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German Advocates: A Highly Regulated Profession

ERHARD BLANKENBURG AND ULRIKE SCHULTZ

WHY THE CONCEPT OF A "LEGAL PROFESSION" IS MISLEADING IN THE GERMAN CONTEXT

THE ROLE OF ADVOCACY IN THE GERMAN LEGAL PROFESSION

If Germans talk about the "legal profession," they think first not about practicing lawyers but rather about all those who have passed two state examinations to become "full-fledged jurists" (Volljuristen ). These are then qualified to become a judge, a public prosecutor, a civil servant, a company employee, or an advocate. Mobility between these careers is low. Legal education (which consists of university studies followed by an apprenticeship) is oriented not to the practice of law by Anwälte, or advocates who represent parties, but rather to the role of the judge who is above the parties. Fewer than half of those with law degrees actually practice as advocates. During the two-year apprenticeship before the second of two state examinations (which are written by boards at the Ministries of Justice of the sixteen Länder, or states), future lawyers spend just four months in an advocate's office.^[1]

For two centuries, judges and civil servants have dominated the legal profession numerically, and advocates have been the minority. Their share has increased recently as higher education, and particularly legal education, have expanded. This disproportionate increase may reflect the limited number of salaried jobs more than a growing demand for legal services. In any case, the supply of new graduates has compelled advocates to try to create new markets. It also has led to relaxation of statutory fee schedules and restrictions on advertising and specialization; in order to increase cooperation with competitors, such as estate agents, advocates may have to relinquish their monopoly over legal advice.

Such a market perspective might surprise readers familiar with the literature on the German legal profession, which traditionally has concentrated on the roles of judges and civil servants and their orientation toward authority rather than on advocacy. That emphasis on law as government regulation rather than the assertion of individual rights accurately reflects the subordinate position of advocates within the occupational structure of the legal profession. The role of jurists in the ideology and institutions of the German state is shaped by statutory regulation of legal education and the legal profession. Contemporary changes may cause convergence with the more adversarial cultures of common law countries, a prospect that must be seen in the context of European integration and a general convergence of Western cultures.

THE HISTORICAL WEAKNESS OF ADVOCACY WITHIN THE LEGAL PROFESSION

Traditionally, legal training in Germany was education for the judiciary and civil service. Lawyers were expected to serve "the state" rather than represent citizens. The training of lawyers was strictly regulated by government, admission to the profession required passage of two state examinations, and careers open to jurists were regulated by admission quotas. The influx of law graduates could be adjusted to the perceived needs of the judiciary and civil service. In 1839, for instance, the Prussian Minister of Justice Mühler published the following warning:

According to our survey of the yearly influx of graduates from the first and second state examinations there are only very distant prospects for anyone as-piling to join the judiciary and to find admission therein; parents and foster parents of such young men can only be advised to deter them from studying law, unless they show extraordinary qualifications and are able to provide themselves with the necessary means of subsistence for at least ten years.^[2]

The 4,300 positions in the Prussian civil service at that time included both advocates and procurators (a distinction analogous to barrister/solicitor and later eliminated). (Advocacy became private practice only in 1879.) Three-fourths of law graduates who entered the civil service became judges, and only one-fourth became advocates (Weissler, 1905: 236-300).

There is ample historical evidence of the sovereign's deep distrust toward advocates. The Prussian King Friedrich Wilhelm I, enthroned in 1713, personally determined the number of lawyers admitted as advocates and prescribed the clothes they wore. The title of his 1739 edict vividly expressed his disdain for lawyers:

Edict that those advocates, procurators, and draftsmen [Konzipienten] who dare make people rebellious by having soldiers hand over to His Royal Majesty petitions on the most negligible matters or any other documents on justice, such as those asking for pardon, shall be hanged with a dog hanged at their side, granting neither mercy nor pardon.^[3]

In 1713 the courts to which lawyers sought admission as advocates imposed examination requirements in order to reduce incompetence and malpractice and to control the number of entrants. In 1780 a Prussian Royal Order actually abolished the profession of advocate, prohibiting representation in court and replacing advocates with civil servants (Assistenzräte ), who were charged with assisting the parties while helping the judges investigate the facts. Former advocates were allowed to work as Commissioners of Justice (Justizkomissare ), offering advice and representation in noncontentious legal matters such as land registration, probate, guardianship, bankruptcy, drafting contracts, and notarial work.

This attempt to eliminate advocacy was bound to fail. Pressure from jurists restored advocates to judicial proceedings in 1783. The Corpus Juris Fridericianum (1793) permitted Commissioners of Justice to combine advocacy and notarial functions. The local courts, however, still exercised strict control over admissions because lawyers remained civil servants appointed by the state, even though private clients paid their fees.

After 1871, when unification of the Reich demanded uniform regulation, there were attempts to establish a true "free advocacy" with unrestricted admission and rights to practice, separation from notaries, and the elimination of apprenticeship.^[4] These reforms were only partly successful. In 1877 the "Statute on the Constitution of the Judiciary" (Gerichts-verfassungsgesetz ) made the judiciary autonomous, although it continued to regulate university education and apprenticeship, thereby strictly controlling access to the legal profession. In 1879 the Statute on Advocacy removed numerical limits, granting admission to the bar to all who had passed both state examinations. Continued ministerial supervision over the uniform legal education, together with the two state examinations, still prevented advocates from gaining control over entry to the profession under the Kaiserreich.

Soon after the 1879 deregulation of entry, complaints were made about oversupply. These peaked at the beginning of this century in numerous articles about the alleged "misery" of advocates. State examinations, however, remained a powerful means of restricting access. Just as the Prussian Ministry of Justice had responded to complaints about "a threatening supply of lawyers" in the 1840s and in 1858 by persuading examination boards to make examinations more difficult, encouraging students to drop out, and discouraging some from entering, so the Reich Ministry of Justice did the same thing in the 1910s (Kolbeck, 1978: 41, 55).

The reasons for fluctuations in the number of law graduates in the nineteenth century resemble those operating today. A prosperous economy, which allowed more to attend university, caused increases in the number of law students in the 1820s, 1840s, and 1860s. Quotas for entry to the civil service and judiciary compelled law graduates to resort to other careers during economic contractions, although advocacy clearly remained a second choice for many.

THE RECENT GROWTH OF ADVOCACY

Advocates have been multiplying faster than civil service lawyers and judges since the turn of the century. Between 1960 and 1994 the number of advocates increased almost fourfold, from 18,347 to 70,438. The advocates' journal Anwaltsblatt commented: "No profession shows a comparable development. The figures have never been more alarming" (1984/5: 254; see also 1985/5: 249). Yet competing professions exhibited even more rapid growth. During the 1980s the number of advocates increased 56 percent while that of approved business consultants grew 58 percent and tax accountants 78 percent.

The growth of the legal profession, especially advocates, has been more closely related to political changes than has the growth of other professions. Because legal education staffs the civil service, all legal occupations have been highly vulnerable to changes in political power. Throughout the Kaiserreich advocates had to fight for emancipation within the legal profession. Since the bar never gained control over entry, its membership remained a function of access to law schools and to the other legal occupations within the judiciary and the government. The distinction between practicing advocates and salaried lawyers in business remains nebulous.

