Why aren't there more lawyers?

Lawyers in the Bundestag: a little less confidentiality?

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Mask affair, Azerbaijan connection, dubious secondary employment: Stricter rules of conduct could soon apply to members of the Bundestag. Lawyers are also affected. Is the attorney's duty of confidentiality crumbling for the RA-MdBs?

While the investigations into the business of Union MPs with Corona protective masks are taking on ever larger dimensions, the parliamentary groups of the Union and the SPD are discussing what legal conclusions they can draw from it. The discussion is not only about upgrading the relevant criminal offense of bribery and bribery of elected officials (§108e StGB) to a crime. Various changes to the law on representatives and the law on political parties are also under discussion. * In the #GroKo, the SPD in particular insists on a clear tightening of parliamentary transparency rules. The comrades have drawn up a draft law, according to which MdBs must in future provide more precise information on the scope of their secondary activities.

The aim is to reveal whether the mandate is still the focus of the MP's work. All ancillary income of the members of the Bundestag should in future be published in exact amounts ("in euros and cents"). The previously applicable tiered system for ancillary income, according to which the degree of disclosure is based on the respective profit or the scope of the participation, is to be repealed.

In principle, these rules should also apply to the numerous lawyers in the Bundestag. However, unlike other professional groups, certain exceptions apply to them due to their status as holders of professional secrets. So that you do not violate your legal professional secrecy according to § 43a Abs. 2 Bundesrechtsanwaltsordnung (BRAO), you are not allowed, unlike other professional groups, to disclose your contractual relationships with clients.

According to Section 1 (5) of the current rules of conduct of the German Bundestag, the obligation to notify the President of the Bundestag therefore "does not include the disclosure of facts about third parties for which the Member can assert statutory rights to refuse to testify or to maintain confidentiality". The President of the Bundestag has so far waived the option, which is basically provided for in the rules of conduct, of specifying an industry name instead of information about the client.

At least name the industry

If the SPD and the Left have their way, that should change in the future. The SPD draft law provides that instead of the name, at least the industry in which the client or contractual partner is active is to be specified.

The left also introduced a corresponding motion to the Bundestag, which was debated there on Friday. Left group leader Amira Mohamed Ali agreed LTO: "We are aware of the tension between transparency and professional secrecy. We want to resolve it in such a way that for members of parliament who work as lawyers on the side, the obligation to notify is to be given in such a way that instead of giving details of the client, an industry name is given is. "

Even if the proposal is largely identical to that of the SPD, in the Social Democrats' draft law, the industry may not be named "if the MP declares that the client or contractual partner can be identified by the industry information, e.g. if in the constituency of the MPs only a limited group of people is active in a certain industry. " Left parliamentary group leader Mohamed-Ali does not pose a fundamental problem with the SPD proposal, but points out: "From our point of view the decisive factor would be what the MdB then has to explain. A mere unsubstantiated (protective) assertion by the MdB may not be enough."

The SPD and Left Party’s proposal also met with approval from members of other opposition factions: The political spokeswoman and lawyer Katja Keul from the Greens, like AfD-MdB and lawyer Christian Wirth, considers it to be a "viable path". And the lobby control organization states: "Client protection cannot and should not be revoked for lawyers, but reporting the industry would be important," says Timo Lange.

Bundestag Vice President Kubicki: "Half-baked proposal"

The position on this in the FDP parliamentary group is somewhat more inconsistent. Your first parliamentary managing director and lawyer Dr. Marco Buschmann says opposite LTOthat he could "personally" imagine such a rule, provided that mandate secrecy is adequately preserved. His party colleague, legal politician and lawyer Katharina Willkomm also agrees: "The proposal seems to be workable. You can pursue your work as a lawyer, keep client confidentiality and still show transparency. The most important thing is that other people see how much one gets from other activities. "

