Wednesday, 22. May 2024

Previous slide
Next slide

What you may have always wanted to know about American and German lawyers …

What images go through your mind when you imagine a lawyer?

Do you think of television series like L.A. Law, Ally McBeal, Boston Legal or Suits? Or more likely Better Call Saul or Goliath? Or the movie The Lincoln Lawyer? … If you’re a little older, like me, maybe you remember Petrocelli or Matlock? Many of us decided to study law precisely because of these role models.

Or here in Germany: Do you still remember „Liebling Kreuzberg“, that somewhat peculiar attorney from the (then rather rundown) Kreuzberg area of Berlin?…

But that is fake reality or, strictly speaking, pure fiction. Exaggerated high gloss (L.A. Law, Suits) or exaggerated misery (Saul, Goliath).

And I have always wondered how Mr. Liebling could make a living with his very „human“ approach to cases.

Let’s take a more matter of fact and objective look at the world of US and German lawyers. In the following, I will pick out a few questions.

1. How does one actually become a lawyer in Germany or America?

Here is the short version: High School, College, Law School (3 years, J.D. degree), Bar Exam – done (USA).

And in Germany: Abitur (comparable to High School/College level), law studies at a German university (at least 4 years, completion of 1st state exam), legal clerkship and 2nd state exam (3 years). That will make you a lawyer in Germany.

Plus, if you also want to practise in the US: one-year master studies at a US law school (LL.M, M.C.J. or similar), Bar Exam – same result, only a few years later; in return, you are also admitted to the bar in Germany.

Due to the lack of a legal traineeship, the young American lawyer starts his professional life relatively ill-prepared, usually as a first year associate in a (larger) law firm. After all, you don’t learn the practical aspects of being a lawyer at university. Neither in Germany nor at an American law school. But the German “Referendariat” (compulsory traineeship/clerkship) does at least help a litte to prepare you for the job.

On the other hand, the US colleague, if he or she does not have rich parents, often starts with a six-digit amount of debts (student loans); because the tuition fees at an American elite university can amount to $ 65,000.00 and more per year, plus the cost of living. You then have to “recoup” that with your starting salary or fee income. This is another reason why lawyers in the USA are often very expensive.

Studying in Germany, on the other hand, is usually (almost) free at most universities. Not the private ones, but they are in no way better than the public universities. On the contrary.

2. Is an American or German lawyer admitted to practice in the whole USA or in all of Germany?

The United States, as you know, consists of 50 individual states. In my opinion, federalism goes further there than it does in Germany.

a) In Germany we also have federal states, but the admission to the bar in this country always extends to the entire country. A lawyer in Munich can therefore also appear before the courts in Hamburg or Berlin without further ado. And vice versa, of course.

b) In the USA, on the other hand, you are admitted to the bar in the state in which you took and passed the bar exam. So for example in New York or in California or in Florida. … You can take the bar in several states, but then you have to pass the exam in each state. As far as I know, some lawyers do that. Especially when certain states are close to each other. For example, New York attorneys are often admitted to practice in New Jersey and Connecticut (tri-state area). A New York lawyer, on the other hand, cannot easily appear before a court in California.

3. Are there specialist attorneys in Germany and in the USA?

a) In Germany, it has been possible for some time to become a specialist attorney (Fachanwalt)  in certain areas of the law. It started with the specializations in labor law, family law, tax law and so on. In the meantime, you can also find specialist lawyers for agricultural law, medical law and international business law.

To become a specialist lawyer in Germany, you have to complete a theoretical course (Fachanwaltslehrgang) and pass an exam at the end of the course. In addition, one must prove a certain number of practical cases in the relevant field of law. If you meet these requirements, you will be authorized by the respective bar association to use the title “Fachanwalt für …“ or „Certified Specialist for …” upon application.

And in order to retain the title of specialist lawyer, one must provide evidence of at least 15 hours of continuing education in one’s area of expertise each year.

b) In the USA, the situation is as follows: In 11 of the 50 American states there are so-called Certified Specialist Attorneys, among others in California, Arizona or Florida. New York, on the other hand, does not have a corresponding state program, but recognizes the certifications of other states in principle.

The California Board of Legal Specialization (CBLS) has the following requirements for a Board Certified Specialist Attorney: at least 5 years of professional experience, active membership in the California Bar Association, passing a written examination and proof of special competence in the area of specialization.

Specializations in California include bankruptcy law, criminal law, family law, distribution law, immigration law, tax law, and appellate law.

This seems to me to be quite comparable to our German system.

c) Of course, lawyers in other US states, e.g. New York, are often specialized as well. Designations such as Immigration Lawyer or Tax Specialist are quite common.

4. Do all German and American lawyers also appear in court?

a) In Germany, most lawyers work both in an advisory and forensic capacity. They therefore also appear more or less frequently in court.

b) In England, on the other hand, there is a proper division into lawyers who are only active out of court (so-called solicitors) and trial lawyers (barristers). Only barristers may appear in court.

c) This strict division does not exist in America. Attorneys are allowed to practice both in and out of court. However, since these are quite different activities and also requirements, not all attorneys do both. I would rather say that litigation – and even more appeals (Appellate Law) – can be called a specialty, more so than here in Germany. At least in larger law firms, there is a litigation department and correspondingly litigation lawyers or litigators. These are lawyers who work primarily or exclusively in litigation.