Table 1 shows the trend toward long-term growth in the number of advocates in Germany once we discount political upheavals. Until the turn of the century, newcomers clearly were discouraged from becoming advocates rather than joining the civil service and judiciary. Examination standards were used to keep the expansion of the legal profession below the population increases resulting from natural growth and territorial occupation. In light of nineteenth-century industrialization and expansion of trade (even though Germany was a late bloomer), these limitations led to uncontrolled growth in the number of scriveners, law clerks, and unregistered paralegals (Gneist, 1867). Overcontrol of entry into advocacy thus led to a black market of unlicensed practitioners, who worked both clandestinely and as employees of and in the name of the few registered advocates. At the same time, the Prussian Minister of Justice was able to

employ law graduates for years without pay by holding out the hope that they would gain entry into advocacy. This practice was unique among German states and sharply criticized in Parliament; nevertheless, it shows the extent to which the public administration controlled the careers of lawyers (Gneist, 1867; Kolbeck, 1978: 69ff.).^[5]

Since the deregulation of entry to advocacy in 1879, the number of registered advocates has risen steadily (if we exclude the Nazi regime, with its suppression of free advocacy, and the German Democratic Republic [GDR], with the lower lawyer densities characteristic of socialist countries). The Weimar Republic saw further deregulation of entry and a consequent rise in the number of advocates; from its inception in 1933, however, the Third Reich expelled from advocacy political opponents, the few women who had been admitted, and Jews. Official statistics record 4,394 Jewish advocates in 1933, 2,550 in 1935, and none in 1938. Nazi ideology also stressed the advocate's duty to "guard the law" (Rechtswahrer ) rather than to represent and defend the interests of clients. Conflicts were regarded as detrimental to the "welfare of the whole nation," and the purpose of advocacy was to persuade the parties to accept the wider interests of the state. In 1935 the "Act Against Misuse of Legal Advice" restricted admission as an advocate to "elements who are loyal to the State." The expulsion of Jews was one element of a general suppression of liberalism, which advocates increasingly had been championing during the Weimar Republic (Reifner, 1984). When the post-war Federal Republic of Germany (FRG) sought to re-create democratic political and adversarial legal institutions, it also reinstated advocates in public life. Together with the expansion of educational opportunities and the job market, this stimulated the number of advocates to grow 18 percent from 1955 to 1964 and then 36 percent, 75 percent, and 50 percent in each succeeding decade.

Advocates in the GDR were so severely restricted that they numbered only 600 in a country with 16.7 million inhabitants when the regime collapsed in 1989. During the brief year before unification in 1990 about 1,400 additional lawyers applied for registration: 300 from West Germany, and the rest from the East German judiciary, civil service, universities, or state industries (including a substantial number who had no future in the public sector because they had worked for or collaborated with the security police [Stasi]). After unification the number of advocates in the former East German states (including East Berlin) tripled, to about 5,500 in 1994. Most of the increase came from the former West Germany, since East German law students had to begin learning West German law, which was adopted at unification. West German law firms, which had been restricted to a single office, were allowed to open branch offices to fill the gap in legal services (Kirschner and Lienau, 1994).

PUSH AND PULL FACTORS

Educational production rather than demand for legal services stimulated the growth of German advocates. The number of entering law students increased from about 10,000 between 1973 and 1979 to 14,718 in 1981 and 16,000 in 1990. Following unification it reached 22,000 in 1992 (in the former West) and will continue to increase as law faculties are opened in the former East. A third of these entrants are expected to qualify after eight to ten years of university study and apprenticeship. Given a drop-out rate of about 65 percent, some 6,400 jurists now pass their second qualifying examination annually. In the 1960s and early 1970s 30 to 35 percent of newly qualified jurists obtained employment in the civil service, but this proportion fell to 10 percent in the 1980s and rose again only after unification (Bundestagsdrucksache 9/1939: 4). The creation of a new judiciary and civil service in the former East opened many new positions for those qualified in the former West, but these vacancies will soon be filled. Openings created by the predicted wave of retirements at the end of the century will most likely be offset by the tendency toward privatization resulting from Europeanization and deregulation, which may eliminate many civil service positions. In the 1980s lawyers' associations discouraged young people from studying law by warning of a "flood of lawyers." But the fear that recent entrants would not find enough clients and consequently become a "lawyer proletariat" remains unsubstantiated, although most do start as solo practitioners or partners in small firms they form themselves (Hommerich, 1988).

The influx into all professions has resulted from the general educational expansion of the 1960s, which always outran the job market in the expectation that rapid economic growth would continue indefinitely. In 1960 only 6 percent of the relevant age cohort passed the Abitur, qualifying them to enter the university. By 1982 this proportion had grown to 25 percent in the former Western states. Former East Germans were quickly approaching this proportion, although they started at a low level. By 1992 the nationwide proportion had reached 35 percent.

Disciplines with high per capita educational costs (such as medicine, science, and engineering) responded by restricting student numbers. Law faculties, with their low per capita educational costs, initially did not follow suit. Some still have not established quotas, and the new faculties in the former East continue to expand the number of places. Consequently, many denied admission to study their preferred subject enter law faculties; law is the second or third choice of at least 18 percent of all law students, almost half of whom preferred medicine, dentistry, or pharmacy (Heldrich and Schmidtchen, 1982: 15-16; Portele and Schütte, 1983: 98 ff.). The proportion of secondary school graduates with

university qualifications entering law faculties has remained fairly stable during the last twenty years: about 5 percent of men and 6 percent of women.

As jobs for jurists in the civil service and judiciary were limited by the fiscal crises of the 1980s, jurists were forced into advocacy—the only lawyer job without entry limitations.^[6] Because professional organizations could not control supply they sought to expand the scope of legal services by relaxing restrictive practices and enlarging the traditional clientele of advocates. But German advocates still defend their monopoly over legal advice and representation at the risk of remaining restricted to a small market. This may reflect their historical experience that government regulates advocates if they do not define their profession very narrowly. The constitutional court and competition from non-German lawyers, however, is forcing advocates to reconsider this defensive strategy and is transforming the composition of the profession (Winters, 1990).

THE JOBS OF GERMAN LAWYERS

Becoming a lawyer in Germany still means choosing a salaried career as often as it means practicing as an advocate: about half of all jurists enter salaried positions in government, the judiciary, or business. Judges and civil servants are seldom recruited from the bar; they have their own lifelong career paths.

A professional qualification, thus, is the gateway to many different occupations; it requires a university education plus in-practice training in judicial and governmental institutions. This "uniform legal education," controlled by examination boards of the state Ministries of Justice, is a heritage of the time when legal education was predominantly the recruitment reservoir for higher positions in government administration. The state examinations still serve to channel aspirants for legal and managerial careers. Because the choice of career has to be made soon after the completion of legal education, we describe legal education before surveying the jobs that German lawyers do.

LEGAL EDUCATION

To become a German jurist, one first must enroll in a university law faculty. People often do so without clear motives: most of those who qualify enter university because of the status it confers. Law students are more uncertain than others about their careers (Heldrich and Schmidtchen, 1982:15 ff.; Portele and Schütte, 1983:98 ff.). Legal training traditionally

has been an all-purpose choice. In 1992 there were 22,000 beginning law students in former West Germany alone and another 3,000 at the new law faculties in former East Germany. German universities are tuition-free, and about one-third of all students receive grants to help finance their studies (Statistisches Bundesamt Wiesbaden [BAFÖG]). Even though scholarships were replaced by loans in the 1980s, university study remains an attractive low-cost option for all those passing their secondary-school examinations.

