The Legal Regulation of Extrajudicial Legal Services
In the early twentieth century, a large number of organisations for extrajudicial legal aid provided workers, less well-off people, and socially disadvantaged people with legal advice and, if necessary, out-of-court settlements free of charge.
Their legal advice covered not only the legal fields of social insurance and labour law, but also civil law in general, including family law, which related to the daily life of clients. Such activity gives rise to questions about the relationship between public legal advice organisations and practising lawyers, as well as how extrajudicial legal aid was regulated at the time.Until 1935, the regulation of legal advice was governed by the Business Act (Gewerbeordnung), as amended in 1883, as were swimming schools, dance schools, second-hand dealers, brokers for real estate or marriage, and so on.[439] Pursuant to Article 35, Paragraphs 1 and 3, a business operation would be banned if a business operator of extrajudicial legal services was unreliable. Thus, regulation was essentially ex-post facto. Moreover, oversight belonged not to the judicial authority, but to the authority of business affairs. This provision and the Business Act itself represented the embodiment of freedom of business and an ideology of economic liberalism.[440]
Legal services by practising lawyers were not within the act’s purview. Furthermore, this provision only regulated commercial legal advice. The entities that provided extrajudicial legal aid were not covered by this rule, because they did not offer legal advice as a business, nor did they charge any fees. There were no further regulations for them. Under this legislation and the idea of economic liberalism, the movement for legal advice and information developed freely and widely.
Article 35 primarily covered those people who offered extrajudicial legal services as a business without a legal education and qualifications— “legal consultants” or “corner advocates.”[441] Such corner advocates mainly drafted legal documents, but they also offered representation in civil procedures at the Local Courts, where representation by practising lawyers was not compulsory.[442] Workers and people from the lower classes tended to consult with them.
But, because of their lack of legal education and skills, this situation was generally considered to be harmful and problem- atic.[443] Practising lawyers regarded legal consultants as incompetent competitors and requested the government to prohibit their activities.[444] However, because of the principle of freedom of business, these requests went unheeded until the National Socialist era.[445]Attitudes of Practising Lawyers Regarding Extrajudicial Legal Aid and the Beginning of Professionalisation
In contrast, practising lawyers saw the activities of the organisations for legal advice and information as a public good, or at least they tolerated them, as the two were seldom in competition. Furthermore, practising lawyers had little interest in legal advice for workers and the socially disadvantaged. Nevertheless, lawyers made some efforts to organise their participation in legal advice for the poor. For example, the topic was discussed at the German lawyers’ conference (Anwaltstag) in 1909.[446] However, these efforts did not lead practising lawyers to take on more voluntary work.[447]
Some reasons for the reticence of practising lawyers included that their main field of activity involved lawsuits. They also traditionally provided legal assistance to the poor in court (Armenrecht) and already felt burdened by it.[448] Further, they had little interest in the new legal areas of workers’ insurance and labour law, and they were also excluded from the labour-related courts—Gewerbegericht and Kaufmannsgericht—by law. Practising lawyers also did not consider the growing working class as lucrative clients. Both the absolute number of practising lawyers and the number of lawyers per inhabitant were still low, even if they were constantly increasing. In 1889, there were only 5097 lawyers, which translates to 9193 inhabitants per practising lawyer. By 1913, the number of lawyers increased to 12,297.
However, the number of inhabitants per lawyer was still 5280.[449] Practising lawyers could still be satisfied with their traditional clientele. During the Wilhelmine Period, the active fields of practising lawyers and those of the groups providing extrajudicial legal aid still did not essentially overlap. However, this situation changed dramatically in the Weimar Republic.In the Weimar Republic, the number of lawyers increased further, to 19,208 in 1933, when the number of inhabitants per lawyer was estimated to be 3438. Lawyers began complaining of “overcrowding.” At the same time, the economic situation of practising lawyers had dramatically worsened, especially because of the Great Depression in 1929. One lawyer in the Weimar Republic described the situation of practising lawyers at the end of the 1920s: “The divisor is too large, the dividendus too small.”[450]
Given increased competition, practising lawyers sought to cultivate and enlarge their fields of activity, especially extrajudicial legal services. They also sought the prohibition of legal consultants in order to create a monopoly over legal services. They used the following three strategies: obtaining clients from a wide range of the population, including the working class; expanding their field of activity into extrajudicial legal services; and enlarging their active legal practices, for example, into traffic accidents, labour law, social insurance, and security. Already in the Wilhelmine period, the legal advice centres of charitable organisations and municipalities were broadening their legal areas from social insurance and labour law to civil law in general. They did not limit their clients strictly to “the poor”—rather they helped a wider range of the population with their legal problems. In the late 1920s and early 1930s, the activities of the municipal or charitable legal advice centres and those of practising lawyers were increasingly overlapping with each other.
The relationship between them must have been strained at this time.Yet, things developed differently, and these two groups did not actually become competitors. After World War I, a few large-scale Centres for Legal Advice and Information, operated by private charitable organisations such as the People’s Home in Hamburg and Social Museum in Frankfurt am Main, were adopted by the city administration.[451] Because of the Great Depression, the civil cases for smaller claims, in which workers and economically disadvantaged people were mostly involved, increased radically. Many of them could have been resolved or prevented by means of extrajudicial legal services. Here, mass demand for extrajudicial legal aid arose anew. On the other hand, the economic crisis caused by the Great Depression made it financially difficult for municipalities to maintain their legal advice offices. The charitable and municipal legal advice centres could not deal with the mass demand for extrajudicial legal aid anymore. Under these circumstances, the Non-profit and Impartial Legal Advice Federation requested that practising lawyers participate in providing such services.[452] Practising lawyers were also aware of this mass demand and saw it as a potential field of activity for them. In 1932, an agreement for the collective participation of lawyers in extrajudicial legal aid was reached through the regional bar associations (Anwaltsvereine)[453] The profession- alisation of extrajudicial legal aid and the monopolisation of extrajudicial legal service markets began under these circumstances, shortly before the National Socialist era.
In the National Socialist era, organisations providing extrajudicial legal aid were completely eliminated, practising lawyers realised a quasimonopoly of the extrajudicial legal service market, and the professionalisa- tion of extrajudicial legal aid was accomplished, all at the same time.[454] These changes, especially the practising lawyers’ quasi-monopoly of the extrajudicial legal service market, greatly influenced the legal advice market and extrajudicial legal aid in the Federal Republic of Germany. At the same time, the aim of extrajudicial legal aid changed from helping the working class and the economically and socially disadvantaged to helping the poor.