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Germany International Trade in Legal Services

Germany International Trade in Legal Services

HOME COUNTRY LICENSING QUESTIONS

Is there legislation governing the legal sector

Federal Lawyers' Ordnance ("Bundesrechtsanwaltsordnung", BRAO) Rechtsdienstleistungsgesetz (RDG.) vom 12.12.2007

Under what title do lawyers practise?

Rechtsanwalt.

How does an individual lawyer obtain a "licence" to practise law? How often must this be renewed?

 

 

Admission to the Bar without annual renewal, but with ongoing supervision of lawyers, is conducted by 27 regional bars and the bar at the Federal Supreme Court of Justice. In order to become a lawyer in Germany an individual must have completed around nine semesters of university education in Law or related subjects, leading to the first state exam (“Erstes Staatsexamen”) which is administered by the Ministry of Justice. This is followed by a two-year period of legal clerkship (“Referendarzeit”), followed by the second state exam (“Zweiten Staatsexamen”).

Does this entitle the holder to practise throughout the country? If the law license only permits one to practice on a sub-national level, please explain the jurisdictional limits

Every lawyer becomes a member of his Bar (“Rechtsanwaltskammer”) by act of law when he is accredited as a lawyer. In the Federal Republic of Germany there are 28 such lawyer chambers. The Federal Bar is a statutory body for self-administration of the legal profession and as such guarantees the independence of the legal profession and protects it from the influence of the state and at the same time accentuates the status of the lawyer as an independent organ of justice. Lawyers are obliged to be members of their local Bar. The Federal Bar (“Bundesrechtsanwaltskammer – BRAK) safeguards, advances and represents the interests of its members. The local Bars accredit new lawyers, deal with misconduct and other professional issues.

 

Are there certain activities that are "reserved" to those who are licensed to practise law in the jurisdiction?

German Rechtsanwälte have exclusive rights to represent clients in German Courts and provide all purpose general legal advice. These rights are shared with various other legal professionals in relation to specific areas such as tax, pension advice, insurance, claims collection, patent matters and certain areas of legal aid.  Bankruptcy administration is an unreserved activity.

Do you need to hold local nationality to be eligible to practise law?

German nationality is not required for the practice of law.

What legal forms can lawyers work in? (e.g. self employment, partnership, limited liability partnership, multi-disciplinary partnership, incorporation)

Lawyers are permitted to practise as sole practitioners, in partnerships and in corporate bodies. In the case of sole practice or partnerships (general or limited) no additional licensing is required. In the case of corporate entities, separate registration is required with the court register and law firms taking these forms must include the term “Rechtsanwaltsgesellschaft“(law firm) in their name.  The treatment of foreign companies raises still some legal uncertainty and should be discussed in individual cases with the relevant local Bar and Court.

What other ethical or regulatory requirements must a licensed lawyer comply with? 

Lawyers are subject to the statutory provisions of the German Federal Lawyers' Act (Bundesrechtsanwaltsordnung) and to the Lawyers Professional Code of Conduct (Berufsordnung der Rechtsanwälte).

Do law firms need to receive a "license" (or permission/approval) to practice law?

Law firms, apart from those taking corporate forms, do not require separate licences to practise but lawyers must obtain prior authorisation in order to be able to practise in certain forms.

Which authority issues licences? Are there different authorities for individuals and firms? 

Authorisation to practise is given by the 27 regional bars (RAK) or the Bundesgerichtshof (BGH - Supreme Court Bar). Individual regional bars can be accessed via www.brak.de/die-brak/regionale-kammern/. Authorisation is required both for individuals and for corporate forms of law firm.

   

INDIVIDUAL FOREIGN LAWYERS

Are there any explicit rules or restrictions other than visas on fly in fly out practice of law? Ie. Do you need to obtain a licence for temporary practice?

The provision of temporary services in Germany by a lawyer from a non-EU Member State under his/her home title is not permitted. EU lawyers may practise temporarily as a result of the Lawyers Services Directive (77/249/EEC). 

Can a foreign lawyer obtain a visa to visit clients or to market but not to practice?