There is widespread dissatisfaction with the quality of university legal studies, however. Before 1993 they took an average of almost six years, although only three and a half years are required. New regulations allowing students to take and fail the first state examination without penalty have reduced this period to nearly five years. University teaching consists mostly of lectures and concentrates on imparting knowledge of legal codes and their application to hypothetical cases. Considerable pressure is exerted by rigid marking of tests and examinations. The drop-out rate is about 50 percent during university studies (and about 25 percent during apprenticeship).^[7] Final oral examinations have been described as a "conformity test" to see whether the candidate's thought processes fit the appropriate pattern of "perceiving, thinking, and judging" (Portele and Schütte, 1983: 32; Schütte, 1982). To prepare for these examinations, many students attend courses with a private tutor (Repetitor ). Tutors offer a systematic, limited program oriented toward the examination and concentrate on case-solving techniques. Two types of tutor can be distinguished: the "impresario" who runs a one-person business, and the large firms with employed tutors and branch offices in many university towns. Some tutors distribute course notes. About 70 percent of law students take these private courses (Heldrich and Schmidtchen, 1982: 91), and almost all use some of their publications. Two out of three law students in 1980 used those of the largest establishment (Alpmann at Münster). Now, however, another law factory has surpassed it, and the market is less concentrated. Even private tutors cannot guarantee good results; to be successful, students must construct their own curriculum, and many form private study groups.

Students restrict their reading to legal dogmatics, and traditional training omits even a basic exposure to philosophy, sociology, economics, or political science (Wassermann, 1969, 1983). Neither the universities nor the tutorial "crash courses" offer training in the skills needed by an advocate. Students do not receive rhetorical training, legal clinics, or training in administrative skills, and there is no moot court. In the late 1960s both the neglect of social science and the perceived need for some skills training led to demands for reform. In 1971 educational programs were established combining university courses and in-service training;^[8] in 1982

approximately 12 percent of all graduating lawyers had completed these programs. In 1985, however, all legal training returned to the earlier model despite its well-known deficiencies.

Professional in-service training requires two years and reinforces the judge-centered tendency of German legal education. The trainee has the status of a civil servant without tenure and receives a monthly allowance. Training consists of specified periods in a trial court, a public prosecutor's office, and a local government authority, and an obligatory four months with an advocate.^[9] In addition, the trainee has to attend classes conducted by judges in civil and administrative law, by public prosecutors in criminal law, and by civil servants in administrative law. This training emphasizes the technical skills needed in the judiciary: giving preparatory opinions and writing judgments. There is little training in advocacy, drafting, negotiation, or legal advice. This orientation to the demands of judicial office is underlined by the fact that the examination panel consists mainly of judges, public prosecutors, and civil servants,^[10] whose experience shapes the examination.^[11]

THE ALLOCATION OF GRADUATES TO LEGAL OCCUPATIONS

Those who pass both examinations may choose among the different legal occupations largely on the basis of their performance on the second state examination, supplemented by the evaluation of their training judges. Very good grades (a Prädikat, which is achieved by fewer than one-sixth of examinees) open the door to a career in the judiciary or civil service. Advertisements for legal jobs generally demand "a young jurist, possibly with professional experience and [two] Prädikat examinations." A Präidi-kat always was a prerequisite for employment in the judicial service and often was demanded in the civil service, except between 1965 and 1975 and in the former Eastern states after unification, when graduates were in short supply. Given the current oversupply of graduates and the contraction of all civil service labor markets, even a Präidikat may not continue to assure entry to the judiciary or civil service.

Work as an advocate has become an alternative.^[12] In the 1960s and 1970s it rarely was a deliberate choice, except for those who "inherited" contacts with practicing advocates through family or friends or made contacts as a trainee. Advocates traditionally were characterized by high self-recruitment and upper-middle-class backgrounds. In the 1980s, however, advocacy became the occupation for all jurists unable to find government or civil service jobs.

As we shall see, solo practice has been declining in recent decades, and young lawyers increasingly begin as law firm employees. With the

supply of graduates increasing, starting salaries are decreasing, and it takes longer to become a partner. Multilingualism and specialization in economics, tax law, labor law, or commercial law give the applicant an advantage. There is a reputational ranking among the thirty-two established law faculties, but the university attended has little influence on one's career. If anything, the state in which the examinations are passed is more relevant. Bremen, for instance, has the most thoroughly reformist model and is the scapegoat for some discrimination in other states.^[13]

JUDICIAL CAREERS

German legal culture is thoroughly judge centered. Among all developed formal legal systems, Germany traditionally has had the highest ratio of professional judges to population. This is due to a combination of high litigation rates, high appeal rates, and the inquisitorial system. Procedural law gives judges a dominant role: they control the proceedings, direct the inquiry, suggest settlements, pass judgment, and give detailed written reasons.

To be a judge is a lifelong career, starting immediately after the second qualifying examination (often as a public prosecutor, who is formally part of the judiciary). The status resembles that of a civil servant, and promotion to the higher courts is the usual expectation. Seniority strongly influences careers, although merit does determine the speed of advancement in the judicial hierarchy and is a prerequisite for achieving such senior positions as president or chairperson. Recruitment to all these posts is vertical; temporary exchanges between the judiciary and ministerial bureaucracies are the only observable types of lateral mobility (Lange and Luhmann, 1974).

LAWYERS IN THE CIVIL SERVICE

Most higher civil servants with any sort of administrative responsibility have been recruited from the pool of qualified lawyers. A "judicial qualification" opens the door to higher positions in the civil service and local government (Schmid and Treiber, 1975). Because of their employment status, civil servants cannot represent parties in most judicial proceedings.

Judicial qualification is particularly advantageous for public service careers. Jurists have a very strong position in both the executive and the ministerial bureaucracies. The judicial mode is deeply embedded in German administrative law: every public administrative decision is subject to judicial review on substantive as well as procedural grounds. Because public policy also relies heavily for its legitimation on a belief in legality,

jurists play a central role in preparing new legislation (Lange and Luh-mann, 1974). Since jurists with a rather homogeneous background dominate the civil service (Brinkmann et al., 1973), training in law has attained a central place in the idea of a "universal education" for public functions (Bleek, 1972).

In spite of uniform education, each legal occupation has its own career path, and mobility between occupations is difficult after a few years. The relatively high incomes produced by seniority and promotion practices in both the judiciary and public administration render transfer to private practice after the age of thirty-five a financial sacrifice. Civil servants and judges rarely leave to become advocates. Most mobility is a one-way movement of younger advocates into permanent civil service jobs. Having obtained the status of a permanent civil servant, most lawyers are reluctant to return to advocacy. In contrast to the average advocate, civil servants enjoy extraordinary security: life tenure, health insurance, generous pension schemes, and, after maternity leave, a guaranteed job and the possibility of part-time work. Many lawyers who have recently graduated have enrolled as advocates simply to wait for a job in the civil service.

