Translation of this German
article from http://www.beschwerdezentrum.de/_aktuell/2003kw12.htm
Dr. Helmut Kramer's fight against the legal
advice law.
THE FIGHT AGAINST THE LAW PERTAINING TO
LEGAL ADVICE.
"We, the German legal profession, owe our
deepest gratitude to the Führer and Chancellor for the law
pertaining to legal advice which will prevent the abuse of the
legal advice system: this body of legislation, impossible in a
liberal Marxist State, could only flourish in the firm soil of
nationalism and professionalism. This law has been some years in
preparation on the part of the Association of German National
Socialist Lawyers. Inasmuch as Jewish lawyers are still
practising, they owe this to the Führer and have to prove
themselves worthy of his generosity. The professional state
examination leads to a selection procedure which, rather than
being based on sometimes haphazard grades, should provide proof
of the correct national socialist attitude to life and to legal
thinking."
(Raeke, co-author of the Legal Advice Legislation, publ. in the
Juristische Wochenschrift 1933 page 1844 quoted by Egon Schneider
in the MDR 30 Jg issue 1/1976 p.1)
The abolition of this Legal
Advice Law dating back to the year 1935, is the pivotal
demand of the "Association Against the Misuse of
Legislation". The majority of specialists agree that this
legislation had, in essence, only one purpose: the protection of
the legal profession against competition and consumer protection.
Professor Volker Emmerich (University of Bayreuth) expressed his
opinion in a television interview as follows: "The 1935
Legal Advice Law had two objectives: The first objective, always
given priority, was consumer protection. The real purpose and the
real objective - protection of the legal profession...This law
has been continuously honed...Lawyers have seen to it being
tightened to the point that it will remain relevant for the
foreseeable future." (Broadcast on FACT 20 January 2003
"A Case for Ederer")
The Bar Association openly and as a
matter of course pursues this goal to protect its members from
economic disadvantage even at the expense of those with
inadequate means seeking legal advice. This was made abundantly
clear when a former judge at the High Court of Braunschweig, Dr.
Kramer, was refused by the Braunschweig Bar Association to
fulfill the role of
attorney to some impecunious applicants (like asylum seekers)
whom he
had advised and wanted to represent.
The reason for the refusal was given by the argument that an
applicant who announces his intention to demand no fees,
precludes himself from admission to the bar. (Quote König,
Hartmut: The Law pertaining to legal advice in danger, Journal of
Rechtspolitik 2001 page 409)
For whatever reason: various German
governments have been firmly holding on to this law and even
managed to defend it against the liberalising efforts on the part
of the European Union, by labelling it a Consumer Protection Law.
Dr. Hartmut König, a Judge at the
Brandenburg High Court, is a decided supporter of this law.
(viz.his 1993 dissertation entitled "The Law pertaining to
Legal Advice - basic questions and the need for reform"; see
also panel
discussion below). He must, however, have had some concern
about the continued existence of this law because of the action
taken by the "Robin Hood" of the German judicial
system, Dr Helmut Kramer, the now retired High Court Judge, who
has been trying to finally thwart this law by having
it taken up by the Federal Constitutional Court. He is doing
this by accusing himself of offending against it while knowing
the inevitable consequences. The chances of his success are not
bad, says his adversary in this legal battle, Dr. König, in the
above mentioned article.
"Now a new attack against the
bulwark of the legal profession has started which may bring it
down. The danger facing the Law pertaining to Legal Advice is not
its national socialist past, though its opponents do point that
out. But apart from a certain illiberality that also pertains to
laws from other historical epochs, it is clear to those who can
and will read, that nothing of national socialist thought
processes can be discerned here. The real danger lies in the
constitutional complaint laid by Dr. Helmut Krämer, the retired
Judge of the Brandenburg High Court, who has been fighting this
law pertaining to legal advice, not merely by words but by
putting his professional life on the line. He has put himself
forward as counsel for the defence in a number of cases, has not
charged his clients any fee and promptly accused himself of
having offended against this law. During proceedings against his
breach of the law, he pointed out that he intended to continue to
give free advice on humanitarian grounds.
