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2018-11-06

Legal advice and assistance

The advice and assistance may be provided where it is required in respect of the application of German law to any circumstances, whether they involve civil or legal matters. Normally the kind of advice or assistance in question concerns such matters as giving general advice, writing letters, negotiating settlements, drafting wills, agreements or other documents and advising upon the desirability of bringing or defending legal proceedings.
This will not usually include representation in actual legal proceedings because such representation is supplied by lawyers. The lawyer who provides the advice or assistance will, at least in the first instance, normally be a solicitor. The German law provides that the lawyers may direct that advice and assistance in relation to matters concerning foreign law may be made available. The rule that the provision of advice and assistance does not extend to representation in litigation is, however, subject to an exception. Assistance by way of representation may be provided in relation to certain specific kinds of proceedings. At present, however, these only include domestic proceedings before magistrates' courts and certain specified tribunals.

Lawyer's advice

A person who seeks advice and assistance must, in the first place, consult a solicitor or go to a lawyer which will direct him to one. It is the first duty of the solicitor to require him to complete a form setting out details of his income and capital. The purpose of this is to enable the solicitor to ascertain whether his or her resources are such as to make the applicant eligible for legal litigation under the scheme. The regulations regarding eligibility are complicated, but the gist of the matter is that in order for the applicant to be eligible his resources must not exceed certain amounts prescribed by regulation from time to time.
Moreover if the resources do not exceed these amounts the legal litigation will not necessarily be entirely free because, unless the resources fall below a prescribed minimum amount, contribution by the applicant may be exacted. There is an important further limitation upon the right to advice and assistance; namely, that the solicitor is required to estimate the costs which are likely to be incurred in giving the advice and assistance and if this estimate exceeds a prescribed amount the aid cannot be provided. The solicitor himself has a first charge for his costs on any money or property recovered by the applicant as the result of advice and assistance given. This he may exercise if he has not been remunerated by any contribution the applicant has made. If his costs have not been met by contribution or the exercise of the charge they will be defrayed from the fund.
The scheme has now been for some years and those who operate it claim that it has been a success. Its limitations, however, are obvious; both because the prescribed limits of eligibility are low and because the services must not exceed a very low cost. Needless to say these defects have often been criticized; but there must always be a limit to what can be done at the public's expense. It is regretted that no monetary figures have been given. That is because the prescribed limits are altered from time to time and any figures might be seriously misleading.
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