The legal profession in Germany (1855-1919)-Adolf Weissler

Publication date: 1914

The traces of a party spokesman office can be traced back to the earliest Germanic antiquity. The office only appears in full clarity in the Sachsenspiegel and Richtsteig and the medieval legal monuments grouped around these two main sources. The party is appointed by the judge a representative , usually from the judges of the court, whose office it is to speak to her the strictly prescribed formulas, in particular the questions to be put to the court, whereupon he returns to the bench without prejudice and in the same matter speaks rightly. In many courts there is compulsory auditioning, which means that the party is not allowed to speak without an auditor.

The idea was that the office was an unpaid honorary position. However, free of charge was given up at an early stage; As early as 1240, Luebian law established a fee schedule. The presidency becomes a career in life. Since the 13th century we have found permanent, once and for all, so-called “common” auditors who have a more or less exclusive right to speak for their court, but who are then usually no longer allowed to be judges.

At the end of the 15th century, with the canonical process, its trusteeship also penetrated the secular courts, whose constitution is based on the division into procuracy and advocacy,the first that of the speaker, the second that of the writer. Only the procurator is a party representative, the lawyer is an auxiliary person and is not allowed to appear in court. The power of attorney is office, the law firm is released. Only the procurature corresponded to the national structure of the auditorium; it merges with him. The unlearned auditors now feel compelled to call in learned lawyers who, initially in the role of irresponsible auxiliaries, lead the process, but soon also gain the right to appear in court. The now superfluous power of attorney ekes out its life for a while and disappears in the course of the 18th century (in Prussia in 1748 through the Codex Fridericianus); Remnants have been preserved well into the 19th century. [1]

The peculiarities of the power of attorney, official status, closed number, trustee compulsory passed over to the present lawyer. Even a short-lived attempt was made to transform it into a purely state office, in Prussia through the great Carmersche Legislation of 1780. The lawyer was abolished. Permanently paid assistant councilors were appointed to advise and question the parties , but only for larger matters and therefore in small numbers. The office of judicial commissioner was appointed to compensate the dismissed lawyerscreated, which were granted voluntary jurisdiction, preferably the notary’s office, as well as very limited litigation. But it was precisely this last one that was expanded in 1782 and given back to them in full in 1783, the institution of the Assistance Council being abolished. The result of the movement aimed at the abolition of the law firm was therefore that under the name of judicial commissioners, lawyers with a significantly expanded sphere of activity (through the notary’s office) moved in again. The General Judicial Order promulgated on July 6, 1793 confirmed this state of affairs, and gave the state the constitution, which it essentially retained until 1879. According to this, the judicial commissioners are appointed by the judicial administration for a specific court. Your previous education is that of a judge. They are civil servants. The Supreme Court exercises supervision and discipline, since the ordinance of April 30, 1847, an honorary councilor elected by the judiciary from among their number. The notary’s office is regularly connected to the office. The appointments were made so sparingly that the office usually granted a secure and good income and was often sought by judges;[2] On the other hand, ensure that the smaller dishes were supplied with lawyers. The great upheaval of 1848 left this constitution unaffected; only that the Kgl. Ordinance of January 2, 1849 introduced the name “lawyer”, which had become in use since the beginning of the century and means nothing more than the court procurator (law = court; lawyer = authorized representative or procurator).

All of this only applied to Old Prussians. In the Rhine province, when it came to Prussia, the French constitution was in force, which had retained the division of the profession in such a way that the party is represented by a procureur, later called avoué, who prepares the matter and then produces the Submits written pleadings and oral proceedings to the avocat, who in turn is not a party representative and must therefore have the avoué next to him during the oral proceedings. As a rule, only the lawyer is authorized to make an oral presentation. The power of attorney is an office, albeit a negotiable one; the law firm is released. The law firm is not subject to any fee schedule and does not sue for fees. A lawyer is compulsory in the form that the party is obliged to appoint an avoué. Bar associations exist for both professions. The notary’s office is separate from them.

This constitution was opposed to the German constitution, according to which, conversely, the procurator, but not the lawyer, was entitled to appear in court. It was because immediately canceled after the fall of the French rule and the Office of avoués with the lawyer by the name of lawyer-advocate combined into one office, next to but a shared legal profession was, in principle, the right to appear in court revoked was. This constitution existed in all areas on the left bank of the Rhine and was also introduced in Hanover and Braunschweig in 1850.

