"Non-Germans" Under the Third Reich (153 page)

52.
Schlegelberger’s testimony before American Military Court 3 on June 27, 1947, Nuremberg Trials 3, Prot. d), 4315 ff., 4347 ff., in
BA All. Proz.
1, XVII, A 58.

53.
Instruction of the Reich Ministry of Justice,
DJ
(1938): 1670.

54.
Ostler,
Die deutschen Rechtsanwälte
, 266.

55.
Instruction of the Reich Ministry of Justice,
DJ
(1938): 1974 (
JW
[1939]: 24).

56.
Ostler,
Die deutschen Rechtsanwälte
, 266 ff., with examples.

57.
See ibid., 292, with examples, based on the statements of former legal advisers; but Ostler also claims that only a few legal advisers survived.

58.
Noack, “Die Entjudung der deutschen Anwaltschaft.”

59.
In this connection see the detailed article by the director of the
Gau
Legal Office of the NSDAP, Berlin, H. Steffens, “Die rechtliche Vertretung der Juden im Reich” (1942).

60.
Gürtner, “Richter und Rechtsanwalt im neuen Staat” (1934), 372. See T. Kelfisch, “Die Stellung des Strafverteidigers im Licht der heutigen Rechtsanschauung,”
JW
(1935): 3350 ff.; the author deplores the lack of the “necessary understanding and trust” on the part of the justice apparatus toward the defense counsel and the restriction of his rights (surveillance of conversations with prisoners, no access to archives in the preparatory procedure).

61.
Ostler,
Die deutschen Rechtsanwälte
, 277; see also the case of the protection of the interests of the widow of the president of Katholische Aktion, Dr. Klausener, murdered by the Gestapo on June 30, 1934, by the attorney Pünder before the State Court of Appeals, Berlin (288). Pünder was taken into protective custody, threatened several times with death, and finally released only through the intervention of the Reich minister of justice, Gürtner; for more on Pünder, see also
NJW
(1970): 1764.

62.
See the example given in Fritsche, “Was ist ein Eingriff in die Berufsaufgaben eines Rechtsanwalts?” (1937): at a small civil court a local attorney was commissioned to represent the claims of a Jewish businessman from the Weimar period against the municipality. The Bürgermeister and the local section head demanded that the attorney drop the case, threatening that otherwise he “was finished in society and as a man.” Complaints by the attorney to the NSRB were unsuccessful: he had “acted with complete disregard to his duty”; the rule from the system period, that “whatever is not explicitly forbidden, is permitted,” no longer obtained.

63.
Steffens, “Die rechtliche Vertretung der Juden im Reich.”

64.
By a decision of the Reich Disciplinary Court of June 6, 1944 (FD 9/44),
DR
1945, 25), an attorney was punished for having accepted the request from a non-Jew to represent the interests of Jews who were to be “evacuated.” It was held that this was permissible only with the authorization of the Chamber of Attorneys or the Gestapo.

65.
Disciplinary senate at the Reich Supreme Court of June 25–26, 1943 (FD/71/43), January 27, 1944 (FD/112/43), and October 20, 1943 (FD/85/43) (“
Mischlinge
have a duty to be especially prudent in racial policy proceedings”), quoted in Neubert, “Anwaltliche Ehrenrechtsprechung in der Spruchpraxis des Dienststrafsenats” (1944), 426. By the decree of March 1, 1943 (
RGBl.
I, 123), the disciplinary code was suspended for the duration of the war and the disciplinary courts transferred to the
Oberlandesgericht
and the disciplinary senate to the Reich Supreme Court; from the adjudications of the disciplinary senate cf. also
DR
(A) (1944): 523 f., 525, 653 f., overview in Neubert, “Anwaltliche Ehrenrechtsprechung in der Spruchpraxis des Dienststrafsenats.”

66.
Reich Minister of Justice Gürtner, League of National Socialist German Jurists, and
Reichsfachgruppe Rechtsanwälte
, “Aus der Arbeit für das neue deutsche Volksrecht,”
JW
(1934): 823 f.

67.
For the attorneys’ position, see Noack, “Die Stellung des Anwalts sowie der freien Berufe im Staat” (1933).

68.
Quoted in Ostler,
Die deutschen Rechtsanwälte
, 279.

69.
For the suspension of attorneys by the court of honor for political reasons and the difficulties of defense in political criminal actions in general, see ibid., 278 f.

70.
EGHE 32, 160.

71.
Steffens, “Die rechtliche Vertretung der Juden im Reich,” 10.

72.
Instructions of August 16 and October 8, 1934, by the deputy Führer and of November 8, 1934, by the Reichsrechtsamt (Reich Legal Office) of the NSDAP, quoted by Steffens, ibid.

73.
Instructions of September 2, 1935, by the
Reichsrechtsführer
, quoted in ibid., 9; see also
JW
(1934): 2961 and (1935): 2544, 2707; Sülwald, “Grundsätzliches Verbot der Vertretung von Juden” (1939).

74.
RGBl.
I, 1403.

75.
Steffens, “Die rechtliche Vertretung der Juden im Reich,” 10.

76.
Instruction 204/38 in
Verfügungen
, 2:405, also quoted by Sülwald, “Grundsätzliches Verbot der Vertretung von Juden.” Instruction XXI-1/39, quoted by Sülwald on p. 85.

