How a Ukrainian can become a lawyer in Germany (webinar)

How difficult it will be for a Ukrainian lawyer to start practicing in Germany, what formal requirements will have to be fulfilled and how much it will cost - these and other aspects were revealed by Valentyn Gvozdiy, the UNBA representative in Germany, during the regular webinar «Access to the Legal Profession Abroad».

Legislation

The practice of law in Germany is mainly regulated by the Federal Bar Association Regulation (BRAO). It enshrines the fundamental provision of the German legal doctrine - the lawyer is an independent body of justice.

The website of the German Federal Chamber of Advocates contains, among other things, the main laws on admission to the profession of lawyer, rights and obligations related to the practice of law. Some materials have already been translated into English for convenience.

The BRAO is supplemented by the Professional Code of Attorneys (BORA) and the Code of Specialist Attorneys (FAO). The Act on the Activities of European Lawyers in Germany (EuRAG) and the regulations implementing Section 206 BRAO for lawyers from non-European countries also apply to foreign lawyers working in Germany. When practicing across borders in Europe, a lawyer must also comply with the rules of the Council of Bars and Law Societies of Europe (CCBE). A large number of other regulations affecting the practice of law are contained in other laws, such as the Law on the Provision of Legal Services, the Money Laundering Act, the Civil Procedure Code or the Criminal Code.

Another key act regulating the German legal profession, thanks to which it is organically integrated into the structure of the country's social market economy, is the Federal Law on Attorneys' Fees. The rates of fees and reimbursable expenses stipulated by the law are based on the real standard of living and are applied taking into account the type of legal assistance and the value of the case (Gegenstandswert). In addition, the lawyer has the right to offer the client an individual fee agreement (Honorarvereinbarung), under which the amount of compensation may be different from that provided by law.

The Federal Law on Promoting Electronic Document Flow with the Courts also provides for the gradual introduction of electronic document flow between all judicial authorities, including the bar. To accomplish this task, all federal procedural laws were amended, and software products were developed and implemented for the exchange of messages and documents between courts and administrative agencies, notaries, attorneys, and tax advisors. Each German lawyer has a personal professional electronic mailbox (besondere elektronische Anwaltspostfach - beA), which he or she uses in his or her daily work. Thanks to the encrypted identification system, only lawyers who are listed in the federal register have access to e-justice. Starting January 1, 2022, electronic document management will be mandatory for courts and the bar.

Self-government

Since 2015, the Ukrainian National Bar Association has been cooperating with the Federal Bar Association of Germany, in particular, on the issue of admission of Ukrainian lawyers to the regional chambers of lawyers in Germany.

The Federal Chamber of Advocates of Germany consists of 27 regional chambers of advocates and the Chamber of Advocates at the Federal Court. Chambers of Advocates (Rechtsanwaltskammern - RAKn) in Germany are the basis of the bar self-government. Every lawyer in Germany is a member of the bar association of the state in which he or she is registered. The work of the bar associations is focused on advising and supporting their members, as well as on the professional supervision of licensed lawyers. The tasks of the chambers include, in particular, the following:

• admit advocates to practice law and, if necessary, revoke their admission;
• advise and instruct advocates on their professional duties;
• upon request, act as a mediator in disputes between advocates or between advocates and clients;
• to control the performance of professional duties of the advocate and to impose sanctions for violations;
• to submit to its members at the Chamber's meetings an annual report on its activities and reports on the management of its property;
• prepare reports requested by the State Judicial Administration, a court or an administrative body of the state.

The list of chambers of lawyers, their postal and e-mail addresses can be found on the website of the Federal Chamber of Lawyers of Germany.

Foreign lawyers

Lawyers from member states of the World Trade Organization, which are listed by the Federal Ministry of Justice, may apply for a permit to practice law in Germany in the field of law of their country of origin as well as international law (§ 206 of the Federal Lawyer Act). As Ukraine is one of such states, Ukrainian lawyers can apply for the above-mentioned permit to the Bar Association of the state in which they reside.

