Country Report 2015 - Germany: Bundesrechtsanwaltskammer / The German Federal Bar

Country Report 2015 - Germany: Bundesrechtsanwaltskammer / The German Federal Bar

by Mrs. Ting-Winarto

I.  Bundesrechtsanwaltskammer

The German Federal Bar (Bundesrechtsanwaltskammer) is the umbrella organization of the 28 regional Bars in Germany (Rechtsanwaltskammern). It acts as a central organization for the legal profession in general and represents all lawyers in Germany (around 164,000). In Germany, every lawyer is a mandatory member of a regional Bar. Therefore, The German Federal Bar safeguards the professional interests of all lawyers in Germany at a federal, European and international level.

The German Federal Bar is not responsible for the professional supervision of individual lawyers. This responsibility is assumed by the regional Bars. Its duties include the following:

1. in matters that concern all regional Bars, determining the opinions of the individual regional Bars and establishing the majority opinion by way of joint declaration;

2.in matters that concern all regional Bars, to present the opinion of the German Federal Bar to all relevant courts and authorities;

3. to represent the individual regional Bars in dealings with authorities and organizations;

4. to render an expert opinion required by a federal legislative authority or body or the Federal High Court of Justice (Bundesgerichtshof);

5. to promote  the professional development of lawyers.
 

II.  New Presidency of The German Federal Bar

In the framework of the BRAK’s General Assembly (Hauptversammlung) held on 18.09.2015, the Presidents of the 28 regional Bars elected the Presidency of The German Federal Bar.

The new President is Rechtsanwalt Ekkehart Schäfer from Ravensburg. He succeeds Axel C. Filges from Hamburg, who headed The German Federal Bar for eight years. Mr. Schäfer took over as President after having been a Vice President of the BRAK since 2007, where his main areas of activity were public relations and data protection law. He has been committed to the legal profession’s self-regulation for almost 30 years: first as member of the Council of the Tübingen Bar, and from 2000 to 2010 as its President. As a lawyer, Mr. Schäfer’s professional focus lies on medical malpractice law. Since 2006 Schäfer has been a Bar-approved specialized lawyer (Fachanwalt) for medical law.

Dr. Martin Abend (Bar of Saxony) was elected First Vice President. He had already been a member of the BRAK Presidency for four years, mainly dealing with the impact of EU law on the rules and regulations governing the legal profession and with questions arising in the context of electronic legal transactions and the introduction of the individual electronic mailbox for every German lawyer.

The BRAK Presidency furthermore includes:

- Dr. Ulrich Wessels, Hamm Bar
- Dr. Thomas Remmers, Celle Bar
- Ulrike Paul, Stuttgart Bar
- Michael Then, Munich Bar (Treasurer).
 

III.  Reform of the law pertaining to in-house lawyers

With its judgements of 03.04.2014 – B 5 RE 3/14 R, B 5 RE 9/14 R and B 5 RE 13/14 R - the Federal Social Court (Bundessozialgericht, BSG) declared unlawful the administrative practice of releasing in-house lawyers (Syndikusanwälte) from statutory pension insurance schemes. The questions which arise as a consequence of these decisions with regard to existing and future insurance profiles urgently require a clarifying statutory provision in order to prevent unwanted developments in professional politics and society.

The present government draft law provides for the introduction of a standard which defines the status of the so-called Syndikusrechtsanwalt as another type of Rechtsanwalt (lawyer) sui generis. This legal definition of the Syndikusrechtsanwalt clarifies that this type of lawyer is a Rechtsanwalt within the meaning of § 1 to § 3 of the Federal Lawyers’ Act (Bundesrechtsanwaltsordnung, BRAO). The admission as Syndikusrechtsanwalt, by contrast to the admission as Rechtsanwalt, is activity-based in order to distinguish his activity clearly from other legal services provided in a relationship of employment. The government draft does not uphold an absolute ban on representation as currently provided by § 46 BRAO.

From the BRAK’s point of view the draft is a suitable foundation for solving with legal certainty the problem of whether in-house lawyers are releasable from mandatory statutory pension insurance. The BRAK welcomes the fact that the new law regards the Syndikusanwalt as another type of lawyer sui generis. The BRAK also welcomes the proposed double admission. However, the BRAK believes there is a need for fundamental correction with regard to the intended partly cancellation of the ban on representation of clients at the courts which apply to in-house lawyers. The BRAK maintains that the existing ban on representation in all judicial proceedings as well as in arbitration proceedings, as expressed in § 46 BRAO, must continue to apply fully to in-house lawyers.

The law will most likely come into force on 01.01.2016.
 

IV.  Electronic legal transactions and electronic mailbox for lawyers

One of the most important topics on The German Federal Bar’s current agenda is electronic legal transactions. The Act on the promotion of electronic legal transactions with the courts imposes a statutory obligation on the BRAK to establish a special electronic mailbox (besonderes elektronisches Anwaltspostfach, beA) for every German lawyer. The special electronic mailbox (beA) will enable lawyers to securely communicate electronically with the courts as well as among themselves.

The top priority for the development of the beA is system security. By employing state-of-the art authentication and encryption technologies it can be ensured that no unauthorized person will be able to gain access to the mailbox.

