Friday, 2. December 2022

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Are lawyers “systemically relevant”?

In these Corona times, there is a lot of talk about some professions being “systemically relevant.” Do we lawyers count among them?

1. Well, at first glance this claim seems a bit presumptuous. Of course, doctors and nurses are system-relevant, i.e. professions that save human lives. Lawyers, on the other hand, are rarely life-savers.

2. On the other hand, it must not be overlooked that a functioning state or society also needs a functioning judiciary.

a) The constitutional or administrative courts intervene when politicians restrict people’s liberties too much.

b) Even in Corona times, people commit crimes that must be prosecuted, brought to trial and sentenced. This is not possible without prosecutors and criminal courts.

c) And even in Corona times there are urgent matters in the area of civil law in which a quick court decision is indispensable. Certainly, some civil proceedings or oral hearings can be postponed for a few weeks without the world coming to an end. The lives and health of those involved in the proceedings come first, no question.

But if, for example, the landlord arbitrarily changes the lock and thus locks the tenant out of the rented apartment, the tenant must be able to take legal action against this by way of an injunction, and quickly.

And if competitors infringe other people’s patents or copyrights, the infringed party must also rely on summary proceedings (preliminary injunction). …

There are many more (and certainly better) examples.

3. If the courts are system-relevant, then so are the lawyers.

a) Formally, this could be justified by the fact that the lawyer is an “organ of the administration of justice”. But well, this is primarily a phrase.

b) The following examples are perhaps more convincing:

In criminal proceedings, the defendant has the indispensable right to legal counsel. Thus, criminal proceedings cannot take place without defense counsel.

As is well known, here in Germany procedural law requires that a party needs to be represented by a lawyer in order to appear before the district courts (Landgericht, LG), the higher regional courts (Oberlandesgericht, OLG) and the Federal Court of Justice (Bundesgerichtshof, BGH). The parties cannot appear before these courts themselves, but must rely on their legal representative. This shows that even in civil law matters it is not possible to do without a lawyer.

And even if there is no formal compulsion to be represented by a lawyer, from a practical point of view it is often almost impossible to do without one. Let’s take, for example, proceedings for protection against dismissal (termination of employment) before the labor court. Well, the employee could also represent himself. But would he (or she, for that matter) also be in a position to file the right motions? I imagine a labor judge who first has to instruct the parties about the relevant procedural law during the hearing. He (or she) can quickly be suspected of bias if he helps one party formulate the motions more than the other. In addition, the course of the proceedings would certainly be severely impaired without the preparatory legal briefs.

Is it not possible to simply postpone at least the out-of-court activity, i.e. attorney consultations? To some extent, sure.  But when it comes to a living will for a seriously ill person or the drafting of a (complicated) will for a 90-year-old entrepreneur, this is certainly more problematic, especially in times of a pandemic.

c) Couldn’t we differentiate, i.e., say that the criminal defense lawyer is systemically relevant, while the contract lawyer is not? In my opinion, such a differentiation is not practicable.

On the one hand, this is because many lawyers still work on several areas of law. For example in the area of corporate law, they both handle urgent interim injunctions in shareholder disputes and draft GmbH contracts that may be subject to deferral.

And on the other hand, it is simply not manageable to differentiate with regard to the same lawyer in terms of which legal activity he is currently performing. In the case of doctors, if I understand it correctly, no distinction is made as to whether they are carrying out a corona treatment that cannot be postponed or whether they are working prophylactically.

4. Conclusion: The courts are undoubtedly relevant to the system. And since the judiciary cannot function properly and effectively without lawyers, as explained, lawyers are also systemically relevant. Even if they do not directly save human lives like doctors/virologists.

In my opinion, the qualification as system-relevant must then also apply to paralegals. After all, many a law firm would not function, or at least would function much worse, if the staff stayed at home to look after their own children. It’s no different in a law firm than it is in a clinic.

Conversely, this does not mean that the doctor and the lawyer must necessarily be treated absolutely the same in terms of system relevance. The saying – “Feeling sick? Call your lawyer!” – has a different background, as is well known. …

5. Last point: Times of a pandemic should also make us aware of which work and services are really important. So let’s pay (all) health care workers a reasonable salary instead of fervently discussing whether a single soccer player is worth 100 million euros. This sum would certainly be better invested in the healthcare system!

Dr. Wolfgang Gottwald
Rechtsanwalt/Attorney at Law

DR. GOTTWALD
Rechtsanwalt
Attorney at Law

Leopoldstraße 51
80802 München

Tel.: 089/383 293-10
Fax: 089/383 293-13

w.gottwald@kanzlei-dr-gottwald.de