UNIVERSITY TEACHERS

University teachers follow a separate career. Professors have to acquire a long series of academic qualifications, and many are actively involved in other legal functions. In 1994 there were 41 law faculties with 752 full professorships, 17 of which were held by women. Once they are recognized as authorities, professors exercise influence through their publications and their (often published) expert opinions on controversial questions in judicial proceedings. The only time most of them practice is during in-service training before the second qualifying examination.^[14] Since professors are civil servants they cannot perform all the roles of advocates. They may defend those accused of crimes and represent parties before the Federal Administrative Court and Federal High Court. Some also gain prestige by appearing before the Federal Constitutional Court or as experts before any of the High Courts, where they can participate on the "frontiers" of innovative jurisdiction.

LAWYERS IN PRIVATE EMPLOYMENT (SYNDICI)

Larger German companies tend to have their own in-house counsel. We estimate that between 30,000 and 40,000 lawyers currently are working in companies, industry associations, and similar organizations (for a much

lower estimate, see Hartmann, 1990). Some in-house lawyers are admitted as advocates. Official statistics estimate that 12 percent of all registered advocates are Syndici, but we believe the figure is more than twice as high. Statistics show that 30 percent of all registered advocates have no income from their practices. While a few are not practicing because of age or other reasons, the rest probably are employed. The dramatic increase in law graduates during the last two decades, however, has not increased the proportion employed in business. Employed lawyers may not represent their employer in court (Bundesrechtsanwaltsordnung [BRAO], art. 46). Many become advocates just to have the privilege of using the title; they see themselves as employees bound by contract to their employer rather than as independent lawyers in private practice. Most are found in the big city bars (A. Braun, 1987; Kolvenbach, 1979).

Large corporations have legal departments with fully qualified lawyers. Lawyers also work in personnel and administrative departments and exercise management functions. Professional associations, trade unions, and other organized interest groups employ lawyers as managers or legal advisers.

That so many lawyers work in salaried positions indicates a particular management style: rather than contracting with lawyers, consultants, or accountants for specific services, German businesses tend to incorporate these services within their permanent organizations. Company lawyers enter business firms at the beginning of their careers and tend to move up internal company ladders.

WHAT ADVOCATES DO

Advocates traditionally have been regarded as "part of the system of justice."^[15] They have a monopoly not only of representation in court but also of legal advice (Legal Advice Act [Rechtsberatungsgesetz ]). This "lawyer monopoly" has prevented any other type of adviser from penetrating the "legal market" and also has discouraged the development of any significant legal aid advocacy (Blankenburg, 1980; 1992). Because legal education is oriented toward the judicial service, young advocates see their role primarily as litigators. This consists mainly of preparing written statements; compared to common lawyers, civil lawyers play an insignificant role in collecting and presenting evidence (Kaplan et al., 1958; Merryman, 1968). Once an action has been filed, the inquiry is in the hands of the court, which directs the proceedings, decides what evidence to take, and hears the witnesses.

Even though several big law firms have been founded, those with more than ten partners still contain only 6 percent of registered advocates, and solo lawyers remain 50 percent of the bar. Even if we disregard

the approximately 30 percent of bar members Who do not practice, the number of solo practitioners has not decreased. Most attorneys, however, work in small partnerships. (In 1991, 80 percent of partnerships had fewer than four partners.) Because such lawyers are restricted to private clients with nonrepetitive needs, their income derives mostly from divorce cases. If they can routinize their litigation to increase volume, they may specialize in automobile accidents and traffic offenses, relying on continuing relations with legal expense insurance companies. Few advocates specialize in such administrative law matters as political asylum, admission to university, conscientious objection, and land development. Equally few manage to make a living doing social advocacy reimbursed by legal aid (Blankenburg, 1986). Only those who have acquired additional skills in commercial, tax, and company law and have built up a regular business clientele establish law firms that are larger, more prosperous, or both. Such specialists often are sought by companies for careers as in-house counsel or managers.

Legal advice outside litigation is not part of the lawyer's traditional image, but it is lucrative. Solo practitioners generally concentrate on litigation, but in larger law firms advice constitutes the bulk of legal work. Here, lawyers face vigorous competition from tax consultants and chartered accountants, who combine advice on business strategies, tax strategies, and management. Tax consultants increasingly form their own partnerships offering comprehensive business advice, including the drafting of contracts and wills. Advocates have lost much of the growing consultancy market by concentrating on the forensic areas in which they have a monopoly, and they are trying to regain it by joining interdisciplinary partnerships.

NOTARIES

Advocates are not the only lawyers in private practice—there also are notaries. In most of the former West German states, advocates can be admitted as notaries, a privilege dating back to a Prussian ordinance. In 1992 there were 8,657 advocates who could act as notaries.^[16] In the state of Württemberg and in parts of Baden, notaries are civil servants, although they may collect private fees. In most of the states not previously ruled by Prussia, statutes long have provided for a profession of notaries in private practice, with strict entry controls enforced by the state. In 1990 there were 1,382 notaries who were not advocates (nur-Notare ); three years later, the unified Germany contained 1,562.

German law permits notarial certification and attestation in a wide range of matters, but it is required only to validate some legal documents:

the purchase, sale, or mortgage of land; the decisions of company meetings; and the sale of shares in a private company. Other legal documents, such as a will (which is executed only if the testator wants to depart from the standard provisions of inheritance law), can be drafted by notaries.

Notaries hold public office and charge fees according to a fixed scale, but they are organized as an independent profession. They do their work under the supervision of their regional court of first instance, which controls admissions. Advocates who also wish to practice as notaries can only be admitted when it is determined that there is a need for their services and they can prove their personal competence (Wagner, 1993).

LEGAL ADVISERS WITHOUT UNIVERSITY LEGAL TRAINING

Paralegals are of little importance in contemporary Germany. The Legal Advice Act (Rechtsberatungsgesetz ) outlaws unauthorized legal practice and requires judicial permission before anyone not qualified as a jurist may practice as a legal adviser. A small group of paralegal advisers with a nonuniversity law qualification (Rechtsbeistände ) traditionally have enjoyed limited rights to give legal advice. In 1981, however, the Legal Advice Act (formerly the Act Against Misuse of Legal Advice) was amended to terminate the admission of new paralegal advisers. Now only specialist groups of nonlawyers (such as tax advisers) are admitted to practice under the Legal Advice Act.

Of much greater importance, however, are those legal advisers who, while not admitted to the bar, may give legal advice to a specific clientele on specific issues. Trade union secretaries can advise on social and labor law matters and may represent workers in labor courts; consumer organizations can advise and represent consumers; tenant or homeowner associations can advise their members about housing disputes; student advice bureaus can deal with student problems. Many of these organizations provide legal services by contracting with advocates for an annual retainer and are ideologically oriented toward representing collective interests as well as individual claims. Therefore, they are more capable than traditional advocates of changing the distribution of legal advantage by combining individual representation with the use of litigation and political lobbying (Blankenburg and Reifner, 1982).

UNIFORM EDUCATION AND DIVERSE OCCUPATIONS

As we have seen, all German jurists complete the same legal education; this professional uniformity is expressed by the concept of Einheitsjurist.

The coherence of the German "legal profession" is perceived as based on this common educational experience rather than a common occupational profile or membership in (predominantly occupational) associations, since subsequent career paths separate judges (including public prosecutors), practicing advocates and/or notaries, civil servants, and salaried company lawyers.

