I have written here before about Germany’s most exclusive bar, the fourty or so lawyers admitted to the Federal Supreme Court (Bundesgerichtshof) in civil matters. Every now and then, attempts are being made to reform this part of the German legal system. Mainly, these attempts take the form of challenges in the courts against the way the members of the bar are selected and appointed – thus far, these challenges failed. The current system has been upheld time and again by the Federal Supreme Court and the Federal Constitutional Court (Bundesverfassungsgericht).
When the presidents of the German bar associations (Rechtsanwaltskammern), the self-governing bodies of the German legal profession, met earlier this month, two reform proposals for the Supreme Court bar were on their agenda. A very bold proposal suggested to abolish the exclusivity altogether and to open up representation at the highest court in civil matters to every lawyer. The second one was less revolutionary; it proposed to grant admission to those who qualified in a procedure similar to that for lawyers seeking to qualify as certified specialists (Fachanwalt) for certain areas of the law.
Both proposals were dismissed by a majority of 17 out of 27 votes. What the presidents of the bar associations could agree upon, however, was a reform proposal for the process of selecting new members for the Supreme Court bar. The key element, it appears, would be to shift the responsibility for the processor from the Federal Ministry of Justice (BMJV) to the German Federal Bar (BRAK) itself.
Here is a translation of the relevant part of the German Federal Bar’s press release:
“The discussion of the Federal Surpeme Court bar took up a lot of space. The 27 presidents present discussed various reform models. The background to the reform proposals are opinions within the legal profession wanting to facilitate access to the Federal Supreme Court by abolishing exclusive admission for all lawyers. The application of one of the bar association to abolish exclusive admission without any replacement was not successful (17 votes against). The model of abolishing exclusive admission to the BGH in civil cases and replacing it with an admission model similar to that for a specialist lawyer was also rejected by a large majority (17 votes against).
After a controversial and critical discussion, the general meeting decided by a majority of 17 votes to retain the Federal Supreme Court’s bar association. The proposal that was finally adopted suggests that the Federal Supreme Court’s bar association will be retained while the admission is reformed. In the future, it will no longer be the Federal Ministry of Justice’s responsibility, but that of the German Federal Bar. The composition of the election committee shall also be amended. In accordance with the resolution passed, the BRAK will work with the legislator to change the Federal Lawyers’ Act (BRAO) as regards the admission and selection procedure.
“The current system of exclusive admission to the Federal Supreme Court has generally been successful, both for the benefit of the judiciary and for the benefit of clients,” says BRAK’s President Dr Ulrich Wessels. “The presidents have examined the issue from all sides and discussed the pros and cons of abolition and reform. It is not least due to the expertise and wealth of experience of the Surpeme Court lawyers resulting from their exclusive admission that – also in the interests of the client – no majority could be found for an abolition. At the same time, the modified admission model will strengthen the self-governance of the legal profession”.