On July 14, 1987, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) rendered two decisions that paved the way to allowing attorney advertising in Germany. Nicknamed the “Bastille decisions” because of the date and their ”revolutionary character,” the decisions allowed attorneys for the first time to advertise their services to the public on a regular basis although several restrictions still applied.
Before these decisions, the local bar associations, as part of their regulation of the German legal profession (Standesrecht), imposed and enforced a disciplinary rule that prohibited advertising by attorneys in order to implement the general professional duty of objectivity of attorneys. The disciplinary rule in particular prohibited self-promotion in a “sensational way” in court or when dealing with the press and radio and TV stations.
Facts of the Two Cases
The plaintiffs in the first case (76 BVerfGE 171) were attorneys licensed to practice law in Germany and members of the respective local bar association. Both plaintiffs were disciplined by the bar association for a violation of the professional duty of objectivity. Although the legal character of the rules of professional conduct were undetermined, they were regarded and applied as “quasi-legal rules.” The Federal Constitutional Court described them in its decision as a “source of knowledge for what is considered proper for attorneys and conforms to the dignity of the legal profession.” It held that the disciplinary actions against the plaintiffs violated their constitutionally guaranteed freedom of occupation, because restrictions on an occupation or profession could only be imposed pursuant to law. However, the Court allowed the rules of professional conduct to continue to have the force of law until the legislature enacted new laws governing the legal profession, as long as the application was not stricter than necessary for the administration of justice.
The plaintiff in the second case (76 BVerfGE 196) was an attorney who was ordered by the police to release the name of a client as part of their investigation into the kidnapping of Hanns Martin Schleyer, the president of the German employers and industry associations. The plaintiff initially refused but later complied. One month later, he reported himself to the bar association for a violation of the duty of confidentiality and filed a criminal complaint for coercion against the police officers. He sent copies of both complaints to the press without any comment. This led to several news reports, some of which named the plaintiff and included a picture of him in front of his law firm shingle. The bar association decided that the release of the client’s name was not a violation of the duty of confidentiality, but it held that the forwarding of the complaints to the press was a violation of the prohibition on attorney advertising and disciplined the attorney. As in its first decision, the Federal Constitutional Court found a violation of the freedom of occupation. It referenced its first decision and held that the conduct in question was in preparation for advertising and not actually advertising and that the rules of professional conduct needed to be applied with restraint until new rules were enacted. It stated that the prohibition of promoting oneself in a sensational way (“improper advertising”) was still valid, because it prevents the public from having a distorted view of the legal profession. (Id. at 208). However, it held that an attorney cannot be prohibited from objectively informing the public about his or her services. (Id. at 209).
Current Law on Attorney Advertising
In 1994, seven years after the decisions of the Federal Constitutional Court, the legislature finally amended the Federal Lawyer’s Act (Bundesrechtsanwaltsordnung, BRAO) and included a section that regulates attorney advertising. In the meantime, there was a lot of confusion on what was acceptable. Most lawyers erred on the side of caution and abided by the still applicable rules of professional conduct.
Today, the Federal Lawyer’s Act provides that “a lawyer may only advertise his/her services as long as the advertisement provides purely factual information about the professional services and is not directed to, or targeted at, a specific recipient or group of recipients.” (BRAO, § 43b). The Rules of Professional Practice for Lawyers (Berufsordnung für Rechtsanwälte, BORA) add that a lawyer may “inform the public about his person and services, provided the information is objective and relates to his professional activities.” (BORA, § 6).
Recent Decisions on Attorney Advertising
For the most part, German attorneys and law firms have not put much time and effort into advertising and have stuck to generic and traditional descriptions of the services they offer. However, one lawyer from Cologne, Germany has repeatedly kept the bar associations and courts busy by using “shock advertising,” allegedly to “start a socio-political and legal discourse.” In a 2015 case, he had asked the bar association to review the permissiveness of a marketing campaign with coffee mugs on which he planned to print provocative pictures next to the title “attorney” and his contact information. One of the proposed pictures included a crossed out picture of a woman beating the exposed buttocks of a child with the text “Corporal punishment is prohibited, §1631, para. 2 Civil Code“. For another mug he proposed a picture of an older man who beats the exposed buttocks of a woman along with the question: “Have you been the victim of violence?” A third mug showed a woman who held a gun to her head, supposedly to kill herself. The proposed text read: “Don’t worry, ask attorney Riemer.” The bar association prohibited the advertisements as a violation of the duty of objectively informing the public about the person and services of the attorney.
The Federal Constitutional Court declined to overturn the lower court’s ruling and stated that the duty of objectivity for attorneys was constitutional. (docket no.1 BvR 3362/14). It held that attorney advertising is not protected as freedom of expression like commercial advertising by other market participants, because attorneys are held to a higher standard. In the Court’s view, the proposed attorney shock advertisements were incompatible with the obligation to objectively inform the public.
The same attorney recently suffered another defeat in court, when the District Court of Cologne (Landgericht Köln) held that he could not advertise his services by mailing out a pin-up calendar that included the name and contact information for his law firm on the top of the page. The Court stated that the attorney was free to generally distribute the pin-up calendar as the pictures might have artistic value, but just not with the information about his law firm included, because he only intended to cause a sensation and not inform about his legal services. (Landgericht Köln, decision of March 23, 2017, docket no. 24 S 22/16).
Comparison to the United States
In general, a lawyer in the Unites States may advertise his or her services unless the communication is false or misleading. In Germany on the other hand, attorney advertising is only permitted as long as the advertisement provides purely factual objective information about the professional services and is not directed to, or targeted at, a specific recipient or group of recipients.
Unlike in Germany where the courts explicitly held that freedom of expression does not apply, attorney advertising in the United States enjoys First Amendment protection. In 1976, the U.S. Supreme Court held in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council that commercial free speech enjoys First Amendment protection. (425 U.S. 748 (1976)). One year later, the U.S. Supreme Court extended the protection of truthful and non-deceptive commercial free speech to lawyers and ruled that lawyers had a constitutionally protected right to advertise their services. (Bates v. State Bar of Arizona, 433 U.S. 350 (1977)). It opined that “[a]dvertising is the traditional mechanism in a free-market economy for a supplier to inform a potential purchaser of the availability and terms of exchange. The disciplinary rule at issue likely has served to burden access to legal services, particularly for the not-quite-poor and the unknowledgeable.” (Id. at 377). This benefit to the public is not mentioned by the German Federal Constitutional Court which instead focuses solely on the right of the attorney to inform the public.
Later cases further defined the limits of attorney advertising and solicitation in the United States. In Zauderer v. Office of Disciplinary Counsel (471 U.S. 626 (1985)), the Supreme Court held that a state could not prohibit solicitation of legal business through advertisements containing truthful and non-deceptive advice and information regarding specific legal problems of potential clients. It stated that “[p]rint advertising […] in most cases […] will lack the coercive force of the personal presence of a trained advocate.” (Id. at 642). With regard to the use of (provocative) illustrations in lawyer advertising, it held that “commercial illustrations are entitled to the First Amendment protections afforded verbal commercial speech […] the mere possibility that some members of the population might find advertising embarrassing or offensive cannot justify suppressing it. The same must hold true for advertising that some members of the bar might find beneath their dignity.” (Id. at 648). This is in contrast to the German rule with its purpose of objectively informing the public to “uphold the dignity of the legal profession.”