The distribution of jurists among these careers has undergone considerable change since the turn of the century. Until 1909 judges in the German Reich actually outnumbered advocates; the small number of civil servants and judges enjoyed the highest prestige, and other salaried lawyers were rare. Throughout the Weimar and Federal republics the proportions of judges decreased relative to advocates, civil servants, and especially salaried lawyers (while the entire profession grew). The number of jurists doubled between 1960 and the mid-1980s, but the growth rate was most rapid among advocates (see table 2).

In 1993 there were 67,562 registered advocates (25 to 30 percent of whom derived their incomes from sources other than private practice), 1,562 jurists working only as notaries, 18,913 judges, 4,920 state prosecutors, about 40,000 civil servants in federal, state, and local government, and about 40,000 who worked as business lawyers (12,000 of whom were registered as advocates).^[17]

REGULATION OF THE PRACTICE OF ADVOCATES

If legal education in Germany seems highly regulated, so is the practice of advocates.^[18] While admission as an advocate is a pure formality, the practice of advocates is strictly constrained. Until the early 1990s advocates were not allowed to combine with professionals offering other services, form law firms extending outside the district of the court to which they were admitted, advertise, or announce specializations. A 1987 decision of the Constitutional Court declared the Code of Ethics (Richtlinien zur Ausübung des Rechtsanwaltsberuf ) unconstitutional for lack of a sufficient statutory basis, forcing amendment of the Statute of Advocates.^[19] This led to a broad discussion of the rules and vigorous disputes between conservative and liberal advocates (the latter promoting the growing European and international legal market). The European Court and the German Constitutional Court and Federal Supreme Court decided several cases that permitted liberalization of several rules concerning the practice of advocates. A 1994 amendment to the Statute of Advocates^[20] allows advocates to combine with some professionals offering other services (such as patent agents and tax advisers),^[21] form national and international partnerships, inform potential clients about their services, and declare particular certified specializations.

Regulations not only affect the "product" advocates offer but also fix the "price" of their forensic representation. This was justified as necessary to prevent unfair competition and maintain a high standard of professionalism, but it also restrained innovations in legal services, which would have followed the more aggressive marketing strategies of lawyers who could work on contingent or hourly fees. (Advocates' fees are fixed by statute, BRAGO—Bundesrechtsanwaltsgebührenordnung, and were raised substantially in July 1994.)

ADMISSION

Application for admission is addressed to the court to which the advocate wants to be admitted and granted by the Court of Appeal of that jurisdiction. During the Cold War, the Federal Supreme Court (following the Supreme Court of the Weimar Republic) interpreted the Statute on Advocates (BRAO, art. 7) to allow the exclusion of members of the Communist Party. Even though the Federal Constitutional Court overruled this decision in 1983, a special "purge law" was passed in 1992 to allow exclusion for "unworthy conduct," especially collaboration with the GDR security police.^[22]

JURISDICTIONAL AND TERRITORIAL RESTRICTIONS

Practicing lawyers must be admitted to a civil court. In most states they can be admitted to both trial and appellate courts; in some, however, they can only be admitted to one or the other (a hotly contested restriction). In civil matters advocates may represent parties only in the courts to which they have been admitted, although they may appear and be heard in another court if the party also is represented by an advocate admitted to that court. This territorial restriction does not apply to the local courts that handle small claims and most criminal matters nor to courts of special jurisdiction. This rule, which was the backbone of German advocacy, is due to be abolished in the year 2000 in the former West German states and five years later in the former East Germany, after which it will apply only to appeal courts and the highest federal court.

RESTRICTION AND MONOPOLY OF LEGAL SERVICES

In all family courts, district courts (which handle more important civil matters), and appellate courts, parties must be represented by advocates. Advocates also enjoy a monopoly of representation before State Labor

Courts, the Federal Labor Court, and the Federal Administration Court (Civil Procedure Code, art. 78; Criminal Procedure Code, art. 140). In local courts and minor criminal proceedings, parties may appear unrepresented.

DISCIPLINE

Discipline is exercised by the councils of the Chambers of Advocates, which are "autonomous courts under the legal supervision of the state Ministries of Justice" (Statute on Advocates). Appeal lies to a joint court of judges and lawyers and then to the Federal Supreme Court (BGH), where judges constitute a majority. An advocate can be reprimanded by the council for minor offenses, but courts hear more serious charges. The disciplinary bodies have very low caseloads, which have remained constant even as the number of advocates has grown rapidly. In 1992 there were 465 trials (representing 0.7 percent of all advocates), most dealing with problems of admission, such as the candidate's desire to combine membership in the bar with work as a salaried employee.^[23] Once the advocate it admitted, any sanction is extremely rare, and disbarment is imposed only for serious misconduct, such as a criminal conviction (in 1969 drunk driving was viewed as insufficient) (Lehmann, 1984). The few decisions regarding professional misconduct have a good chance of being published; the journal of the Chamber of Advocates (BRAK—Mitteilungen ) carries a regular column on such cases. Local chambers prefer to use informal admonitions to express their dissatisfaction with breaches of professional rules, such as those relating to advertising and unfair competitive advantage. Client complaints about service are rare, and advocates' associations and chambers try to deal with them informally. The slight recent increase in formal disciplinary measures only reflects the growing numbers of advocates.

PROFESSIONAL ASSOCIATIONS

All lawyers practicing within the jurisdiction of each court of appeal must belong to its "Chamber of Advocates" (Anwaltskammer ) (BRAO, art. 60). In addition, there are a number of voluntary organizations. In 1990 about 36,000 advocates, or 60 percent of those registered, belonged to the Deutsche Anwaltsverein (DAV), which protects professional interests, gives practical assistance to its members, and organizes continuing education. It also publishes a journal (Anwaltsblatt ), holds a biannual meeting (Deutscher Anwaltstag ), maintains an institute advising lawyers about office equipment and managerial techniques, establishes committees and working groups on legislation and current problems, and promotes pro-

fessional interest through publicity and lobbying. It increasingly is involved in continuing education, although a number of private entrepreneurs also offer courses for specialists. That there are only a few special interest groups for advocates, such as the leftist "Republican Lawyers" and the "Criminal Defense Lawyers Association," attests to the low differentiation within the bar.

DIVISIONS AND STRATIFICATION WITHIN THE PROFESSION

Preoccupation with preventing competition among practicing lawyers and defending the monopoly of legal advice has discouraged German advocates from extending their services into innovative areas and exploring the possibility of cooperation with neighboring professions. At the same time, it also has avoided the sharp income differences and stratification that typify American lawyers.^[24] The social distance between solo practitioners (who still can make a decent living) and members of law firms (those with ten lawyers are still among the biggest), although considerable and growing, is far smaller in Germany than in the United States. There is not yet much "mega-lawyering" (Galanter, 1983) within the bar (but see Rogowski, 1994), nor are there "street-corner lawyers." German advocates still resemble a guild of craftsmen.

Differences in the size of practice and the clientele are evident, however. Senior practitioners in larger law firms prefer to serve companies and associations and rarely go to court, whereas juniors in law firms and solo practitioners tend to do more litigation for a clientele of individuals, relying on divorce cases for a larger proportion of their income. Stratification among advocates may increase if the influx of young lawyers continues. So far, the age, gender, and income distributions of German advocates have changed constantly but not rapidly.