On the other hand, FDP Bundestag Vice President Wolfgang Kubicki, who is also a lawyer at the same time, reacts to the suggestions of the SPD and the Left "Which industry should a criminal defense attorney specify and what added value does this information have? Above all, if it is not at all clear what about." it actually goes in the matter? divorce? traffic accident, tax structuring or building permit? a half-baked proposal that makes it clear that even in the SPD parliamentary group there is no longer enough own practical expertise. "

The Bundestag deputy considers the applicable rules in this context "correct and sufficient": Nobody could want, according to Kubicki, "that the exercise of the profession - regardless of which profession - becomes so unattractive in addition to the parliamentary mandate that in the end only Members of the public service or dropped out students still decide to take on political responsibility in parliament, adding that a "glass parliament" is not a desirable goal.

Lawyers' associations insist on mandate confidentiality

Kubicki's concerns are grist to the mill for lawyers. Because they are on alert after the SPD and left’s proposals have become known. The general manager of the German Lawyers' Association (DAV), Dr. Sylvia Ruge, clearly rejects the suggestion for naming the industry. Ruge refers to the professional secrecy of the legal profession and notes that the client's secrets are even protected by criminal law.

The DAV does not accept the restriction that the SPD envisages in its draft law in favor of lawyers: "That too is not a viable option," says Ruge. Because the declaration of the Member of the Bundestag could in certain cases nevertheless allow "conclusions to be drawn about client relationships". "The mandate's secret remains absolute. Mitigating the plans also harbors the risk of the secret creeping under," warns Ruge. The BRAK does not want to comment on the proposal, but a spokeswoman for the chamber also makes it clear: "From the BRAK's point of view, the unrestricted preservation of the lawyer's duty of confidentiality is of the utmost importance."

There is also rejection from the parliamentary group, whose MEPs have been most distressed in recent weeks, from the Union: "An industry solution entails the risk that the mandate itself will ultimately be disclosed," says Union parliamentary group vice-president Thorsten Frei LTO to consider. The chairman of the BT internal committee, CSU-MdB and attorney Andrea Lindholz is of the opinion that the tension between professional secrecy and transparency can best be resolved "by strictly limiting commercial secondary activities and completely excluding them in parliamentary leadership positions".

Soon no more lawyers in the Union parliamentary group?

Lindholz is apparently referring to cornerstones for a code of conduct that is currently being discussed in the Union parliamentary group LTO is present. According to this, all mandate holders in the Union who have a top position in the parliamentary group (parliamentary group chairmen and their deputies, parliamentary managing directors, legal advisors) are to be prohibited from any paid secondary employment subject to sanctions.

However: The seven lawyers who are currently affected by this in the CDU / CSU parliamentary group committee then have a completely different problem: If a lawyer is prevented from practicing their legal profession, their admission to the legal profession is at stake for them.

DAV professional lawyer Markus Hartung explains: "If someone is not able to practice the legal profession because of parliamentary duties beyond the mere parliamentary mandate, then the case law of the BGH on after-work lawyers could come into consideration - because a lawyer must be able to do so to actually be able to practice his profession. If that is not possible, he has to return his license to practice law. "

The managing director of RAK Cologne, Martin W. Huff, also has concerns: "In principle, a licensed lawyer must have the opportunity to work as a lawyer at any time, even if he is active in a different context. If a member of parliament is obliged, no longer paid legal work to exercise, then he would actually have to apply for the suspension of his admission for the duration of the mandate - if necessary by analogy - according to § 47 para. 2 BRAO. "

This, according to Huff, then means that lawyers are not allowed to be practiced and that this fact must also be pointed out in the national lawyers' directory, on letterheads and on the MdB's homepage.

*Editor's note: After the article was published, the parliamentary group chairmen of the Union and SPD announced an agreement on key points: Among other things, Section 108e of the Criminal Code is to be reformed. In addition, notifiable income of members of the Bundestag from 1,000 euros from secondary activities and company investments will in future be published with the exact amount (in euros and cents). The "abuse of membership in the German Bundestag for business purposes" is also to be sanctioned. The key points do not contain details on how to deal with professional confidentiality holders (March 26, 2021, 1:18 p.m.).