Pursuant to § 206 BRAO, representatives of foreign professions listed in the statute under paragraph (2) may practice law in the Federal Republic of Germany if they:

1) have the right, in accordance with the legislation of their state, to practice law in their state, and

2) have been admitted to the Chamber of Advocates responsible for the land where the advocate is registered on the basis of the submitted application.

The permit to practice law extends to the branches of law of the state of origin and international law for lawyers from Ukraine.

§ 207 of the BRAO establishes the procedure for admission to the practice of law and professional status; the processes of revocation and cancellation of the certificate. In particular, it is stated that the application for admission to the Bar (Article 206(1)(2)) must be accompanied by a certificate of membership in the profession issued by the competent authority in the country of origin. The certificate is submitted to the Rechtsanwaltskammer annually. For Ukrainian attorneys, the equivalent of such a certificate is an extract from the Unified State Register of Advocates translated into German. If an advocate loses the status of an advocate in Ukraine or fails to submit an extract, his or her right to practice law in Germany may be revoked. The same article establishes the obligation to take out professional liability insurance. It is also stated that a registered foreign attorney must use his or her professional title in accordance with the legislation of the state of origin. When using his or her professional title, he or she must indicate the country of origin in German. A foreign advocate also has the right to use the designation «Member of the Chamber of Advocates... (Berlin)» in his/her professional activities.

In other words, a Ukrainian lawyer admitted to practice law in Germany has no right to write anywhere that he is a «Rechtsanwalt» («lawyer» in German). He is obliged to use only the title «Advokat aus der Ukraine» or «member of the Berlin Bar Association» (for example, Mitglied der Rechtanwaltskammer Berlin).

The main duties of lawyers are set out in Section 43a of the BRAO. These include: preventing conflicts of interest, maintaining the attorney-client privilege, continuous professional development, etc.

It is mandatory to consult with a tax advisor or at least the tax office on the taxation of the practice of law in Germany.

The procedure for filling out an application for admission to the Chamber

Now let's take an example of an application for admission to the Berlin Bar Association. It is important to note that the application forms and requirements may differ depending on the Chamber of Lawyers. To obtain accurate and relevant data, it is imperative that you contact the Bar Association of the German state where you are registered and have obtained a residence permit with a work permit.

The application for admission to the Berlin Bar Association is made in accordance with §§ 206, 207 of the German Federal Bar Regulations. The application must be submitted in writing to the Berlin Bar Association, Littenstr. 9, 10179 Berlin.

Documents in a language other than German must be accompanied by a translation into German. It is better to check the requirements for translation certification at the Bar Association.

The application must be accompanied by:

a) a completed and signed form (blank) with personal information and a photo;

b) a completed and signed questionnaire;

c) a certificate from the competent authority of the country of origin on membership in the profession of attorney-at-law in accordance with the Regulation on the application of professional titles referred to in § 206 of the Federal German Bar Regulations (extract from the ERAU);

d) birth certificate; in case of change of surname, additional documentary evidence of the surname (marriage certificate);

e) proof of academic degree, if any;

f) residence permit;

g) a work permit;

h) proof of professional liability insurance pursuant to § 51 of the German Federal Bar Regulations or a document of temporary insurance. The insurance must be taken out with an insurance company authorized to conduct business in Germany;

i) a certificate of no criminal record from the country of origin;

j) proof of payment of the fee. A fee of EUR 235 is charged for admission to the Berlin Bar Association. The fee is paid upon submission of the application to the bar association. The fee is transferred to the account of the relevant Chamber of Advocates.

The Bar Association then makes a decision on the application. The decision will be issued in writing to the applicant. Admission to the bar association can take place only if the applicant has proof of professional liability insurance or if a temporary proof of insurance is provided. The admission to the Bar shall take effect from the moment of receipt (delivery) of the decision on admission.

The annual contribution of an advocate to ensure the implementation of the bar self-government in Berlin is 335 euros and must be paid by April 1 each year. Each regional bar association has its own amount.

More detailed information can be found on the website of the Berlin Bar Association in the section «Vacancies of Berlin lawyers for asylum seekers from Ukraine».

