AS TO THE ADMISSIBILITY OF
Application No. 14622/89
by Walter-Georg HEMPFING
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 7 March 1991, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 12 December 1985
by Walter-Georg Hempfing against the Federal Republic of Germany and
registered on 6 February 1989 under file No. 14622/89;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they have been submitted by the
parties, may be summarised as follows:
The applicant, born in 1947, is a German national and resident
in Stuttgart. He is a lawyer by profession.
In a circular letter of 17 December 1983 the applicant
addressed himself to several Stuttgart collection agencies. The
letter reads as follows:
[German]
"Sehr geehrte Damen und Herren,
durch einen Mandanten bin ich auf Ihr Büro hingewiesen worden.
Möglicherweise suchen Sie - jetzt oder in der nächsten Zeit -
einen zusätzlichen Vertreter vor Gericht.
Falls ja, bin ich gerne bereit, mich von Ihnen 'testen'
zu lassen: ich glaube, Ihre Interessen zu Ihrer Zufriedenheit
zu vertreten.
Ich bin 35 Jahre alt, über fünf Jahre Anwalt, war vier davon
in Reutlingen/Tübingen zugelassen und habe dort bereits
etwa zwei Jahre lang in einem größeren, renommierten Büro
ein großes Unternehmen Ihrer Branche betreut.
Ich vertrete momentan verschiedene US-amerikanische
Auftraggeber (hauptsächlich über zwei Büros) hier in
Deutschland bei der Eintreibung von Forderungen.
Für ein weiteres Gespräch stehe ich Ihnen gerne zur
Verfügung."
[Translation]
"Madam, Sir,
a client has drawn my attention to your agency.
Possibly you are, now or in the near future, looking
for a further counsel in court. If so, I am quite
prepared to be put to the test. I believe I can
represent your interests to your satisfaction.
I am 35 years old, counsel for more than five years,
four of which I practised in Reutlingen/Tübingen,
where I have already, for about two years in a
renowned law office, represented a big firm in your
line of business.
For the time being, I am representing several clients
from the United States of America (mostly through
two offices) in collecting outstanding debts here in
Germany.
I would gladly be at your disposal for a further interview."
On 19 June 1984 the Stuttgart Bar Association (Rechts-
anwaltskammer) censured the applicant's professional conduct and
issued an official reprimand (schärfste Mißbilligung). The
Association, referring to the applicant's circular letter of
17 December 1983, found him guilty of having violated S. 2 para. 1 of
the Rules for Lawyers' Professional Conduct (Standesrichtlinien).
The Association considered that the applicant's circular letter
constituted a particularly striking case of prohibited advertising on
the ground that he had taken the initiative of contacting possible
clients by mail. The applicant had thereby plainly contravened a
fundamental principle of the lawyers' professional rules. To abandon
this principle would have drastic consequences in particular for
newcomers, because the big and established offices, with their
financial means, could overwhelm any newcomers in advertising.
On 8 November 1984 the Bar Association dismissed the
applicant's appeal (Einspruch). It considered in particular that the
prohibition on advertising could not be changed in respect of young
counsel. If that were the case, established offices could always
employ a young lawyer in order to advertise. As a consequence, young
lawyers with their own law office would be at an even bigger
disadvantage. In any event, only the General Assembly of the Federal
Bar Association (Bundesrechtsanwaltskammer) would be competent to
change the Rules.
On 24 July 1985 the Stuttgart District Disciplinary Court for
Lawyers (Ehrengericht) dismissed the applicant's request for a
judicial review of the decision of the Stuttgart Bar Association.
The Court found that the applicant had gravely violated the
prohibition on advertising in taking the plain initiative to address
collection agencies and in offering his services as counsel in order to
get briefs. Furthermore, the Bar Association and the
Disciplinary Court for Lawyers were not competent to restrict the
prohibition on advertising and, in any case, there was no such
necessity. A lawyer had other means of drawing public attention to his
qualifications, in particular the quality of his work as a lawyer,
publications, participation in conferences or membership in local
associations. Abolishing or restricting the prohibition on
advertising could only be to the advantage of the established law
firms, never to the young lawyer. Moreover the duty to refrain from
advertising corresponded to the liberal profession of lawyers, which
was, in accordance with S. 2 para. 2 of the Federal Regulations for
Lawyers (Bundesrechtsanwaltsordnung), not considered as a trade, and
presupposed a relationship of trust with the client.