With regard to electronic communication in criminal proceedings, the Federal Ministry of Justice and Consumer Protection (Bundesministerium der Justiz und für Verbraucherschutz, BMJV) sent a draft ministerial bill in late September 2014 on the introduction of electronic files in criminal matters to German professional associations for comments. The draft provides that, in future, criminal and investigation files will be created and maintained electronically. A flexibility clause gives the Länder the possibility to introduce the new rules gradually by 2024. With the exception of certain derogations which are necessary in criminal proceedings, the aim is to adapt the rules on electronic legal transactions in criminal proceedings to the modified rules regarding all other types of procedure. These rules were introduced by a law passed in October 2013. The uniform rules also include the use of an electronic mailbox for lawyers for the entire communication with the courts.
 

V.  Data retention

The BRAK strongly opposes the unfounded and comprehensive mandatory storage of traffic data. The draft bill on the introduction of mandatory storage of data and a maximum storage period for traffic data, which was submitted for final discussion at the plenary session of the German Bundestag on 16.10.2015, provides for a duty to be imposed on telecommunications companies to store all traffic data for ten weeks and location data for four weeks. The only communication lines to be excluded are those of persons, authorities and organisations in the social sector or the church who exclusively or primarily offer advice by telephone in case of psychological or social emergencies, and who are themselves, or their collaborators are, insofar subject to particular obligations of confidentiality. By contrast, as far as the members of the professions that are subject to secrecy are concerned, the draft merely provides for a prohibition of data retrieval by law enforcement authorities. The draft law thus fails to consider that the lawyer’s professional secrecy is of comparably vital importance for the clients concerned. The storage of data concerning who, when and how long someone has communicated with his lawyer, contradicts the duty to protect the relationship of trust as stipulated by the German Constitution.

“We still consider data retention – even if it goes by a different name now - to be unconstitutional”, BRAK President Ekkehart Schäfer explains the BRAK’s rejection. “The protection of a lawyer’s communication is not ensured by the envisaged provisions, since even the mere storage of data, even without the possibility of retrieval, offers considerable potential for abuse.”

The storage of data already presents not only an unacceptable impairment of professional secrecy and thus of the indispensable relationship of trust. Knowing that one’s personal data is stored creates a feeling of state supervision and control which can discourage those concerned from making contact. Yet free, unrestricted and confidential access to medical care, legal and economic advice and representation must remain guaranteed without restrictions.
 

VI.  International Lawyers’ Forum

The BRAK organized its 2^nd International Lawyers’ Forum – IAF in Berlin on 27.03.2015 on “Access to Justice – A Lawyer’s Issue”. More than 100 participants, most of which were representatives of lawyers’ organisations, from almost 30 countries attended the Forum.

Conference participants talked about how access to justice is organized in their respective countries, discussed possible ways of improvement and exchanged their experiences. In his welcome address RA Axel Filges warned against interference with rule-of-law structures on grounds of supposedly economic constraints, especially in times of economic crises. The discussions triggered by the financial and government crises in Europe demonstrate just how readily the axe can be wielded against the rule of law when the primacy of the economy shall apply and claims to provide the framework for the functioning of the social order. RA Filges was supported by Dr. Stefanie Hubig, State Secretary at the Federal Ministry of Justice and Consumer Protection, who presented a greeting on behalf of the Federal Minister of Justice, Mr. Heiko Maas, pointing out the necessity of an effective enforcement of rights at the national as well as at the international level. She stressed that only where one can go to court to claim, defend and assert human rights, will these rights be recognized. Therefore, everybody needs access to justice, which means access to the courts, to lawyers and arbitrators.

It was a particular pleasure that, for the first time at the BRAK’s IAF, LAWASIA participated with its President Isomi Suzuki. Senior officials of the Law Society of Hong Kong, the Malaysian Bar, the Taiwan Bar Association and the Japan Federation of Bar Associations also attended the conference.
 

VII.  Sino-German lawyers’ exchange

Since the beginning of this year (2015), the Robert Bosch Foundation, the German Gesellschaft für Internationale Zusammenarbeit (GIZ) and the BRAK have intensified their cooperation to promote exchanges between Chinese and German lawyers. In cooperation with the All China Lawyers Association, BRAK and GIZ are organizing two seminars to provide a forum for exchange on legal issues between six German and six Chinese lawyers. The first seminar took place in November at the BRAK in Berlin and has been dedicated to civil law and civil procedural law as well as to the law governing the legal profession. Another topic on the agenda was the rights and duties of criminal defence lawyers. The second seminar is planned to be held in China in April/May 2016. The pilot project is intended to determine the levels of interest for and feasibility of such measures since the issue “strengthening of the legal profession” is a very sensitive one in China. If conducted successfully, project partners will aim at extending the exchange and increasing the number of participants as well as the sphere of influence in order to ultimately establish a sustainable project and network. At the political level, the project is supported by the German Federal Ministry of Justice and Consumer Protection as well as the Chinese Ministry of Justice.
 

VIII.  Human Rights Committee – urgent action cases

With a letter from the President, the BRAK supported the call for the release of Saudi lawyer and human rights defender Waleed Abu al-Khair who represented Raif Badawi, a blogger held in detention and sentenced to 1,000 whiplashes.

Against the background of a nationwide campaign conducted in China in mid-July, in the course of which a large number of lawyers and their staff were interrogated and arrested, placed under house arrest or simply disappeared, the BRAK wrote a letter which was translated into Chinese, to Song Dahan, Chinese Minister of the State Council’s Legislative Affairs Office. With regard to the symposium which had taken place in Beijing on 06./07.07.2015 in the framework of the German-Chinese Dialogue on the Rule of Law, the BRAK expressed its incomprehension at the measures and demanded the release of their Chinese colleagues.

Mrs. Ting-Winarto

Director at The German Federal Bar