Anyone who wants to represent a lawyer in civil cases before the Federal Court of Justice needs a separate Federal Court of Justice license. The admission hurdles are high, the circle is small, usually around 40 lawyers. There are currently 37 licensed Federal Court of Justice lawyers. This regulation and the associated election procedure have been controversial for years.
In 2019, the general assembly of the BRAK discussed the abolition of the so-called singular admission at the request of the Berlin and Düsseldorf bar associations, but ultimately a majority of the chambers decided to largely retain the system. On Friday, the chambers will meet again and again there is a request from the RAK Berlin. Its president Vera Hofmann thinks it is possible that things will be different this time.
BGH lawyer system: fossil or necessary?
A separate license is now only required at the Federal Court of Justice and only in civil cases. Until 2002, there were also restrictions at the Higher Regional Courts. When the localization principle was abolished, many predicted a bleak future. This has not come true. Any lawyer can represent clients before the Higher Regional Courts, the Federal Courts and even before the Federal Court of Justice in criminal cases without there being any obvious loss in the quality of advice.
The arguments for and against singular admission have already been widely discussed: The defenders point to the function of the appeal as an authority for legal standardization and further development and consider it important that lawyers specializing in appeal law ensure balanced and high-quality representation. The opponents of singular admission criticize the lack of specialization in individual fields and the high level of interference with professional freedom that the access restriction represents.
Only a small number of civil law cases actually end up before the court, so the lawyers are not exactly missing out on the deal of a lifetime. Nevertheless, it is difficult to explain to clients that they have to find a completely new legal advisor for the appeal, even if they are happy with their current lawyer.
In addition, there is criticism of the selection process for new BGH lawyers: admission is essentially decided by BGH judges – on the recommendation of the bar associations – which is unique and has been causing irritation in the industry for years. The finer points of the selection process in this election committee for lawyers at the BGH (§§ 164, 165 BRAO) are considered non-transparent and are barely regulated by law. The meetings are not public and those in the know like to compare them to state examinations or even inquisitions. It is also not set how often the elections should take place. Only last year, BGH President Bettina Limperg apparently identified a need for new BGH lawyers and initiated an election. It is the first since 2013.
Recently no majority for changes
The discrepancies in the selection process for new BGH lawyers also caught the attention of the representatives of the bar associations. At the request of the Berlin Chamber, among others, the presidents of the Bar Associations had already dealt with the issue of singular admission in 2019.
A committee set up specifically for this purpose had developed various models for how the BGH admission could be modernized. All options were considered, from the complete elimination of the singular admission to a sophisticated training program – a kind of specialist lawyer for appeal law – to a new election procedure. But ultimately there was no majority for a relaxation of the admission rules.
Instead, the general meeting decided that the election process needed to be more transparent and that the composition of the election committee needed to be adjusted. In addition, the Federal Ministry of Justice should no longer be responsible for the selection process, but rather the BRAK.
In 2019, the BRAK also passed on a corresponding proposal to the then-acting Minister of Justice Katharina Barley; the federal government wanted to examine possible legal changes. But nothing happened. According to current knowledge, the ministry did not pursue the matter any further. The upcoming election will take place according to the well-known rules.
More specialization, new faces, more power for larger chambers
Now the issue is back on the table and Vera Hofmann is confident that the chambers could be more open-minded this time. Things have changed on the part of the legal profession in recent years. “The 2019 compromise must be considered a failure. Even then, most chambers were of the opinion that something had to change – at least in the election process. I believe that many chambers are interested in a new compromise.”
Specialization within the legal profession has increased even further in the past five years, says Hofmann. BGH lawyers are generalists, but the litigation material increasingly requires specialized expertise. In fact, most of the 37 BGH lawyers do not have a specialist lawyer title. The RAK’s proposal therefore provides that in future all lawyers who have attended 60 hours of advanced training in appeal law, passed three exams and then provided evidence of annual advanced training will be allowed to appear before the BGH in civil cases.
There have also been some changes in personnel in the chambers, says Hofmann. Several chamber presidents have left since 2019. “There are many new faces.” Above all, however, there are changes in professional law – and these also affect the voting rules of the general meeting. “Each chamber used to have one vote, now the voting rules are weighted according to the size of the chambers.” For example, according to § 190 BRAO now gives each chamber between one and nine votes, depending on the number of its members. The Berlin Chamber of Justice, for example, has seven votes, the Munich Chamber of Justice has nine – and the Chamber of Justice at the Federal Court of Justice has one vote.
Hofmann cannot predict how the vote will go, but she thinks it is likely that a decision will be made on Friday. “The issue has been discussed,” says Hofmann. “In my opinion, the legal profession should now take the lead in this development instead of remaining in a situation that is no longer appropriate.”
Editorial staff beck-aktuell, Denise Dahmen, September 19, 2024.