On 11 October 1985 the Federal Constitutional Court (Bundes-
verfassungsgericht) refused to accept the applicant's constitutional
complaint (Verfassungsbeschwerde) on the ground that it offered no
prospect of success. The Constitutional Court found in particular
that the duty to refrain from advertising was based on S. 43 of the
Federal Regulations for Lawyers and specified in the Rules of
Professional Conduct. In the present case the interests in a proper
administration of justice (geordnete Rechtspflege) outweighed the
applicant's right to freedom of expression. The Constitutional Court
noted in particular that the applicant had, of his own accord, offered
his services to unknown persons, and his circular letter contained
information which the addressee could not directly verify.
According to S. 1 of the Federal Regulations for lawyers, a
lawyer is an independent organ in the administration of justice
("unabhängiges Organ der Rechtspflege"). His rights and duties are
laid down in the general provision of S. 43 which reads as follows:
[German]
"Der Rechtsanwalt hat seinen Beruf gewissenhaft auszuüben. Er
hat sich innerhalb und außerhalb des Berufes der Achtung und des
Vertrauens, welche die Stellung des Rechtsanwalts erfordert, würdig zu
erweisen."
[Translation]
"A lawyer has to practise his profession conscientiously.
Whether in pursuit of his profession or otherwise, he has to prove
himself worthy of the respect and trust which the position of a
lawyer requires."
In accordance with S. 177 para. 2 (2) of the Federal
Regulations for Lawyers, the Federal Bar Association (Bundes-
rechtsanwaltskammer), in the Rules for Lawyers' Professional
Conduct, laid down the generally recognised rules concerning the
conduct of lawyers. S. 2 para. 1, first sentence, of these Rules
provides that it is contrary to the ethics of the profession if a
lawyer advertises his practice.
By a decision of 14 July 1987, the Federal Constitutional
Court changed its jurisprudence according to which the Rules for
Lawyers' Professional Conduct constituted a means of interpretation in
respect of S. 43 of the Federal Regulations for Lawyers. Until
enactment of rules of professional conduct in bye-laws, only a minimum
of professional duties indispensable for the proper functioning of the
administration of justice persisted (see 1 BvR 537/81, 11951/87,
Entscheidungssammlung des Bundesverfassungsgerichts (BVerfGE) Vol. 76,
p. 171). Thus the core of the prohibition on advertisement, i.e.
advertisement directly aimed at practice, or on misleading
advertisement, always undisputedly formed part of the duties of any
liberal profession (Federal Constitutional Court's decision of 14 July
1987, 12 BvR 162/79; BVerfGE 76, p. 196).
In case of violations of professional duties, S. 74 para. 1
of the Federal Regulations for Lawyers provides for a reprimand.
COMPLAINTS
The applicant complains under Article 10 para. 1 of the
Convention that the reprimand violated his right to freedom of
expression.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 12 December 1985 and
registered on 6 February 1989.
On 17 May 1990 the Commission decided to bring the application
to the notice of the respondent Government and to invite them to
submit written observations on its admissibility and merits.
The Government submitted observations on 3 September 1990.
The applicant made submissions in reply on 4 November 1990.
THE LAW
The applicant complains about the reprimand by the Stuttgart
Bar Association of 19 June 1984. He invokes Article 10 para. 1
(Art. 10-1) of the Convention which reads, insofar as relevant, as
follows:
"Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive
and impart information and ideas without interference by
public authority ..."
The Government consider that the applicant's circular letter
constituted advertising for his own business and might not, therefore,
come within the ambit of Article 10 (Art. 10) of the Convention. In
any way, the reprimand was justified under Article 10 para. 2
(Art. 10-2). The measure complained of had been based on S. 43 of the
Federal Regulations for Lawyers as specified in the Rules of
Professional Conduct which prohibited advertising for clients.
Furthermore, the reprimand had been necessary in a democratic society
for the protection of the rights of others, in particular of other
lawyers.
In this respect, the Government submit that also in other
Member States, lawyers are only entitled to moderate advertising, a
direct contact with possible clients being prohibited. The principles
concerning lawyers' professional conduct elaborated in the framework
of the European Communities and the international standards also prohibit
advertising. Taking into account that advertising was not at the core
of Article 10 para. 1 (Art. 10-1), the reprimand was not dispropritionate.
The applicant maintains that, with his circular letter, he had
not only intended to advertise his services, but also to fight the
German practice of prohibiting lawyers from advertising their
services. Moderate advertising by lawyers would help young lawyers or
small law firms to find clients.