SIZE OF PRACTICE

Advocacy traditionally has been the province of solo practitioners. Small partnerships of two to three advocates began to form in the 1960s. Although some have expanded, few contain more than ten lawyers (see table 3). The number of solo advocates is increasing absolutely and declining very slowly relative to the total number of advocates. According to our estimate, however, about a fourth are not practicing. The number of salaried lawyers employed by advocates (not included in official statistics) also has been increasing with the rapid expansion of the bar, which has motivated some young lawyers to accept long-term employment.

Because advocates employed in business have not been increasing as rapidly as private practitioners, the recent increase in admissions caused a (temporary) increase in the number of solo practitioners with no other source of income. If we exclude all advocates employed as Syndici, the practicing bar appears to be equally divided between solo practitioners and lawyers in law firms. Even with the recent increase in the number of partnerships, none is as large as those in the United States. In 1991 only 91 partnerships contained more than ten partners, although the largest had more than 100.

INCOME

When Rueschemeyer (1973) compared the income of practicing lawyers with that of other self-employed professionals for 1954, advocates ranked highest. Since then the incomes of dentists and medical practitioners have been growing faster than those of lawyers, even though the latter have kept pace with general economic growth. Table 4 shows that the average income of advocates now is considerably below that of physicians, dentists, and tax advisers-chartered accountants, and higher than that of engineers and architects. Notaries rank somewhat above advocates but below the medical professions.^[25]

Thus far only the relative income of lawyers has been decreasing. With the growing influx of young lawyers in the 1980s and 1990s it was feared that their absolute income also might decline. This was delayed through the opening of the new legal market in the former East German states, which has caused at least a temporary growth in demand. When the ratio of lawyers to population in the East reaches that in the West, stratification within the profession will intensify once more as growing numbers of lawyers earn less. This will be the long-term effect of what the profession sees as the failure to limit access to legal education or to the bar; from another perspective, of course, it can be seen as a success in keeping the profession open to newcomers.

FEES

A compulsory fee scale for advocates is contained in the federal "Statute on Lawyers' Fees" (BRAGO). This regularly is negotiated between the lawyers' association on one side and the Ministry of Justice and the Parliamentary Committee on Legal Affairs on the other. Since any changes require legislation, the lawyers' lobby in each party represented in the committee is very influential. Fees in civil cases vary with the value of

the object in dispute; there also are guidelines for fees for criminal defense. For consultation, advocates may charge a proportion of the fee for a litigated case, which varies with the kind of work involved. Until recently advocates charged on an hourly basis only in international matters. New legislation regulates fee contracts and hourly fees. Although these statutory fees do not vary in a linear manner with the monetary value of the case, the system still promotes very high fees in large cases, since these fees must compensate for the time spent on small claims, for which lawyers do not even recover expenses. Undercutting is forbidden and punished by the Chamber of Advocates. Contingent fees are not allowed, and legal expense insurance payments in litigated matters also must adhere to the fee scheme. Bargaining seems possible only in pretrial settlements, especially of traffic tickets.

The rigid fee system has a number of consequences:

1. A general litigation practitioner with a predominantly wage-earning clientele can barely make a living.

2. Legal aid income is insignificant except in divorce cases. Criminal defense advocates can do well since the inquisitorial system requires them to expend little effort in collecting evidence and their overhead is extremely low.

3. Some advocates specialize in routine matters, such as automobile and traffic offenses, and are paid by legal expense insurance; highly automated mass processing generates a good income.

4. Legal expense insurance is feasible because fees are predictable.

5. Law firms concentrating on business consultation not covered by the fee scheme earn high to very high incomes.

6. Notary-advocates, who often advise companies or land developers, earn the most.

7. The highest incomes are found in partnerships of four or more, characterized by internal specialization, consultation, a clientele composed almost entirely of businesses, and no debt collection (Oellers, 1982; A. Braun, 1986a).

LEGAL EXPENSE INSURANCE

The predictability of fees has allowed legal expense insurance to develop more extensively in Germany than in any other country. Because insurance companies may not give legal advice themselves but only reimburse the costs of legal advice and representation by advocates, this kind of insurance has become an important element in lawyer income.

Every other German household has a policy. As our own research has

shown conclusively, however, legal expense insurance has not increased the likelihood of litigation: About the same proportions of insured and uninsured clients are advised by their lawyers to settle out of court and avoid litigation.^[26]

SPECIALIZATION AND ADVERTISING

For decades there has been an official subject-matter specialization in tax law leading to a specialist title. Now public, labor, and social law specializations also are officially recognized and have to be certified by examination. Because the legal situation was very uncertain until the promulgation of new professional regulations in 1994, few advocates cared to qualify (see table 5). Some local advocates' associations informally generate "lists of specialists." They are of little value, however, since referral and advertising are prohibited. The revised Statute on Advocates allows lawyers to disseminate limited information about the scope of practice and specializations—legalizing what had already been occurring in recent years (BRAO §43b).

Most advocates, including those in smaller partnerships, remain generalists; large firms allow some specialization by individual partners but rarely portray the entire firm as specialized. The revised Statute on Advocates imposes a duty of further education without offering any specification.

THE VIRTUAL ABSENCE OF FREE LEGAL ADVICE

Compared to Anglo-American legal culture, there is remarkably little "social advocacy" in Germany. Few young left lawyers have taken the hard route of representing a poor clientele for little pay. Until 1981 the government did not subsidize legal advice outside court, which remained the province of pro bono programs organized by lawyer associations. Since 1981 there has been a very modest legal advice scheme (Beratungshilfe ). The revised Statute on Advocates imposes a duty to participate in these programs.

The need to equalize representation within court had been recognized by German civil procedure as early as 1879 by the Armenrecht, or "poor person's law." Criminal defendants also have had a statutory right to a duty solicitor^[27] since 1877, although only in the most serious cases. There is no legal aid for the large number of accused in the local criminal courts, nor is there any public defender service for those arrested by the police and detained by the courts. Most legal aid in civil matters (Pro-

zesskostenhilfe ) concerns divorce for low-income parties. In comparison to Britain and the Netherlands, per capita, civil legal aid is slightly higher in Germany, criminal legal aid is considerably lower, since the duty solicitor scheme is available only in serious cases, and expenditures for out-of-court advice are insignificant (Blankenburg, 1983, 1986). In both East and West Germany the defensive attitude of the bar successfully obstructed the expansion of legal aid beyond fee waivers in divorce proceedings, and it also prevented institutional innovations, such as political representation, neighborhood law centers, and university law clinics. The lawyers' lobby has sought to defend their monopoly over the traditional functions of advocacy rather than expand into new markets. Professions such as tax advisers and accountants, in which the government had never regulated education, entry, or conduct (but which also never enjoyed similar monopoly privileges and price regulation), managed to expand their markets in response to the influx of younger entrants. Advocacy, which is open to any qualified legal graduate, now faces an increasing number of young lawyers demanding a share of the highly regulated market for legal services. The defense of monopoly turns out to be a suitable strategy when supply is stable but an impediment when a growing profession must expand its market. Since continued adherence to that strategy is dysfunctional in terms of the collective economic interests of the legal profession, the explanation must be found in the traditional political functions of German jurists. The German legal profession may be on the verge of profound change because of the influx of law graduates (including women), who tend to come from less elite backgrounds.