The lawyers who had less rights in these areas were quite different from those in the other German states; So in these release of the legal profession would have a whole  had different meaning than there; what corresponded to the German law there was the legal profession, and this was not approved, any more than in France the office of the avoués. This point was overlooked by the great process reform movement of the 19th century. In addition to the orality of the process, which can turn without a lawyer could not imagine that was released the legal profession demanded on lautesten, especially sent by Rudolf Gneistin the script: Freie Advokatur 1867. Baden, Mecklenburg, the Hanseatic cities already had them at that time; Austria introduced them through the lawyers’ ordinance of July 6, 1868. The work to establish a common judicial system, which began around the same time, already found so strong public opinion on this point that the question could be considered resolved. The German lawyers’ ordinance of July 1, 1878 explicitly stated the approval.

According to this (amended by the law of May 22, 1910), the constitution of the German legal profession today is as follows:

There is only one legal profession; the division into procuracy and advocacy, advocacy and advocacy is abolished. Admission is granted to those who have acquired the ability to be a judge, but only in their state and only for a specific court (localization), possibly for several courts at the same time (simultaneous admission). Before the collegiate courts, the parties must be represented by a lawyer licensed there (compulsory lawyer);another lawyer may only appear alongside the one who has been admitted and, with his approval, instead of the one who has been admitted; However, any lawyer can defend and act as counsel before any court in the realm. In the public meetings of the collegiate courts, he wears an official costume. A lawyer is assigned to the poor by the court to represent them free of charge. The lawyers admitted within the district of a higher regional court form a bar association ,which elects a board of directors to exercise supervision and honorary judicial power, which includes warning, reprimand, fines of up to 3,000 marks and exclusion. Appeal takes place at the Court of Honor, which judges with one of the Presidents of the Reich Court, three Reich judges and three lawyers of the Reich Court. A special bar association has recently been set up for Berlin.

The legal profession at the Reichsgericht is not released, but is filled by the Presidium of the Reichsgericht at its discretion. She has a special bar association.

Whether and how to combine the notary’s office with the legal profession is left to the state law. As a result, in Prussia, Saxony and almost all northern German states this connection exists in the form that some of the lawyers are appointed notaries, while in southern Germany (and also in Rheinpreussen) the notary’s office is regularly separated from the legal profession. However, in the last few years, Prussia has started to set up independent notaries’ offices in major cities.

The fees are stipulated by Reich law in the Fees Ordinance of July 7, 1879 (amended by Art. IV of the Civil Procedure Amendment of June 1, 1909 and Art. IX of the Act of May 22, 1910). They are charged according to the value of the object. It is levied, for example, for conducting an entire process including exchange of letters, oral hearings and taking of evidence

at a value of 60 to 120 Mk. 12 Mk.,
at a value of 200 to 300 Mk. 30 Mk.
at a value of 650 to 900 Mk. 72 Mk.
at a value of 2100 to 2700 Mk. 120 Mk.
at a value of 6700 to 8200 Mk. 180 Mk.

In addition, a flat rate of 20 percent of the fees is charged for writing and postage. Deviating agreements are permissible; They are mainly used in criminal proceedings, but they are very general. The party  subject to the litigation must always reimburse the other party for attorney fees . For non-litigation activities, the fees are stipulated by state laws (in Prussia on March 21, 1910).

In 1871 the German Lawyers ‘Association was founded at a Lawyers’ Conference in Bamberg , which since 1872 has created its own body in the legal weekly journal, which is constantly increasing in size. In recent times he has emerged particularly powerfully in the struggle over the civil litigation amendment of 1909, on the design of which he exerted significant influence. On January 1, 1912, it had 8,966 members, the vast majority of all German lawyers. He founded the Aid Fund for German Lawyerswhich collected a capital of 500,000 marks from annual contributions for a pension, widow’s and orphan’s fund, but has since supported those in need very strongly (currently with well over 100,000 marks annually) and still has a capital of well over 1 million disposes. The pension, widow’s and orphan’s fund, which came into being in mid-1909 with 700 members, already had 1,030 members at the beginning of 1914. All of these institutions are based in Leipzig. There has also been a death fund in Düsseldorf since 1910 and, most recently, a lawyers’ association for recreation facilities.

Independently of the Lawyers ‘Association, Soldan- Mainz publishes a German lawyers’ newspaper and runs the Economic Association of German Lawyers with a central bookstore for lawyers. Recently, an association of local court lawyers ( lawyers who are only admitted to the local courts and who do not need to be a lawyer) has been formed which publishes “notices”. To international summary of the legal profession attempts have recently been made; so far there is only one association residing in Vienna for the naming of foreign lawyers.

The number of lawyers has grown tremendously since the approval, which came into effect on October 1, 1879.

