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

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