CHANGING THE SOCIAL RECRUITMENT OF PRACTICING LAWYERS

Sociological studies of the recruitment patterns of German jurists generated much controversy in the 1960s. The relationship they revealed between the class background and the ideologies of the judicial elite could not be ignored. Sociologists who situated this relationship in the context of the antidemocratic elitism of German political culture aroused public anger. Ralf Dahrendorf, in particular, argued that "the lawyers of the monopoly" were one of the structural factors that explained the blind obedience to authority and avoidance of overt conflict characteristic of traditional German political institutions (Dahrendorf, 1965).

The weak position of advocacy within the German legal profession is an additional reason for relating the respect of German elites for "state and authority" to their antidemocratic sentiments throughout the history of the Reich, as well as to the special dilemmas of an obedient judiciary

and civil service during the Third Reich. In the Federal Republic, however, the continuities of German political culture coexisted with substantial changes, and this was true also within the legal profession. The role of German advocates now appears to be converging with that of lawyers in the less authoritarian cultures of the "Western victorious powers," which reshaped the Federal Republic after World War II. The schemes of planned ideological and institutional change advanced by "reeducation authors" such as Talcott Parsons (1954) have borne fruit. After the unification of 1990 they were replicated in the integration of former East German judges, prosecutors, and state company lawyers.

SOCIAL CLASS BACKGROUND

German jurists traditionally came from a rather homogeneous middle-class background in which there was a clear overrepresentation of parents in the civil service. Advocates deviate somewhat from this pattern, however, by being from more urban backgrounds, Protestant rather than Catholic, and the children of entrepreneurial rather than civil service parents (Kaupen, 1969).

In 1980, a third of younger advocates and judges (but only a fourth of law students) were children of civil servant fathers (although civil servants were only 11 percent of the labor force in that generation), while only 4 to 5 percent of younger advocates and judges (but 11 percent of law students) had worker fathers (although workers were 42 percent of the labor force in that generation) (Heldrich and Schmidtchen, 1982: 252). The fact that 19 percent of advocates come from professional backgrounds, compared to 11 percent of judges, suggests the strength of self-recruitment (see table 6), even though the proportion from jurist families is unavailable. The upward social mobility fostered by the overall increase in secondary and tertiary education is more pronounced in other faculties, such as education. Law faculties have been the last to reduce elite recruitment, just as they were the last (except engineering) to admit an increasing proportion of women.

The ideological climate of the 1970s had some impact on the political and social attitudes of the jurists of that generation, who were more critical of authority and emphasized the importance of social welfare for public policy and the legal profession. The cohort graduating in the 1980s and early 1990s, however, seems politically more conservative and also more instrumental in their attitudes toward their jobs. Changes in the recruitment of jurists, as well as in the political environment, may have been influential. The slight increase in working-class recruitment has amplified welfare-state liberalism, whereas the higher proportion of women stu-

dents has intensified political conservatism (except on some feminist issues, such as employment discrimination and abortion). Law students have persistently been more conservative than those in liberal arts or social sciences.

WOMEN IN THE PROFESSION

In 1922, after long impassioned discussions, advocacy was opened to women (Reichgesetz über die Zulassung der Frauen zum Richterberuf, July 11, 1922). During the Weimar Republic the number of women advocates was insignificant. As part of their family policy, the National Socialists excluded women from the judiciary (edict of September 17, 1935), and after mid-1936 women no longer were admitted as advocates (Meier-Scherling, 1975). Gender discrimination in the professions ended in the 1950s in the GDR, but women slowly began to enter male domains in the Federal Republic only in the 1970s (see table 7).

In 1966, when women constituted 30 percent of all university students, they were only 10 percent of law students. This changed rapidly in the second half of the 1970s, and by 1980 women were a higher proportion of law students than of all university students (50 and 40 percent, respectively, in 1994) (Statistisches Bundesamt).

Today, legal studies are the second choice of women, surpassed only by medicine (although economics is catching up). The main reason for this dramatic change is declining career opportunities in other fields. Job prospects in teaching, traditionally women's first choice, are very dim at present. The increase in education graduates in the 1960s created an oversupply of teachers, while the declining birth rate and decreased public spending reduced demand. Women have traditionally preferred public sector jobs; for lawyers these were in the judiciary. Women in public service who are raising children are entitled to work part time and can take maternal leave for several years with guaranteed reemployment. Although there may have been some reluctance about employing women because of the organizational problems caused by maternal leave, public services have been particularly careful not to discriminate; nevertheless, women remain concentrated in the less prestigious courts (Wetterer, 1993: 89). Ambitious young men tend to seek prosperous regional law firms with international work. This raises the question of whether the judiciary is losing its paramount status because of the growing proportion of women judges and prosecutors (as is happening in France).

In 1992 women constituted 41.3 percent of jurists doing their in-practice training and 38.6 percent of those passing the second state examination. Approximately 45 percent were joining the judicial service, where

they constituted 22 percent of judges (see table 8). Women judges and prosecutors express high job satisfaction, reflecting the high status and independence of the judiciary, good income, and favorable working conditions (Hassels and Hommerich, 1993: 333).

Their sisters working as advocates face a much more difficult situation. They encounter overt discrimination in seeking jobs, are more likely than men to occupy salaried positions in small firms, more often are underpaid or employed part time (for lack of other offers rather than family obligations), are less specialized, have fewer commercial clients, and earn less as partners (Hommerich, 1988: 40). Most women lawyers are convinced that their working style is distinctively feminine; women and men concur that women have to meet gendered demands and expectations (Schultz, 1990: 346; 1994).

RACISM

German lawyers hardly ever discuss racism. In 1933, however, one of every five advocates in the German Reich and every other lawyer in Berlin was Jewish.^[28] As soon as they seized power, the Nazis began expelling Jewish advocates. The 1935 "Law Against Misuse of Legal Advice" prohibited those expelled from engaging in any kind of practice. The final official expulsion of Jews from the legal profession occurred in 1938. Only a few German Jewish lawyers returned to practice after the war.

Today Turkish, Italian, and Yugoslav lawyers are conspicuously absent, despite the high proportion of Mediterranean immigrants in the population and the increasing importance of immigration law. Since university entrance requirements and state examinations present such high barriers, we might ascribe this to "structural" discrimination rather than individual prejudice. Nevertheless, there are a few lawyers in the third generation of thoroughly assimilated immigrants.

CONCLUSION

The data on the recent growth of the legal profession in Germany are strikingly similar to those for all developed Western countries. Throughout the Western world the number of lawyers has been rising rapidly, and there has been a considerable influx of women into the profession, at least since the 1970s. The largest proportion of all entrants have begun in private practice, partly as a route to other lawyer jobs. Yet, despite the common training, lateral mobility among legal careers is much lower in Germany (and most of continental Europe) than in common law countries.

Legal services tend to be provided within public administrative and private corporate institutions rather than purchased from the professional market on a case-by-case basis. Consequently, the job of a practicing lawyer appears to be concentrated much more on traditional, forensic services than it is in the common law world. The bar, therefore, should be regarded as only a part of the profession of "jurists," even if it is increasing its share.