In this way he acted in a 'businesslike' manner
in the spirit of the accepted subjective interpretation of things
as they stood. Obtaining legal advice occurs not only on payment
of a fee or after considerable consultation but even when the
lawyer - on just one single occasion - declares his intention to
give free advice. It is, therefore, irrelevant whether the legal
adviser is acting altruistically or simply wishes to help
relatives or close acquaintances. On the basis of the prevailing
attitude of acceptance of this law by the judges, they had no
alternative but to find Kramer guilty of offending against this
law. Expecting the outcome, Kramer did not leave it at that. To
counter the argument, he as a fully qualified attorney, admitted
to the bar and entitled to follow his humanitarian principles
without fear of prosecution, submitted a preliminary query to
this effect, to the Bar Association of the High Court of the
district of Braunschweig. This was denied on the basis of para 49
b BRAO.
The admission of an applicant who announces his intention to
charge no fees, is deemed to be unacceptable. With the steps
that Kramer took he succeeded in demonstrating the absurdity of
the effect of the Law Pertaining to Legal Advice. This man of
impeccable character, having passed all judicial State
examinations and with a lifetime's practical experience of
problems of material law and a brilliant humanitarian, has been
forbidden to give humanitarian help. The reason for the absurdity
of this law not coming to light earlier, is the fact that while
the interpretation of the Legal Advice Law, though recognising
that advice was given pro bono for altruistic purposes,
nevertheless allowed this to appear as an offence while totally
disregarding the number of unreported cases. (In addition the
author commented: "Recently, just one case has come to light
where a son brought several cases on his mother's behalf and was
charged with an offence against the law. OLG Oldenburg NJW 1992,
2438")
In October
2000, Stefan Fügner handed in a petition to the German
Government's Petitions Commission (ombudsman) "requesting
the government's involvement in the preparation for the
abandonment and total abolition without any substitution of the Law pertaining to Legal
Advice dated 13.12.1935 (RGBl,IS.1478) and a change in the
introductory law regarding insolvency and other laws dated 19
December 1998/BGBI lS 3836)" He did this as a result of the
Utility Companies' attempt to disbar him by clearly misusing the
Legal Advice Law because they feared that the advice he had
already given would result and continue to result in enormous
losses to electricity suppliers.(viz. The
tricks of the energy
suppliers' Mafia).
He reasons for his application are as
follows:
- Para 3 section 1 of the Legal Advice Law empowering a
business enterprise to deal with legal matters that
concern their immediate ability to advise. does not
provide sufficient security within this law for the
adviser since the existence of the exception can be too
freely interpreted.
- The presentation of the existence of this exception has
led to a Judge at AG Bensheim to order a house search on
the basis of the Legal Advice Law finding of 5.9.2000 AZ
1 Js 27580/00-5 Gs.(**), The Legal Advice Law has thus
done away with Article 1 as well as Article 13 of the
Basic Law. Grounds for reasonableness are not given.
- The Legal Advice Law of 13.12.1935 is an old law of the
Third Reich and was used to discriminate against Jews. It
is difficult to explain to young people today why
judgments are based on this law in Germany today,
especially when it comes to explaining to them the
uncertainty of the law in the provision of an efficient
advisory service.
- No country in the world needs a law like this for its
citizens. It is therefore difficult to justify
retroactively why, after doing away with discrimination,
we need such a law after 65 years.
- Because of this law, all counsellors (tax, realtors,
personal, entrepreneurs or energy producers) are totally
deprived of legal security. An efficient advisory service
can only develop if this law is repealed. The exceptions
to this law as they stand are not sufficient.
- It is very doubtful that this law conforms to EU
requirements as it discriminates greatly against EU
citizens in Germany who wish to act as advisers.
- With the increased demand for advisory services in
innumerable areas of business in the service industries,
this Legal Advice Law is out of date and no longer
relevant.
However, this application was rejected (viz the reply
of the Ministry of Justice in November 2000)
But in the end there is the Robin Hood of German Justice,
Dr. Helmut Kramer. Let us see if he succeeds in achieving what
his colleague, Dr. König, fears...
Dr. Peter Niehenke
24.3.2003
** Remarks from the author: Read the complaint
of the person concerned and the cynical rejection
of the complaint by the District Court of Darmstadt who were
of the opinion that the suspicion of an offence, which a
disregard for this law is, justified the intervention in the
right of the citizen because of the "seriousness and
strength of the suspician."
_________________________________________________________________________
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