The Commission considers that the official reprimand issued by
the Bar Association constituted an interference with the
applicant's freedom to impart information. The Commission has next
examined whether the measure complained of was justified under Article
10 para. 2 (Art. 10-2), namely whether it was prescribed by law, had a
legitimate aim under Article 10 para. 2 (Art. 10-2) and was necessary
in a democratic society for the aforesaid aim.
The legal basis for the reprimand against the applicant was
S. 74 in conjunction with S. 43 of the Federal Regulations for Lawyers,
and S. 2 of the Rules for Lawyers' Professional Conduct, which
emanated from the Federal Bar Association and were used to interpret
the general provision of S. 43 of the Federal Regulations for Lawyers.
According to recent case-law of the German Federal Constitutional
Court, the Rules for Lawyers' Professional Conduct were no longer
a valid means of interpretation, and only an undisputed minimum of
professional duties, including the prohibition on advertising directly
aimed at practice, persisted.
The Commission observes that under S. 43 of the Federal
Regulations for Lawyers, their professional duties were phrased in a
general way. However, frequently laws are framed in a manner that is
not absolutely precise, particularly in fields in which the situation
changes according to the prevailing views of society. The
interpretation and application of such legislation are inevitably
questions of practice (cf. Eur. Court H.R., Markt Intern Verlag GmbH
and Klaus Beermann judgment of 20 November 1989, Series A no. 165,
p. 18, para. 30 with further references).
In the present case, the prohibition on direct advertising
for practice was laid down in the Rules for Lawyers' Professional
Conduct and, according to the case-law of the Federal Constitutional
Court, formed part of the essence of professional duties of any
liberal profession. This practice was accessible and enabled lawyers
to regulate their professional conduct. The reprimand in question was
thus prescribed by law.
The probibition on advertising for practice pursued,
as stated in the decision of the Federal Constitutional Court of
11 October 1985, the interest of a proper administration of justice.
The Bar Association and the Disciplinary Court for Lawyers, in
their respective decisions of 19 June and 8 November 1984 as well as
24 July 1985, referred to the protection of young lawyers vis-à-vis
established law firms and the interests of possible clients.
The Commission finds that the prohibition on advertising
serves the purpose of protecting the rights of others, namely of the
public in general and of the members of the profession as to the
proper functioning of the services rendered by lawyers.
As regards the necessity of interfering with the applicant's
right to freedom of expression, the Commission recalls that in Article
10 para. 2 (Art. 10-2) the adjective "necessary" implies the existence
of a "pressing social need". The Contracting States have a certain
margin of appreciation in assessing whether such a need exists, but
this goes hand in hand with a European supervision which is more or
less extensive depending upon the circumstances (cf. Eur. Court
H.R., Barthold judgment of 25 March 1985, Series A no. 90, pp. 24-25,
para. 55; Markt Intern Verlag GmbH and Klaus Beermann judgment, op.
cit., pp. 19-20, para. 33).
In the present case, the Bar Association issued an
official reprimand in view of a circular letter in which the
applicant, on his own initiative, had advertised his services as a
lawyer to several collection agencies. This disciplinary measure was
confirmed in ensuing proceedings before German courts.
The Commission observes that freedom of expression holds a
prominent place in a democratic society. As regards the matters of
advertising and publicity in the liberal professions, restrictions on
the freedom of expression should not discourage members from
contributing to a public debate on topics affecting the life of the
community. Prohibiting a veterinary surgeon from making declarations in
the context of a genuine problem of absence of a night service,
because these statements have the secondary effect of giving publicity
to his own clinic, is not consonent with the freedom of expression
(cf. Eur. Court H.R., Barthold judgment, op. cit., p. 26, para. 58).
The Commission finds that the applicant, in his circular
letter, asserted first a personal relation to the addressee, he then
indicated his qualifications and advertised directly his services,
offering to be tested by new clients. There is nothing to indicate
that the contents of the applicant's circular letter was related to
any public discussion or intended to inform the public or the
addressees of the letter about any general problem. From the text and
the circumstances of the applicant's letter, the advertising effect
thus appears as his only motive.
In these circumstances, the Commission, taking into account, on
the one hand, the applicant's interest in advertising his services on
his own accord to unknown persons, and, on the other hand, the rights
of others in a proper functioning of the profession of lawyers as
well as the very light nature of the sanction, finds that the
reprimand complained of is not disproportionate. The Commission
therefore considers that the interference in question can be regarded
as necessary in a democratic society for the protection of the rights
of others.
It follows that the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)
Full & Egal Universal Law Academy