Germany is one of the 25 countries in Europe that has signed the Schengen agreement. This allows a non-EEA national to obtain a visa to enter one or more of the Schengen countries for business or tourism purposes on a single visit of up to 90 days, or to make multiple entries to the Schengen area on any number of occasions over a 180 day period, provided none of these is for longer than 90 days.  A number of non-EEA countries are exempt from visa requirements.

Can a foreign lawyer obtain a licence to establish and practise as a foreign legal consultant and what is the scope of this limited licence?

A foreign lawyer from a state which is a signatory to the GATS agreement may establish in Germany under his home title and can practise home country law and international public law provided that the foreign lawyer exercises a profession in his home country which in education, competencies and legal position is comparable to the position of a Rechtsanwalt in Germany. The Federal Ministry of Justice determines which legal professions which are acceptable. Licences for foreign lawyers are granted by local bars.

Are there any conditions that must be fulfilled once a foreign lawyer has been granted a limited licence (e.g. residency requirement)

There are no nationality, residency or reciprocity requirements imposed on a foreign lawyer once he/she has registered with his/her local bar as a foreign lawyer under the Regulation on the Implementation of § 206 BRAO for lawyers from non-European countries.  The activities of European lawyers in Germany are governed by a separate regulation (EuRAG).

Are there any conditions that must be fulfilled for a foreign lawyer to qualify for a limited licence? (e.g. prior practice)

The granting of a limited licence to a foreign lawyer requires membership of the local Bar.

Are foreign lawyers permitted to undertake arbitration and mediation? Yes
Are foreign lawyers allowed to appear in court under any circumstances?

European Union/EFTA and Swiss lawyers may all appear in court provided they do so in association with a local lawyer. Other nationals are not permitted to appear in court.

Can foreign lawyers requalify as local lawyers?

 

 

EEA lawyers may fully requalify as German lawyers following the European Establishment Directive 98/5/EC, either by examination or by assimilation over a three year period of continuous and effective practice in Germany. Non-EEA lawyers must undertake the full national process of qualification in Germany.

FOREIGN LAW FIRMS

Can a foreign law firm obtain a licence to open an office?

Yes - although foreign law firms must be authorised by the relevant local Bar Association in accordance with the provisions of the "Federal Lawyers Act".

Even if a foreign law firm does not require a legal licence must they register in some form in order to set up an office? (e.g. with a ministry of company affairs etc)

Foreign law firms must register with the local court register if they have a corporate or limited liability form.
Are there different types of foreign law firm 'licence'  (e.g. Joint Law Venture, stand alone foreign licence etc)

Not applicable

Is there a quota on the number of licences available?

No

Are there geographical restrictions on foreign firm licences or on the number of branches a foreign firm can have?

No

Are there "scope of practice" rules that apply directly to foreign law firms (as opposed to lawyers themselves)? (e.g. home, host, international law), if so, what are they? There are no scope of practice rules that apply to firms as opposed to individual lawyers.
Are there restrictions on the corporate form a foreign law firm can take? Foreign (non EU) lawyers may only establish as sole practitioners or partnerships.
Are there rules about the name a foreign law firm can take? No
What entity grants a 'license' to a foreign law firm? If that entity is on the Internet, please provide the URL Regional Bars admit individual foreign lawyers according to their qualifications and will then also authorise them to open offices. There is no licensing procedure as such.
   

EMPLOYMENT AND PARTNERSHIP

Are there restrictions on the ownership share of foreign lawyers in a law firm?

Not in the permitted forms.

May a domestic lawyer be employed by a foreign lawyer or law firm?

Yes

Can a domestic lawyer enter into partnership with a foreign lawyer?

Under BRAO § 59a, Rechtsanwälte may also enter into any form of professional association with members of the legal professions from Member States of the EEA and parties to the WTO.

Can a domestic lawyer or domestic law firm employ a foreign lawyer?

Yes

   

OTHER USEFUL LINKS/SOURCES

Other useful sources or comments or links

German Federal Bar Association: www.brak.de; German Bar Association: http://www.anwaltverein.de/