The German legal profession traditionally has been oriented toward public service rather than advocacy. Law schools teach judges to decide cases, not advocates to represent parties. Future lawyers serve most of their in-practice training with the judiciary and in public administration and little with advocates. Legal training in both university faculties and in-practice settings is highly regulated and controlled by the education boards of the state Ministries of Justice. The fact that legal education generates the recruits for the civil service explains their emphasis on uniformity. The legal profession has been the backbone of the legalistic-authoritarian state, and the need for a reliable, uniform elite of civil servants explains the high degree of state regulation of entry and education.

Yet this has not prevented the number of law graduates from rising sharply. Clearly, the growth of the legal profession in the last two decades was stimulated not by greater demand for legal services but by increased supply caused by the expansion of university training. To the degree that traditional careers for lawyers have not multiplied to meet the output of law graduates, more young lawyers have been pushed into advocacy. The composition of the legal profession is slowly changing as a result. Even though pressure within the profession diminished in the early 1990s through the opening of the new market in the former Eastern states, it will inevitably increase, especially now that legal education has been shortened by about two years.

One might expect such quantitative changes to produce a major reorientation of legal education. On the contrary, reforms by newly founded law faculties have been terminated by national legislation. The legal profession's reaction to expansion has been to defend established boundaries rather than expand the scope of legal services. It is highly doubtful, however, that such a defensive policy can be pursued for long. It is more probable that advocates will respond to overcrowding by seeking new markets. Reform is more likely to be produced by the self-interested actions of particular groups of advocates (backed by the pressure for deregulation from the European Union) than by the efforts of any other political lobby, especially since comparative studies of legal cultures show that the legal services market is influenced more by institutional determinants of supply than by changes in demand or "legal need" (Blankenburg and Verwoerd, 1991).

TABLES

NOTES

[1] During the 1970s academic and practical training were amalgamated in some "reformist" law faculties, but these experiments have been terminated by national legislation. In the former Eastern states all new faculties are starting with the traditional model of legal education.

[2] Justiz-Ministerialblatt (1839: 415-416), quoted in Kolbeck, 1978: 41. All translations are our own.

[3] Quoted in Manstetten, 1967: 255.

[4] See Gneist, 1867 for the ideological background and Magnus, 1929 and Weissler, 1905 for rather eulogistic historical sketches.

[5] There are parallels with nineteenth-century England, where aspiring solicitors had to pay premiums up to £500 to serve five years in articles and newlyqualified barristers had to survive for years without paying briefs.

[6] For parallels with other countries, see Abel, 1989.

[7] In 1992 the failure rate was 22 percent in the first examination and 10 percent in the second.

[8] In the 1970s and 1980s there was a flood of literature on the reform of legal education. For the first proposal, see Loccumer Arbeitskreis, 1970, 1973. For a proponent of the reform attempts and further literature, see Voegele, 1979 and M. Braun, 1980 (a useful overview). For the final evaluation, see Zentrale Forschungsgruppe für Juristenausbildung (1984). A revisionist mood presently prevails, especially in the new law faculties of the former East Germany. For the present state of discussion, cf. Giering et al., 1990.

[9] Recent legislative changes allow law graduates to spend a total of eleven out of twenty-four months of in-service training with an advocate. There are not yet any statistics about who takes this opportunity and how it relates to later careers.

In the 1990s two universities (Bielefeld and FernUniversität Hagen) started to offer preparatory courses for young advocates and law students. FernUniversitäit, which teaches by correspondence courses, attracts about 450 participants a year (equivalent to 15 percent of newly admitted advocates) (Schultz, 1992, 1993).

[10] In Northrhine-Westphalie in 1984, only 9 of 235 examiners were advocates or notaries according to information obtained from the Ministry of Justice at Düsseldorf.

[11] In-service training recently was cut by about a year (The actual training now takes two years instead of two and a half, and the examination period has been shortened.) Because the average length of university studies also decreased, German lawyers now start their professional careers two years earlier than before. However, they still enter professional life later than their foreign colleagues (Deutscher Juristentag, 1990). Although they complained that this put them at a competitive disadvantage, the real reason for the change was the "shortage" of lawyers. When the supply increases, legal education may be lengthened again. There were similar fluctuations in the 1970s, when in-service training was extended on the ground that the quality of young lawyers had declined.

[12] For an overview of various legal occupations, see Kaupen and Werle, 1974.

[13] Klausa (1981) showed that the state of Bremen had the lowest reputation among all German law faculties, even though it would have deserved an above-average rank on objective indicators, such as scholarly merit.

[14] According to Klausa (1981:151 ff.), only about 7 percent of the younger professors (thirty to forty-five years old) have practiced as advocates for a significant time. In this age group, 72 percent have served exclusively in university positions. The limited job experience of younger university teachers may, however, be generationally specific. With the fiscal crisis of the 1980s, few positions were available within universities, so that those who wished to become teachers had to begin their careers elsewhere.

[15] The first article of the Statute on Advocates (BRAO) of August 1, 1959, states that they form an "organic part of the system of justice." For an empirically informed and less ideological analysis of the modern advocate's role, see Volks, 1974.

[16] Annual statistics provided by the Bundesrechtsanwaltskammer and the Federation of Notaries.

[17] Exact figures are not available. The sum of these figures is higher than the total shown in table 2 because 25 to 30 percent of the admitted Anwälte also are in private employment. Insurance companies alone employed 4,500 lawyer-advocates (Hartmann, 1990).

[18] The legal provisions are described in English in Schultz, 1982 and Schultz and Koessler, 1980. Cohn (1960/61) provides the classic description for an English audience. Recent comprehensive accounts in German are Hartstang, 1986, 1991 and Gleiss, 1987. A collection of the existing rules for practicing advocates is Treffkorn and Koch, 1991.

[19] Bundesverfassungsgericht, Urteil vom 14.7.1987, NJW 1988, 191; see also Kleine-Cosack, 1986.

[20] BBG1 I 1994, 2278.

[21] Bundesverfassungsgericht, Beschluß v. 4.11.1992, BB 1993, S. IV.

[22] Bundesverfassungsgericht, Beschluß v. 8.3.1983-1Bvr 1978/80; NJW 83, 1535. The meaning of "unworthy" in the 1992 law was construed very narrowly.

[23] 1986/3 Anwaltsblatt 148.

[24] Nevertheless, a young lawyer can be offered 120,000 DM a year in one of the big law firms doing international work, compared to 40,000 to 50,000 DM in a smaller firm and still less in the least profitable firms.

[25] The incomes of physicians and dentists have been reduced by new statutory regulations aimed at limiting health-care costs.

[26] In 1979, surveys showed that 40 percent of all households were covered by such insurance: About a third of these were insured only for automobile accidents and traffic offenses and the remainder for all legal expenses. Since then insurance sales have increased. See Blankenburg, 1982.

[27] This is a literal translation of "Pflichtverteidiger," although the functions are less limited than those of the British duty solicitor.

[28] See Weinkauff and Wagner, 1968; Juristische Wochenschrift 2956 (1933). Jews represented 4,394 out of 19,500 advocates and 60 percent of Berlin advocates.

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