CommentaryInstitutionalized by big law firms since the 1980s in the United States, pro bono today has become a global phenomenon. Given its strong legal profession and market, a unique outlier is Germany, where pro bono is not completely legal. The challenge is not the lack of need or supply of pro bono, but the ambiguity of German laws coupled with a legal aid scheme (Prozesskostenhilfe) to which judicial pro bono appears superfluous.
Under Germany’s constitutional principles of democracy, federalism, republicanism, and the rule of law, the Basic Law guarantees access to justice, including the right to a fair trial and the right to effective judicial protection. The Federal Republic and its States (Länder) fund legal aid, which covers both civil and criminal court proceedings (Prozesskostenhilfe) as well as out-of-court legal advice (Beratungshilfe). Despite this comprehensive system, one entry point for pro bono is where individuals and legal entities, such as non-governmental organizations, fail to meet the exacting eligibility criteria for judicial legal aid (Prozesskostenhilfe).
In addition, complex cases risk unjust outcomes under the legal aid scheme because lawyers working on reduced fees may not allocate the requisite amount of time and effort. Furthermore, projects that require special expertise, such as advising on securitization of micro-credit loans, would be better handled pro bono than by legal aid lawyers, and the fees would otherwise be prohibitively high. Other extra-judicial projects that require greater manpower, such as conducting a multi-jurisdictional research on children’s rights in the EU for a client like UNICEF, could only be taken pro bono. Because legal aid falls short of meeting these legal needs in Germany, pro bono offers a creative, robust solution to closing the justice gap.
The German bar associations, however, do not consider pro bono necessary. In 2013, the regional regulatory bar (Rechtsanwaltskammern, “RAK”)’s resolution regarding amending the Act to Modernize the Law on Legal Costs (Kostenrechtmodernisierungsgesetz, “KostRMoG”) decided that there is no need to organize pro bono activities since the current law guarantees access to justice for the poor seeking legal advice, and it is up to the state, not the individual lawyer, to provide access to justice. This is not only the public perception but also the opinion of German lawyers who oppose or remain neutral to pro bono.
What stands between theorizing and realizing pro bono in Germany is the regulatory framework that governs the legal profession. §49b of the Federal Lawyers’ Act, or Code (Bundesrechtsanwaltsordnung, “BRAO”) prohibits lawyers from charging clients lower than the minimum statutory fees required by the Lawyers’ Remuneration Act (Rechtsanwaltsvergutüngsgestez, “RVG”). The profession is also self-regulated by the Lawyers’ Professional Code of Conduct (Berufsordnung für Rechtsanwälte, “BORA”), which is silent on pro bono.
Within this regulatory framework German lawyers have advocated for pro bono as a responsibility to be fulfilled by the legal profession. However, more than a decade after 2008 when the provision of free extrajudicial legal advice became legal with the amendment of the Legal Services Act (Rechtsdienstleistungsgesetz, “RDG”), German laws still offer no absolute legal clarity on judicial pro bono.
The counterarguments that dispel fear and suspicion of legalizing judicial pro bono are reputational, grounded in the ethics and independence of the legal profession. On a national level, it would be a shame for the strongest economy and legal market in Europe to continue to ban pro bono. Germany should not have to consider or present herself as a developing country in terms of pro bono culture. On the individual level, the choice to represent a client pro bono should be the freedom of the lawyer. Lawyers act in their full professional capacity as members of the bar when they work pro bono, just as when they work commercially, because the lawyer’s professional activities (should) include pro bono services. Public service is at the core of the legal profession; a lawyer advocates not only for the interest of her client but also for the good of the public. Further, in Germany, legal advising is a reserved activity limited to lawyers (Rechtsanwalt) within the legal profession, and this reservation is called anwaltsmonopol (jurist monopoly). If the profession is to uphold anwaltsmonopol and its prestige, the profession must grant access to justice to those who need legal advice and representation where the legal aid scheme fails them.
Pro bono should be legalized by modernizing the Federal Lawyers’ Act (BRAO). But even if judicial pro bono is legalized, Germany will still have to deal with the cultural inertia that extrajudicial pro bono is currently having to overcome.
Ways to develop the pro bono culture in Germany include continuing to cultivate law students as problem solvers. First established in 2010, law clinics are becoming integral to legal education in Germany. Since the refugee aid crisis in 2015, Germany has seen a surge of refugee law clinics where law students provide legal support to migrants. Today with more than sixty law clinics across the country, young lawyers joining the profession with pro bono experience at law clinics are well-positioned to shape a sustainable pro bono culture.
As Germany has never done a legal needs survey, conducting one to identify what legal needs remain unmet will help clarify the role of pro bono in closing the justice gap. “Justiciable events,” or experiences that raise legal issues, are key to understanding access to justice from the client’s perspective, which is not well incorporated into the German justice system because it is designed in favor of the courts.
Finally, Germany would benefit from a recommendation, rather than a mandatory policy, from its bar association to give lawyers the legal certainty with which to practice pro bono. The promise of comprehensively legal pro bono in Germany, when realized, would not only advance the national public interest by complementing legal aid, but also serve as a model for European and other jurisdictions where pro bono is met with similar apprehension or skepticism from bar associations and legal aid lawyers.
Hannah Seulgee Jung is a JD Candidate at UCLA School of Law and the third-place winner of JURIST’s 2019 student commentary contest. She is expected to graduate in 2020.
Suggested citation: Hannah Seulgee Jung, Pro Bono in Germany: A Hybrid Solution to the Justice Gap Between Legal Aid and Private Practice, JURIST – Student Commentary, October 10, 2019: https://www.jurist.org/commentary/2019/10/hannah-jung-germany-pro-bono/
This article was prepared for publication by Brittney Zeller, Deputy Managing Editor for JURIST Commentary. Please direct any questions or comments to her at commentary@jurist.org