Fraud throughout the empire
in year the number of lawyers
1880 4143
1886 4794
1889 5249
1892 5535
1895 5985
1898 6642
1900 6992
1902 7262
1904 7852
1907 8583
1909 10064
1911 10800
1913 11546

Since 1880 the number of lawyers has increased by 160, the population of the Reich only increased by 51 percent (from 43 to 65 million). In 1880 there were 10,314 souls per lawyer, in 1911 only 6018. The increase is even greater if one considers the big cities alone. Strongest of all in Berlin.

There were 78 lawyers admitted to the Berlin City Court on September 30, 1879, and 111 at the District Court I, which took its place on November 22, 1879. This number rose

in year 1881 on 144       in year 1894 on 528
  1883   200   1896   547
  1885   273   1898   577
  1887   332   1900   586
  1890   408   1902   614
  1892   473   1904   634

 In the course of these 25 years the number of residents of the court has doubled, that of lawyers eight-fold. At the beginning of the period there was one lawyer for every 13,627 court residents, and at the end to 2979. From then on, a new, even more powerful increase sets in. It was admitted to the Regional Courts I, which was reduced in size in 1905

1906      722 Lawyers,
1907 893,  
1908 952,  
1909 976,  
1910 1015,  
1911 1063,  
1913 1182.  

Of which, however, a number (steadily declining, still 659 in 1913) was admitted to all three Berlin regional courts at the same time. All in all, lawyers acted in the districts of the three Berlin regional courts (which extend beyond Berlin), including those admitted to the chamber courts, in 1911 1511, but in 1913 as early as 1983 lawyers, one for every 2010 inhabitants. If one takes into account that the number of lawyers in 1879 was inadequate, that a number of the newcomers may not be dependent on the income from the legal profession, that business transactions and prosperity have increased very sharply, then this colossal, population Increase far behind and still continue to increase worst expectations. That Vienna at the end of 1910 1207,

Not quite as strong, but the rush in the other big cities was still excessive:

District Court
District
Number of lawyers including those only admitted
to the local courts,
excluding those only
admitted to the higher regional courts
Number of inmates in the court
.
It came to a legal
attorney court inputs
SAT
  1880 1889 1911 1880 1889 1911 1880 1889 1911
Munich I 90 83 403 237895 308650 584841 2642 3718 1440
Hamburg 131 132 282 388618 518620 1015795 2961 3828 3602
Hanover 51 62 132 340111 396250 600577 6668 6391 4549
Cologne 73 77 205 405249 478727 774657 5551 6217 3778
Wroclaw 41 68 155 417433 485970 660693 10181 7146 4252
Dresden 138 136 358 537841 641618 1046640 3897 4718 2923
Leipzig 157 148 364 473992 593038 924547 3019 4007 2540
Frankfurt 56 74 163 169301 224593 394979 3023 3035 2423
Stuttgart 41 43 117 341653 363681 530009 8333 8457 4529
Danzig 21 44 74 413401 443266 551704 19685 10074 7455
Nuremberg 28 32 126 228568 269707 431545 8163 8428 3424
eat 23 45 122 350696 465573 984206 15204 10346 8066

It turns out that up to the year 1889 the increase in the big cities was not excessive, was often even overtaken by the increase in the population, especially where the legal profession was already legally or actually released before 1879, such as in Hamburg, Hanover, Cologne, Dresden, Leipzig, Frankfurt, Stuttgart. From 1889 to 1911, on the other hand, there was a very significant increase in the number of lawyers in Munich, Breslau, Stuttgart and Nuremberg, which can be called monstrous increase, which is expressed in the lowering of the average number.

The economic situation of the legal profession cannot be shown numerically. Certainly it has become less favorable due to the release, but probably still much better than that of the doctors. Most of the lawyers in the provinces have their livelihoods, often quite generous; In the big cities, besides overemployed, princely income generating numerous desolate law firms can be found. This is not possible any other way in the liberal professions and is always so be; the question, however, is whether the relationship between the two is still healthy and natural. In any case, the future looks bleak. The legal profession, because it is exposed to corruption to a much higher degree than other professions, requires more than this the independence downwards, which gives a secure economic position. However, given the constant overcrowding, this cannot be achieved otherwise than by restricting the number. Up to now, the legal organs have strictly opposed them; In 1909, a meeting of the German Bar Association board members, and in 1911 the Würzburg Lawyers’ Conference, declared the numerus clausus in any form unacceptable by a large majority. However, a turnaround seems to be in preparation. A survey carried out by an association of Rhenish-Westphalian lawyers formed for this purpose in 1913,

