LOOSENING CONSTRAINTS ON THE GERMAN LEGAL PROFESSION?

The German Constitutional Court (Bundesverfassungsgericht) has issued two decisions that appear to be part of a trend toward loosening constraints on the legal profession. In one case, the court overturned a lower court ruling that upheld an order requiring a lawyer to take the words "specialist in transportation (or traffic) law" (Spezialist in für Verkehrsrecht) off of his letterhead since the legal profession had no corresponding official title. (Decision here, press release here.) In another case, the court overturned a lower court ruling that upheld a fine levied against a retired judge who admitted to providing free legal advice. (Decision here, press release here.) In both cases, the court emphasized that the occupational freedom of the individual outweighed any social interest in protecting clients or in safeguarding the integrity of the legal system as a whole (especially from what would be called "unauthorized practice of law" in the U.S.).

I haven't done a full-blown study of German constitutional employment law, and I'm not an expert in this area by any means, but there have been several cases over the past few years in which the court has sided with the individual in challenges against restrictive rules promulgated by professional organizations. Many of these rules have to do with advertising.

It is not surprising that restrictions on advertising are facing pressure from individuals seeking to market themselves and develop their own "brand identities." This process is already well advanced in the U.S., where lawyers can advertise in ways that their German colleagues would find shocking and crass. I would bet that some older American lawyers find this process disorienting as well.

Back to Germany: I suppose one interpretive question would be the extent to which these rulings are 1) the result of the inevitable boundary clashes between individual freedom and professional self-organization -- i.e., far from threatening professional power they actually uphold it by protecting the boundaries in a new market context -- or 2) the result of a society-wide pressure on professional organization that the judges support and the constituency for which they want to court.