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.

The would-be Robin Hood, Dr. Helmut Kramer, a District Court Judge, intends to bring a case against himself to draw attention to an absurd law.

"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:

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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