All lawyers want to be judges

Still not: civil servants are not lawyers

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Civil servants cannot become or remain lawyers. State employees try again and again to change this case law. But civil servants are not lawyers, the BGH ruled again how Martin W. Huff explained.

In a nutshell, the Federal Lawyers' Act (BRAO) puts it: Admission as a lawyer is to be refused or revoked if you are a judge, civil servant, professional soldier or temporary soldier, according to Section 7 No. 10 and Section 14 Paragraph 2 No. 5 BRAO. But time and again, licensed lawyers who become civil servants do not want to accept this provision. The bar associations are quite generous here. Anyone who becomes a civil servant on probation and can be dismissed at any time can keep his license, but only has to let it rest during the probationary period so that all advantages of a license are not lost, such as the loss of the acquired specialist lawyer title.

These regulations also apply to university professors who are employed as civil servants, who, however, are still allowed to act to a considerable extent in front of the courts. The Administrative Court Code, the Social Court Act, the Criminal Procedure Code and the Federal Constitutional Court Act expressly allow representation by professors at universities, i.e. usually universities and technical colleges, in court proceedings in the respective jurisdiction. A number of professors even advertise the possibility of substitution clearly on their websites. But you are not allowed to appear before the civil courts, and out-of-court representation is also prohibited under the Legal Services Act. Only those who are employed as professors can keep their admission. Many lawyers are now working at universities of applied sciences.

A lawyer wanted to stay the same when she was first appointed as a university professor, a civil servant on probation and then in 2017 for life. She said the BRAO's regulations were illegal when the bar association revoked her admission. The Baden-W├╝rttemberg Lawyers' Disciplinary Court dismissed the action, as the BRAO's prohibitions were not objectionable. The appeal to the BGH was not allowed because the matter was of no fundamental importance. The application submitted by the lawyer to the BGH for approval of the appeal was also unsuccessful. The Lawyers' Senate of the Federal Court of Justice (BGH) finds clear words why this application is unsuccessful (decision of February 26, 2019, AnwZ (Brfg) 49/18).

The decisive factor is the status itself

First of all, it is not a violation of the general principle of equality if lawyers are allowed to be lecturers and examiners at universities, but civil professors but not lawyers. For reasons of clarity and legal certainty, the legislature focuses solely on the civil service status, but not on the office assigned to the lawyer and its content-related compatibility or incompatibility with the profession of lawyer. So far, the Federal Constitutional Court has not objected to this legal regulation either.

Because a university professor is allowed to be a lawyer - just not a civil servant. I do not derive such a claim from the European Convention on Human Rights (ECHR). In order to secure the position of the lawyer as an independent organ of the administration of justice, it is permissible not to allow this in the civil service relationship. Because such a relationship obliges the lawyer to be particularly loyal to the state and thus endangers his independence. This legislative decision is covered by both the Basic Law and the ECHR.

The BGH judges rightly focus solely on status and independence. The Senate is consequently sticking to its current liberal line. In contrast to the past, no longer any activity in the public service is incompatible with being admitted to the bar. It depends on the appearance and the specific activity, according to current case law. For example, the BGH had approved in-house lawyers for activities in the public service if they were not active in a sovereign role, for example as labor lawyers for a city (ruling of October 15, 2018, Az. of October 15, 2018, reference number AnwZ Brfg 20/18). But someone who is a civil servant cannot take advantage of his position and at the same time want to be an independent legal advisor.

The author is a lawyer and managing director of the Cologne Bar Association as well as the Legerlotz Laschet law firm in Cologne.