Order of the 2nd Chamber of the First Senate of 13 June 2002
– 1 BvR 736/02 –

...

RULING:

The constitutional complaint is not admitted for decision.

GROUNDS:

I.

The complainant solicitor objects to the requirement applicable to the solicitors who are associated in a partnership to list the names of all German partners on their letterheads.

1. In accordance with § 10.1 sentence 1 of the Professional Code of Solicitors (Berufsordnung für Rechtsanwälte – BORA; Communications of the German Federal Bar (BRAK-Mitt) 1996, p. 241), the names of all partners must be listed on letterheads with at least one forename written out, even when a short form is used.

a) The applicant – a German national who is registered as a solicitor at Düsseldorf Regional Court (Landgericht), and who has his main office in Düsseldorf – is a member of a partnership under English law. The partnership with roughly 250 partners and about 1,000 solicitors is headquartered in London. The letterhead used by the applicant contains only the highlighted abbreviated name of the partnership and the name of the applicant. The footer states “The list of partners can be inspected at the address listed above“. It also states that this list is available on the Internet.

b) Düsseldorf Bar (Rechtsanwaltskammer), calling on § 10.1 1st sentence of the Professional Code of Solicitors, instructed the applicant to list on his letterhead all partners who are registered as solicitors with a German court. The action filed against this was unsuccessful.

In the view of the Federal Court of Justice (Bundesgerichtshof) (NJW 2002, p. 1419), § 10.1 1st sentence of the Professional Code of Solicitors is constitutional. This provision is said to be based on § 59 b.2 No. 1 (e), Nos. 3, 4, 5 (a) and No. 8 of the Federal Regulations for Practising Lawyers (Bundesrechtsanwaltsordnung - BRAO). The encroachment on the freedom to practice an occupation (Art. 12.1 2nd sentence of the Basic Law (Grundgesetz - GG) brought about by § 10.1 of the Professional Code of Solicitors is said to be justified and proportionate by satisfactory reasons related to the common good. The provision is said to serve the interest in information of those seeking justice. Anyone availing themselves of the services of a solicitor was said to wish to know without having to make complicated enquiries to whom they were entrusting the defence of their legal interests and whether the person commissioned did not at the same time represent opposing interests, or whether they were in another way at risk of a conflict of interests. This information function is said to exist despite the electronic media. The fact that, in § 10.1 of the Professional Code of Solicitors, the legislature handing down the Code only required a statement of the partners, and not of the employed solicitors, solicitors associated in a shared office and freelancers, and that the Bar granted firms a period where a change occurred in the composition of the partners to change the letterheads appeared to be justifiable because the purpose of the provision as presented was still much better met than by not providing the information. These restrictions also took the point of view of acceptability into account. It was said not to be impossible to adhere to the requirement of naming where there were a large number of partners. In addition to the letterhead, the back of the letterhead, and where necessary also a further sheet could be used. There was no less incisive means to achieve the purpose of the provision. Both requesting a list of partners or access via the Internet required those seeking justice to take action.

2. In his constitutional complaint, the applicant complains about the violation of his fundamental rights under Art. 12.1 and Art. 3.1 of the Basic Law. There is alleged to be no basis for empowerment for § 10.1 of the Professional Code of Solicitors. Certainly, this provision is alleged to be substantively unconstitutional since it is said to be disproportionate. The requirement to name the shareholders is allegedly unnecessary since sufficient other means are said to be available to provide information: the contract, the requirement to make an announcement on conclusion of contract, or reference to the Internet. Furthermore, no other profession had a letterhead requirement corresponding to that of § 10.1 of the Professional Code of Solicitors. The requirement was also alleged to be unacceptable because it was no longer possible for large and international partnerships to adhere to it in practice due to the constant fluctuation of the partners.

II.

The preconditions for acceptance of the constitutional complaint (§ 93 a.2 of the Act on the Federal Constitutional Court (Bundesverfassungsgerichtsgesetz – BVerfGG)) do not apply.

