In what ways is the legal services business in Germany different from that in Russia?

Source of the publication – ezh-YURIST, No. 47, 2013.

Erika Kindsvater, Advocate of the Law Firm "YUST"

The main difference between the markets of legal services in Germany and in Russia is who may render legal services. In Germany, only advocates have the right to act as court attorneys. Meanwhile, a party to a small civil dispute may refuse the advocate’s support, but if the value of the claim exceeds 5000 euros or if the case is considered by a cassation court, the parties must be represented by advocates. The law fixes the minimum price of such services (it depends on the value of the claim) and the advocate’s obligation to improve the qualification. If, for example, the specialist advocate fails to present any proof of having taken the yearly training in his specialization area, the chamber of advocates takes away his specialist title.

In Russia, any person with a power of attorney from the client may be the court representative in a civil case. This means that if a company director is charged with partial non-payment of salaries for over three months, he is not able to protect his interests in criminal proceedings without an advocate. And if he as a shareholder wishes to contest a transaction made by the joint-stock company and check the compliance with the decision-taking conditions, or if he as a member of the Board faces a lawsuit concerning the recovery of large damages incurred by the company, in these cases anyone, who knows how to use a directory program, may assist the director. The complexity and civil (arbitration) proceedings and the need for a professional approach are often underestimated. And the fact that any citizen may do the advocate’s work undermines the trust in advocates.

As concerns the obligatory participation of the advocate in trial, the Constitutional Court of Germany studied the matter of compliance of the provision with the Constitutional Law of the Federal Republic of Germany and concluded: such provision does not violate the guaranteed right to freedom of actions. Freedom of actions (which includes the freedom of choice of the attorney) is guaranteed within the constitutional order and may be limited for the sake of the public benefit, and the contested norm serves not only the defense of the client but also the public interest in “honest” justice. Meanwhile those citizens, who cannot afford the advocate’s services, have the possibility to receive financial support to compensate the trial costs. Thus, nobody is forced to refuse to file necessary claims, and therefore the right to court defense is not limited.