About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

2 J. Acad. Legal Stud. 2 (2006)

handle is hein.journals/jacadels2 and id is 1 raw text is: Rsose The Future of Legal Services: Putting Consumers First - A response Frauke Albrecht* 2 Journal of Academic Legal Studies 2-3 (2006) Correspondence to: Frauke Albrecht Wissenschaftliche Mitarbeiterin Freie Universitat Berlin Van't- Hoff- Strage 8 14195 Berlin The future of regulation within the legal profession is of international importance. Along with the globalization of goods, we are currently seeing a globalization of service offering also, including the traditionally national field of law. For this reason, it is important to take into consideration not only trends in the United Kingdom, but also in further countries - in this case Germany. In this manner, current trends may come to light, as well as possible results. Is legal advice a common good best served by a profession? Or is it perhaps a service like any other service, which should consequently be submitted to corresponding regulatory framework? This question has been raised in Issue No. 1 of this Journal,1 and it is in response that this article will attempt to outline the state of the current debate in Germany with regards to the law governing the legal profession. The debate concerning the future of this statute, the Rechtsberatungsgesetz,2 has indeed been vivid during the last few years.3 Before the enactment of the Rechtsberatungsgesetz, the market for legal services in Germany was completely open. Giving legal advice was not reserved for members of the legal profession, and it is indeed from those times that the term Winkeladvokat (hack lawyer) for less reliable service providers stems. However, it was also originally drafted and enacted in the Thirties of the Twentieth Century. Although the provisions deriving from Nazi ideology and the characteristics of a law enacted by the national socialists, e.g. the ban of all Jews from the legal profession, have long since been deleted, this fact has fueled the debate in the past.4 Under Art. 1 § 1 Rechtsberatungsgesetz, providing legal services was, with very few examples, prohibited for all non-solicitors. This remains the case today. The protection of consumers against unqualified legal advice has been held to be of primary importance to society, and the restrictions have thus been held justified by the German Supreme (Constitutional) Court (Bundesverfassungsgericht).5 It is a solicitor's privilege to assist others in realising or creating their rights for them, and the scope of this privilege includes, without being limited to, writing letters to authorities, concluding contracts representing someone else, or filing requests for payment.6 In an attempt to confine the field of application to less trivial subject matters, it has been acknowledged that matters which are regarded as being of a basically economical nature are not covered by the Act, although they would, strictly speaking, constitute a case of realising or creating a right for someone else. Thus, buying commodities in proxy for somebody else is not an activity reserved for members of the legal profession.' While the original Rechtsberatungsgesetz did provide for the possibility of obtaining permission to give legal advice also for non-solicitors by becoming a so-called Rechtsbeistand without academic background, but with a certain degree of knowledge of the law, this option was abolished by an amendment to the law in 1980. Subsequent to this amendment, such permission may only be granted annuity consultants, insurance consultants, freight auditors, sworn auctioneers, encashment offices and advisors in foreign laws. This restriction has been approved by the Supreme Court.' The reservation of all other law- related subjects to solicitors covers furthermore advice given altruistically. Strictly speaking, it is not allowed to give neighbours or friends legal advice, as it would infringe upon the aforementioned reservation. It should be noted that the reservation not only applies to the average citizen, but also to members of the legal profession who are not licensed solicitors. Judges, prosecutors or in- house counsel are subject to the same regulation as the literal man on the street. At least the application of the Rechts- beratungsgesetz to other lawyers has been challenged. A former judge of an Ober- landesgericht, a Higher Regional Court, successfully claimed violation of his freedom of action under Art. 2 s. 1 of the German Grundgesetz (German Constitution9). The Supreme Court held that the ratio of the provision did not justify prohibiting an adept lawyer from occasionally and altruistically giving legal advice.' The draft for a 2 JOALS (2006) www.joals.org

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most