In the course of the 19th century, the legal profession gained a reputation and influences that were previously denied it. She was involved in the German constitutional struggles to a remarkably high degree: Stüve in Hanover, Oetker in Kurhessen, Beseler in Schleswig-Holstein, v. Itzstein, v. Soiron, Hecker, Struve, Brentano in Baden, Schott and Römer in Württemberg, Braun and Schaffrath in Saxony, Giskra and Berger in Austria were lawyers. In the Paulskirche sat 90, almost a six of the assembly, including brilliant speakers like Ludwig Simon-Trier. The demands of the oral and public administration of justice, the jury trial and the constitution of the bar association were raised by the few lawyers associations that existed at that time, the idea of ​​a uniform German private law as early as 1840 by the lawyer Purgold-Darmstadt lively taken up and placed on the agenda of a general German Lawyers’ Conference in 1843, the first of its kind, which, however, did not materialize as a result of government objections. The legal profession was officially and much more extensively involved in the work on the Criminal Code, the Code of Civil Procedure and the Civil Code; For the latter alone, in addition to countless smaller works, a strong volume “Expert opinions from the legal profession” has been published. The extraordinary extent to which the legal profession is involved in the scientific penetration of the new law is generally recognized; Hachenburg -Mannheim, the profound scholar, Staub -Berlin, the astute practitioner, Fuchs-Karlsruhe, the bold and eloquent champion of the sociological school, are just a few of the large crowd. Among the practitioners, defenders of the first rank, such as Holthoff, Munckel, and Sello, must be mentioned here; It is impossible to name even the most outstanding of the others. The legal profession is very numerous in all self-government offices; the most influential politicians continually emerge from it: Schulze-Delitzsch, Forckenbeck, Miquél, Windthorst, and more recently Bassermann, Krause, Trimborn are just a few of the crowd. Perhaps no other profession is so involved in state and local government as the legal profession.

But the legal profession was also not lacking in attacks; yes, it can be observed that these have recently increased in number and intensity and have already had the success that lawyers are legally excluded from appearing before the commercial and merchant courts. However, the reasons for this are largely due to circumstances for which the legal profession is not responsible: the inevitable increase in costs caused by the involvement of legal experts, and the inevitable slowdown caused by negotiating with authorized representatives. The complaints about price increases, which are repeatedly raised in the Deutsche Richterzeitung, are directed less against the legal profession than against the law, which obliges the convicted to to reimburse his opponent for attorney fees in any case. But it is also accused of entangling and duplicating the processes, procrastination and untruthfulness, wrongful representation and catching clients. These are allegations that have always been made against the legal profession and that will always find a certain basis in the peculiarity of this profession. It will probably never be possible to ascertain whether it is more justified today than it used to be, whether it affects a large or a small part of the legal profession. What is certain is that the legal profession itself, through its authoritative bodies, strongly disapproves of such phenomena, that the courts of honor intervene against them with severity and only recently the Lawyers’ Day of 1913 proclaimed the unconditional duty of truth as a professional principle. It can hardly be disputed that the penetration of perishable habits is significantly promoted by the overcrowding of the stand, which has now been going on for decades. But as true as legal sense and honesty are German virtues, as true as the educated bourgeoisie is an excellent representative of German nature.

Literature:

Weissler, History of the Legal Profession . Leipzig 1905.
Finger, The Art of the Lawyer. System. Presentation of your basic questions. 2nd edition 1912.
Benedict, The Advocacy of Our Time, 4th edition Vienna 1912.
Friedlaender, The Lawyers’ Regulations. 1908. Addendum 1910.
Siegel, All the materials for the Lawyers’ Regulations. Leipzig 1883.
Decisions of the Court of Honor, published by the Secretary’s Office of the German Bar Association. Berlin. Since 1879.
Legal weekly. Organ of the German Bar Association. Berlin. Since 1872.
German lawyer newspaper. Mainz. Since 1906.
Journal of the International Association of Lawyers. Vienna. Since 1902.
The barreau. Organ for the professional interests of lawyers in Austria. Vienna. Since 1898.
Joachim, Fee Regulations for Lawyers. 5th edition 1908. Addendum 1909.
Pfafferoth, same 4th ed. 1905. Addendum 1909.

SOURCE: Handbook of Politics Volume Three: The Tasks of Politics, Chapter Fourteen: The Situation of the Spiritual Professions, Section 75, pp. 97-103


  1. In the Reich Chamber of Commerce, the procurator was also an advocate, but the advocate was not also the procurator, the procurator the more prestigious, mostly also more profitable office, the advocate the preliminary stage. But here, from the beginning, learned education, examinations, and preparatory service were required, and the number of procurators (not advocates) was fixed. A similar constitution prevailed at the court courts.
  2.  The following numbers give an image:
    year Number of Prussian
    rule law
    attorneys
    One lawyer
    accounted for a
    number of souls
    1851 1629  9997
    1856 1542 10766
    1861 1595 11114
    1870 2376 10050
    1876 2102 11705
    1879 2100 12218

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