The issuance of a lawyer's certificate costs 20 euros and can take up to 6 weeks. Along with the application for the lawyer's license, a 5×4 cm photo must be submitted to the Chamber of Advocates.

Once admitted, an attorney is obliged to establish and maintain a law firm in the district of the chamber of which he or she is a member. However, a separate room in your apartment is sufficient if the office can be contacted by phone, fax or e-mail.

Personal professional e-mail account (beA)

As part of the bar admission process, you have the opportunity to apply for a beA card to access your personal professional email account (§ 31a of the German Federal Bar Regulations).

Every lawyer admitted to practice law in Germany must have a beA for secure electronic communication between lawyers and other government agencies.

The holder of the beA is obliged to maintain the technical means necessary for its use and to take into account the sending and receiving of messages via the beA. Therefore, it is the duty of each advocate to regularly check the e-mail box for messages.

You must set up and activate the mailbox in your web browser so that you can receive messages in the advocate's e-mail box. To do this, please follow these steps:

• submit an application for a beA card for lawyers to the Federal Notary Chamber and order card readers;
• download and install the beA Client-Security program;
• complete the initial registration.

To order, you need a unique identification number (personal application number or SAFE ID). SAFE ID is a unique combination of numbers and letters that is issued only once and is assigned to you personally. It cannot be changed and represents only the identity of a particular attorney stored in the beA system.

You can find your SAFE ID in the German official register of lawyers yourself. To do this, you need to go to the registry's website, enter your first and last name. Then you can find your SAFE ID in the personal information section at the bottom.

The process of obtaining a card and a card reader is quite lengthy. It is also worth noting the prices for setting up an attorney's e-mail account:

• card - EUR 29.90 (must be renewed every two years);
• software - EUR 4.90 (to be updated annually);
• card reader - EUR 74.90 or EUR 134.90 (optional).

More information about beA is also available on the website of the German Federal Chamber of Lawyers.

Professional liability insurance

Erroneous advice, improperly prepared opinions and insufficient legal information - everyone who wants to work as a lawyer in Germany is legally obliged to have professional liability insurance in accordance with §51 of the German Federal Bar Regulations.

In particular, it covers financial losses that quickly arise in this profession. After all, even the most experienced lawyer can make mistakes. Professional liability insurance covers the costs for you so that you can focus on your work and be financially protected.

In Germany, lawyer's professional liability insurance is part of a well-established mechanism for sharing the risks associated with professional errors between the lawyer, the insurance company and the client. Without an insurance contract that is concluded with a specific lawyer, and not with the law firm in which the person may work, it is impossible to become a member of the German Bar.

The minimum amount of insurance coverage for possible damage is 250 thousand euros per insured event. The insurer's payments in all cases of damage that occurred within one year may be limited to four times the minimum sum insured. Given the high level of formalism of the German judicial system, even a minor professional error by an attorney may result in the recovery of significant amounts from the attorney. According to the statistics of German insurers, clients do not forgive attorneys for about 20% of their mistakes and turn to insurance companies for compensation.

In Germany, there are many insurance companies with which you can conclude a professional liability insurance contract. One of them is HDI. Here, insurance will cost a lawyer about 134 euros per year. To find an insurance company that suits you, you can Google «Berufshaftpflichtversicherung Rechtsanwalt».

As part of the procedure for admission to the practice of law, it is common practice to submit a preliminary confirmation of insurance coverage from a professional liability insurer together with other necessary documents for admission to the practice of law. The final confirmation of insurance is issued after obtaining a license to practice law.

Opportunities for promoting services

How can a Ukrainian lawyer who has completed the entire procedure for admission to the profession in Germany find clients in Germany to provide them with services in Ukrainian and international law? Among other things, we can advise you to use websites that operate in Germany to help clients find lawyers. When a person needs services in a specific area of law or on issues related to, for example, Ukraine, he or she can go to such a website, enter a request, and be provided with information about lawyers who can provide advice on a specific issue.

Such services are provided, for example, by Anwalt.de, Anwaltssuche.de and Anwalt-Suchservice.de. On these sites, lawyers can also publish articles and various tips, analyzes of legal provisions, etc.