys chosen by the members of the regional bars serve as voting members.

The German Federal Bar does not have a right to collect membership dues, but rather, is financed from the dues of the regional bars. The German Federal Bar is neither democratically legitimated nor are the individual attorneys, as members of the regional bars, members of the German Federal Bar.

The representation of the economic, political and professional interests of attorneys vis-à-vis society, politics, and the state, are not among the tasks specifically enumerated for the regional bars and the German Federal Bar.

The German Bar Association - DAV

The representation of the economic, political and professional interests of attorneys vis-à-vis society, politics, and the state, is the object and task of the German Bar Association (Deutscher Anwaltverein; "DAV"), its state associations, and its local associations. The bar association is the independent lobbying organization of the German attorney profession, democratically legitimated by voluntary membership.

There are 243 local bar associations combined to form the German Bar Association. Any admitted attorney may become a member of his local bar association. Membership in the local bar association, in contrast to the compulsory membership in the regional bars, is voluntary. Each local bar association elects a managing board by its members.

The local bar associations participate in the formulation of opinions of the German Bar Association through the membership meeting, in which each has a seat and a number of votes that varies according to size. The membership meeting of the DAV elects the members of the managing board, approves the annual accounts, establishes the membership dues, and is the highest decision-making organ of the association.

The managing board elected by the membership meeting is comprised of 27 members, each of whom must be a member of a local bar association. The managing board of the German Bar Association is responsible for all matters pertaining to the association, except for those that have been transferred to the membership meeting or other organs of the association. The managing board may transfer additional tasks to the president and the presidium.

The president represents the association and manages the day-to-day business. He leads the membership meeting, the managing board and presidium meetings, and makes decisions on all urgent matters. The presidium administers the association's assets, finances, and investments and prepares the managing board meetings.

Financing of the German Bar Association takes places through dues, which the local bar associations must pay to the DAV for each of its members.

Berlin , 14 July 2004

Dr. Dierk Mattik (signed)
Secretary General
Deutscher Anwaltverein

Still not sure how to find the right attorney for you? Take a look at our check list "How to find the RIGHT German Attorney for your German law related matter"