The end of the world as they knew it: should former judges be denied admission to the bar after the transition to democracy?

Abstract

Societies which are in transition from one political system to an other, for example from Dictatorship to Democracy, are often faced with the problem of which role legal professionals who played a political role in the old regime can play in the new system. On one hand will the society require lawyers, on the other hand will it often be necessary to limit the role of those who played a role in the old system in the new system. This article will deal with the requirements for the admission to the bar in Germany. Particular emphasis will be given to prior convictions and good morals. In a second step, we will look at the effects of the German reunification in 1990 on the legal profession in those parts of Germany which used to be under Socialist rule. The reunification led to an influx of lawyers from Western Germany to the East but there was a need for lawyers which required that lawyers trained in the former East Germany had to find a way into the legal system of reunited Germany. Many of those who worked in legal professions in the former East Germany, though, were closely related to the former regime. A key question is how a society in transition can make use of their expertise without condoning the crimes of the past. Or does the experience of a lawyer gained under communism not count as expertise in a democratic legal system? Apparently it cannot be completely useless because there are some skills that lawyers around the world have to master in any case. Yet, under German law, attorneys are not merely commercial actors but serve the judicial system as a whole. This requires attorneys to be willing to defend the constitutional order at all times. There might be doubts whether lawyers who served the Communist regime in East Germany can guarantee that they will defend the constitutional order of the Federal Republic. While this limits who can become an attorney, the freedom of profession in turn limits the state’s ability to limit access to the legal profession. Based on a case study involving a former East German judge who sought to be admitted to the bar in Germany, we will look at the balance between these diverse interests.