THE LAWYER IN THE AREA OF TENSION BETWEEN THE PUBLIC INTEREST-ORIENTED ADMINISTRATION OF JUSTICE AND FREEDOM TO EXERCISE THE PROFESSION, USING THE EXAMPLE OF ADVISORY ASSISTANCE
PUBLIC INTEREST-ORIENTED ADMINISTRATION OF JUSTICE AND FREEDOM TO EXERCISE THE PROFESSION, USING THE EXAMPLE OF ADVISORY ASSISTANCE

A PLEA FOR THE IMPORTANCE OF LEGAL FACT-FINDING STUDIES TO OBTAIN EMPIRICAL DATA

Summary/Abstract: As part of his public interest-oriented function of administering justice, a lawyer in Germany must grant advisory assistance (Beratungshilfe) to needy litigants with low incomes on the basis of the legal obligation under § 49a para. 1 of the Federal Code of Lawyers (Bundesrechtsanwaltsordnung – BRAO) in accordance with the Advisory Assistance Act (Beratungshilfegesetz – BerHG). In return, he receives a lower, statutory remuneration claim. The obligation to take over a case with a limited claimto remuneration imposed by law infringes on the lawyer’s freedom to exercise his profession (Berufsausübungsfreiheit) pursuant to Article 12 para. 1 of the Basic Law (Grundgesetz – GG). Such an infringement is only reasonable (angemessen) if the lawyer receives reasonable compensation and it thus becomes constitutional. Legal studies and representative empirical data are required to determine the reasonableness (Angemessenheit).

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