Berlin (German Bar Association). How should the deals made between the Trump administration and some US law firms that have a presence in Germany be assessed under the German rules governing the legal profession? The independence of lawyers is one of the core professional obligations in Germany. With this in mind, the German Bar Association (DAV) has drawn up a position paper.
Revocation of security clearances, exclusion from government contracts: Those who have made themselves unpopular with the new US government – for example through representing political opponents – were recently faced with possible sanctions through executive orders. To avoid these, some US law firms struck deals with the US government, in which they agreed to provide pro bono legal advice, among other things. The total volume of legal services promised is said to amount to almost one billion US dollars. Whether these (undisclosed) agreements also contain the condition that the law firms concerned do not act against the Trump administration can only be assumed. It seems most likely.
“We have observed this very rapid development with great concern and asked ourselves what kind of impact such agreements have on US law firms operating in Germany, who are subject to German professional law, as well as on our colleagues working for them,” explains Dr. Ulrich Karpenstein, lawyer and Vice President of the German Bar Association. One of the core values of the legal profession in Germany is the independence of lawyers, laid down in the German Federal Code for Lawyers (BRAO). “The 'freedom of the legal profession', which was achieved in the 19th century with painstaking effort, primarily means freedom from dependence on the government,” emphasizes Karpenstein.
For Professor Dr. Thomas Gasteyer, Chairman of the German Bar Association’s Committee on Professional Practice, this entails consequences for US law firms active in Germany: “Agreements by which lawyers dispense of their independence from the state are likely to prove illegal under the German law on the legal profession.”
If there are indications that a lawyer’s obligation of independence has been violated, the competent bar association can initiate disciplinary proceedings, which can have serious consequences. However, even in the event of the most severe sanction against a US law firm – the withdrawal of the authorization to provide legal services in Germany by the Lawyers’ Courts – the impact on its lawyers working in Germany and their economic and social freedom of association would be serious but limited: “The individual admission and the possibility of working together in other professional partnerships would remain unaffected for our colleagues,” explains Gasteyer.
For detailed explanations please read the German Bar Association’s position paper “US law firms in Germany and the independence of lawyers”.
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