Accordingly, it is quite common that some American lawyers hardly ever appear in court. Litigating in court in the U.S. is a thing of its own. You are probably familiar with it from movies. Some of the trial lawyers put on quite a show there. Especially when they are acting in front of a jury. A certain theatricality is definitely part of it. That’s not everyone’s thing, and not everyone can do it; it’s something the litigation specialist does. This does not mean that there are not a large number of lawyers in the U.S. who do both consulting and litigation.

Litigation in Germany is much more matter of fact, particularly in civil cases. You argue in writing when you submit your briefs to the court. And there will be no jury to impress, just a (more or less) seasoned judge who has seen it all. …

5. Do German and American lawyers have to undergo continuing legal education (CLE)?

a) In Germany, as mentioned above, there is a continuing legal education requirement (only) for specialist attorneys. 15 hours per year per specialist area. Does this also exist in the USA?

b) Well, I can only speak for the state of New York, where I am also admitted to the bar. There, you have to certify every two years that you have completed at least 24 hours of Continuing Legal Education (CLE), unless one of the exemptions applies.

How does an American lawyer provide this proof of continuing education? As a German specialist lawyer, you have to provide the bar association with specific proof of which continuing education course you have attended and when. The Americans save themselves this effort. There, it is sufficient if the lawyer confirms in his two-year return that he has completed the required number of continuing education hours. As far as I can tell, this is not checked at all.

6. Are all (American) lawyers rich?

a) A fee schedule like our RVG (Rechtsanwaltsvergütungsgesetz) does not exist in the USA. As a rule, fees are charged according to time spent (billable hours), sometimes also on a contingency basis.

In Germany, there is the option of statutory fees (RVG) and fee agreements. Business law firms usually charge by the hour, with rates ranging from € 150 to € 1.000 plus VAT. In court cases (litigation), you must not charge less than the statutory minimum, which depends on the amount in controversy (Streitwert).

Successful lawyers earn a lot of money, in both countries. You have probably heard that somewhere. In the US, hourly rates of $500 or a contingency fee of 30% of the recovered amount are not uncommon. Real „superstar lawyers“ earn even much more.

b) Such star lawyers are very popular and present in the media. If you remember the criminal proceedings against Michael Jackson (for child abuse) or the football player O. J. Simpson (murder), the respective defense attorneys were always very often in the news. You may still remember this defense lawyer’s line to the jury: “If it doesn’t fit you must acquit!” Meaning: If the (bloodstained) glove found at the crime scene does not fit the defendant, then you must acquit him. He was then acquitted. And the lawyer became famous with it.

In Germany, only the criminal lawyers might get some news coverage. And maybe those that represent well-known media people in invasion of privacy cases. (Other) civil law cases, on the other hand, are mostly unnoticed by the public.

c) But these media events are exceptional cases. The ordinary lawyer is not a celebrity even in the United States. And as is so often the case in the United States, there are huge differences among lawyers.

You know that Netflix series Better Call Saul? There’s a somewhat down-and-out lawyer desperately trying to win clients. Or maybe you’ve seen how lawyers in the U.S. used to advertise excessively in the Yellow Pages looking for clients. At that time the term Ambulance Chasers was established. These are (unfortunate) colleagues who drive behind the ambulances in order to get a mandate from the parties involved in the accident while still at the scene. It’s sad, really sad.

I would say that in Germany it has not come this far, yet. The statutory fees system somewhat guarantees every lawyer a rather decent income. And although law school is very popular, the number of lawyers is still lower that in the US, even compared to the population. But we are heading in a difficult direction with more and more lawyers, and legal tech taking away (repetitive) legal work from people in the legal profession.

d) Already now, there is a large number of lawyers in America who must “stay afloat” with rather aggressive advertising methods. Lawyers there advertise for clients by almost any means. Advertising in supermarkets and at bus stops, advertising on large posters and on house walls. Spectacular television spots dramatizing an accident, and intrusive radio ads. Take a drive through Las Vegas and turn on the radio. Practically every 15 minutes, some lawyer is offering his or her services. Immigration, personal injury, domestic violence … – you name it. Including free hotline and so on.

Germany is heading in that direction, too, I would say. You can see ads for legal services on supermarket carts and on the subway. Some time ago when I was a student, this would have been unimaginable, incompatible with the reputation of a lawyer and prohibited by the code of conduct for attorneys. But times they are a-changing.

You can assume that these lawyers are not bathing in money, but have to stretch quite a bit to make a living. So you don’t necessarily earn a golden nose, as we say in German, by practicing law, not in Germany and not in the USA. …

Dr. Wolfgang Gottwald
Rechtsanwalt/Attorney at Law

Attorney at Law

Leopoldstraße 51
80802 München

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