1. The constitutional complaint has no fundamental constitutional significance (§ 93.a.2 (a) of the Act on the Federal Constitutional Court). The Federal Constitutional Court has already ruled that any activity is included in the freedom to practice an occupation guaranteed by Art. 12.1 1st sentence of the Basic Law which is related to the practice of the occupation and which serves the purpose of such practice. The area of occupation-related activities also includes portrayal of the occupation to third parties on the part of those entitled to the fundamental rights. State measures which restrict them in doing so are encroachments on this freedom (see Decisions of the Federal Constitutional Court (Entscheidungen des Bundesverfassungsgerichts – BVerfGE) 85, 248 <256>; 94, 372 <389>). Encroachments on the freedom to practice an occupation require not only a statutory basis, but are only compatible with Art. 12.1 of the Basic Law if they are justified by sufficient reasons of the common good and comply with the principle of proportionality, if therefore the means selected is suitable and indeed necessary to achieve the purpose being pursued, and if the boundary of acceptability is still respected in an overall comparison between the gravity of the encroachment and the weight of the reasons justifying it (see BVerfGE 76, 196 <207>; 94, 372 <389 and 390.>; 101, 331 <347 et seqq.>).

2. The acceptance of the constitutional complaint is also not suitable to implement the applicant’s fundamental rights (§ 93 a.2 (b) of the Act on the Federal Constitutional Court).

a) It is not constitutionally objectionable for the Federal Constitutional Court to consider § 59 b.2 No. 1 (e), Nos. 3, 4 and 5 (a) and No. 8 of the Federal Regulations for Practising Lawyers to constitute a sufficient basis for empowerment for § 10.1 sentence 1 of the Professional Code of Solicitors.

b) Furthermore, it is also constitutionally unobjectionable that the Federal Court of Justice regards § 10.1 sentence 1 of the Professional Code of Solicitors to be substantively constitutional – in particular compatible with Art. 12.1 of the Basic Law.

aa) The Federal Court of Justice is correct in that this provision serves important interests of the common good. The provision primarily serves the interest in information of those seeking justice. The letterhead is an important source of information for clients on the identities of the partners (see Feuerich/Braun, BORA, 5th ed. 2000, § 10 BORA marginal no. 2; Römermann, in: Hartung/Holl, Anwaltliche Berufsordnung, 2nd ed. 2001, § 10 BORA marginal no. 29). The client is thus able to recognise whether there is a danger of representing opposing interests, or whether a collision of interests is to be feared elsewhere.

bb) The naming requirement is also a suitable means to achieve the purpose being pursued. Even if that goal may be even better achieved by a more strict arrangement, this does not place in question the suitability of the arrangement (see BVerfGE 101, 331 <349>). It is also not objectionable that in the context of the discretion available to it the legislature handing down the Code restricted itself to only requiring the names of the partners to be stated on the letterhead, and not additionally the naming of the employed solicitors, of the solicitors associated in a shared office and of freelancers, nor can the applicant derive rights from the tolerant enforcement of the provision (the Bar grants periods to change the letterhead and only requires the statement of the partners within the country). Hence, at least the most necessary precautions are taken in light of the interests of the common good.

cc) It is also not evident that the purpose pursued by the legislature handing down the Code could have been achieved by less incisive means. Understandably, the Federal Court of Justice indicates that requesting a list of the partners from the office, from a Register or from the Internet requires special activities to be performed by the party seeking justice which the client will take only when required. The insight may be expected from a solicitor who accepts as a major basic obligation that he/she must avoid any conflict of interests, that in this respect they depend all the more on the attentiveness of their clients the larger the office to which they belong. The significance of the information contained on the letterhead has tended to increase as office mergers have become more common. More lenient methods are not those which pose an increased burden on the client in terms of initiative and control.

dd) The applicant can also be expected to restrict his/her freedom to practice an occupation. It is understandable if the Federal Court of Justice states that the interest in information of those seeking justice and of the other parties concerned is all the more weighty the more complex are the conditions. So that the client can recognise whether a partner is already representing the opposing party, it is important for them to be informed via the letterhead of the names of the shareholders. By contrast, the applicant ultimately only states that he considers the provision to be troublesome and antiquated. These interests have a much lesser weight. Furthermore, the technical problems of designing the letterhead can also be overcome when there is a large number of partners – as the letterhead submitted in this case shows.

c) The requirement to list the shareholders in the letterhead also does not violate Art. 3.1 of the Basic Law. Since the prohibition of opposing interests only applies to solicitors – and for instance not to tax advisors or auditors – the subject-matter justifies making special arrangements for solicitors.

Further grounds are waived in accordance with § 93 d.1 sentence 3 of the Act on the Federal Constitutional Court.

This ruling is not challengeable (§ 93 d.1 sentence 2 of the Act on the Federal Constitutional Court).