Germany’s Most Exclusive Bar

Closed Shop” (Geschlossene Gesellschaft), was the headline of Juve’s September cover story. JuVe, the legal industry magazine, reported on Germany’s most exclusive bar: It comprises the 37 lawyers admitted to the Federal Supreme Court (Bundesgerichtshof or BGH) in civil matters. To put that number into perspective: the Federal Supreme Court has 128 full-time judges. Taking into account the judges dedicated to the criminal law section of the Court, my estimate is that some 90 judges deal with civil law matters, that is, almost 2.5 judges per lawyer. Quite an unusual ratio, I would think, and quite a task for the poor lawyers to keep all these judges busy.

Anyway, it was the JuVe article that triggered this post about these happy few enjoying the monopoly to try the law-defining civil cases before the best and brightest judges in the county. JuVe did shed some light on the inner workings of the bar. It conducted a survey amongst business law firms, asking who their favourite BGH lawyer was. The survey produced a clear winner, Jordan & Hall.

The background interviews reported by JuVe alluded to the fact that some of the happy few may not be as happy as one is led to believe, and that a substantial amount of time is spent on filtering out the cases that should not be allowed to proceed to appeal – not a lucrative task and sometimes bordering on pro bono work. What also clearly came across is that the level of specialization increasingly seen in the other parts of the profession quite simply can not be achieved, if some thirty lawyers must deal with the entire gamut of civil disputes. They are of course extremely specialized in each and every aspect of appeal procedures (Revision), but there appeared to be a common theme in comments of the first- and second instance lawyers who effectively instruct the BGH lawyers that they are not, as a group, very open to teaming up with them and to taking their ideas on board.

Did I say Germany’s most exclusive bar? Thinking about it, it appears to be the only exclusive bar left. All other restrictions that were in place when I started to practice – a sentence that makes me feel old – have step by step been abolished: the requirement to be admitted in the district of the court (Landgericht) where you appeared in civil matters, or the restrictions on appearing in appeal courts (Oberlandesgerichte), which varied from federal state to federal state. The restrictions to appear before the Bundesgerichtshof  in civil matters are the only ones left.

There were never any similar restrictions in criminal law, so a newly admitted lawyer could appeal a life sentence in a murder case, but a thirty year property law veteran could not argue a dispute in his or her field of expertise before the BGH. Never quite understood the logic behind this, to be honest. But as of now, all challenges of the constitutionality of the restrictions and the selection process were unsuccessful. The current practice was upheld for the last time, I believe, in a ruling of the Federal Constitutional Court (Bundesverfassungsgericht) in 2008.

BGH lawyers, in addition to their exclusive rights of audience in civil matters before the Bundesgerichtshof, can only appear before the other federal courts (Bundesarbeitsgericht, Bundesfinanzhof, Bundessozialgericht, Bundesverwaltungsgericht and Bundesverfassungsgericht) and in international fora, but not in the ordinary German courts. BGH lawyers can not be partners in a law firm with or otherwise associate with ordinary lawyers. They may choose to associate themselves with one, and only one, of their fellow BGH lawyers. Indeed, a fair amount of BGH lawyers are sole practitioners – at least on paper. One of the better-kept secrets of the legal profession, and one not addressed by JuVe, is how many associates work behind the scenes, not appearing on the firm’s letter head or web site – and never in court. To be fair, looking at the bios of BGH lawyers, a fair number of them did start their careers working for a BGH lawyer. So perhaps it’s not as bad as I made it sound.


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