Sat, Dec. 13, 2003

Bar Admission Criteria Reviewed

SW - Washington.   The German Supreme Court (Bundesgerichtshof/BGH) recently clarified the requirements for the admission to the German bar. The court held that a German national residing in the United Kingdom who passed the First but not the Second Legal State Exam in Germany and who is admitted to the practice of law in New York, after addional U.S. law studies, could neither gain admission to the practice of law in Germany nor enjoy the privileges of an established European lawyer. Such a lawyer may, however, practice in Germany using the foreign title; this practice may include the laws of the country that conferred the degree and granted the bar admission as well as a focus on international law.

The decision resolves a controversy between a German national and regional bar administrators. The plaintiff, the German national, had passed the first, but not the second comprehensive state exam in Germany. In addition, he gained admission to the New York bar after attending a U.S. law school. When the dispute arose, he resided in London and had not been admitted there as a barrister, solicitor or advocate. He applied for admission to the German bar which rejected the application, resulting in this lawsuit.

The BGH confirmed the rejection because he qualified neither under BRAO (Bundesrechtsanwaltsordnung), the rules governing the admission to practice law based on the standard legal education in Germany, nor under EuRAG (Europäisches Rechtsanwaltsgesetz), the European Union rules controlling the practice of European attorneys in Germany, as follows:

(1) The plaintiff did not qualify for admission under § 4 BRAO which requires the Referendar and Assessor degrees because he completed only part of the standard education.

(2) He failed to meet the alternative requirements of sections 11 Abs.1 S.1 EuRAG. While a candidate who establishes an actual and systematic practice as a European attorney in Germany for three consecutive years covering German and European law will be admitted as an attorney in Germany, the plaintiff did not prove such a practice.

(3) Candidates qualified for the European attorney practice may be admitted under § 16 Abs.1 EuRAG after passing an exam to evaluate the fitness for the practice of German law. The plaintiff's petition failed that test.

As applied to the instant facts, the court concluded that his admission was lawfully denied. The ruling is important because it clarifies that German nationals may not circumvent the standards for a qualifying legal education in Germany by seeking admission abroad. Whether it will control in the long term remains to be seen. Currently, the two-step system of legal education underlying the ruling is under review and a reform may follow.

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