77.
Announcement of December 31, 1938, by the president of the Reich Chamber of Attorneys,
JW
(1939): 274; see also Echthölter, “Das öffentliche Recht im Nationalsozialismus,” 224. For attorneys who were members of the Party, sections of it, and associated organizations, authorization was granted by the NSDAP Reich Legal Office, which had basically passed its authority to the Gauleiter (
Gau
legislation office), and in district court cases to the
Kreisleiter
(Steffens, “Die rechtliche Vertretung der Juden im Reich,” 12), and for all other attorneys by the president of the local Chamber of Attorneys. An authorization was also always required for representation of underage
Mischlinge
of the first degree or of the Aryan wives of Jews, since in such cases the interests of the client’s Jewish relatives were generally also affected. Representation of Jewish
Mischlinge
was not expressly forbidden, but attorneys who were members of the Party were expected to refuse such cases since this was “not generally compatible with the honor of Party members.” In the event of infringement, there was the threat of legal action in the Party court or the court of honor. In such cases “particular discretion” was also expected of attorneys who were not Party members (11).

78.
Steffens, “Die rechtliche Vertretung der Juden im Reich,” 13.

79.
Instructions of the deputy Führer, December 19, 1938, and of the head of the NSDAP Reich Legal Office, January 2, 1939, quoted by Sülwald, “Grundsätzliches Verbot der Vertretung von Juden,” 84 ff.

80.
Steffens, “Die rechtliche Vertretung der Juden im Reich,” 11.

81.
For the individual conditions of authorization, see ibid., 10 ff.

82.
Ibid., 12.

83.
Ibid., 10, with examples (including “activity on behalf of an authority”: administration of assets of absentees, trusteeships, liquidations, administration of Jewish real estate—particularly their homes—since “Jewish wealth is but a part of the wealth of the German people”).

84.
Here too, authorization needed careful consideration, since a successful defense would lead to the incorportion of
Judenstämmlinge
(people of Jewish descent). Representation should immediately be dropped if a positive outcome no longer seemed likely (ibid.).

85.
Ibid., with examples.

86.
For the concept of political reliability, see ibid., 12.

87.
Ibid.

88.
Ibid., for the
Gauleitung
Berlin, which “always acted without clemency” in such cases.

89.
Ibid.

90.
“Depending on the circumstances … the support of the Gestapo will be called upon … in particularly serious cases” (ibid.).

91.
Ibid., 13, without further details of the relevant instruction.

92.
RGBl.
I, 222.

93.
Decree on the Activity of Dentists and Dental Technicians in Health Insurance, June 2, 1933 (
RGBl.
I, 350).

94.
Decree on the Admission of Doctors, Dentists, and Dental Technicians to Health Insurance Activity, November 20, 1933 (
RGBl.
I, 983). Decree on the Admission of Doctors to Health Insurance Activity, May 17, 1934 (
RGBl.
I, 399). Third Decree on the Admission of Dentists and Dental Technicians to Health Insurance Activity, February 13, 1935 (
RGBl.
I, 192), brought into line with the arrangement for doctors (decree of May 17, 1934 [
RGBl.
I 399]) by the decree of May 9, 1935 (
RGBl.
I, 594).

95.
Decree of February 13, 1935 (
RGBl.
I, 192); in the event of marriage to a non-Aryan, the license was withdrawn.

96.
For dentists and dental technicians, see the decree of February 13, 1935 (
RGBl.
I, 192); excombatants had to have worked with the health fund for at least one year. For doctors, see the decree of May 17, 1934 (
RGBl.
I, 399), according to which doctors who were non-Aryan or whose wives were non-Aryan were admitted if they were ex-combatants (with at least one year’s service on the front or severe war injury).

97.
RGBl.
I, 1524.

98.
How such cases were dealt with is illustrated by that of the dismissal of Dr. K., the deputy chief physician of the Municipal Hospital in Rastatt, which in 1975 gave rise to an administrative lawsuit for compensation payments (VG Karlsruhe, AZ VII 93/75). On the basis of his contract with the city of September 15, 1929, Dr. K. was head of the Department of Internal Medicine and appointed deputy chief physician. Notice was six months in advance, at six month intervals; after three years, notice could be given only on serious grounds. The existence of such grounds was a matter for a court of arbitration, to which each party nominated two jurors, the chairman being chosen from among the judges by the presiding judge of the
Landgericht
Karlsruhe. Dr. K. was dismissed on April 1, 1933—apparently without formal written notice—with maintenance of his salary until July 1, 1933. The dismissal was undertaken at the insistence of the NSDAP, whereas the Bürgermeister proposed submitting the matter to the court of arbitration. This proposal was rejected by the NSDAP at the request of Dr. K.’s former attorney, since “no legal measures” were necessary. In May 1933 discussions took place between Dr. K. and an attorney of the Rastatt town council, who was a notary and
simultaneously
an NSDAP representative, culminating in Dr. K.’s statement of May 23. The attorney had submitted this prepared statement to Dr. K. with the demand that he either sign it or “go to the concentration camp.” Dr. K. signed the statement (“considering the acute economic situation of the town and in the spirit of the patriotic movement of our time, I renounce all claims to my service contract … of September 15, 1929, specifically to my monthly salary as of July 1”). After his dismissal he worked as a private physician in Rastatt. In 1934 he emigrated to the USA, where he died in 1965. [A decision to grant Dr. K. compensation payments in 1952 was opposed by the municipality of Rastatt on the grounds that his claim was not justified because he had explicitly renounced his salary—Author.]

99.
RArbG, in Dersch, Hueck, Mansfeld, Mende, Nipperdey, and Volkmar, eds.,
Entscheidungen des Reichsarbeitsgerichts und des Reichsehrengerichtshofs der Landesarbeitsgerichte, Arbeitsgerichte und Ehrengerichte
(ARS) (1935–36), 33:3.

100.
Schäfer, “Anspruch auf Ruhegeld im Arbeitsrecht” (1939), 37.

101.
Decree of September 8, 1937 (
RGBl.
I, 973). Fifth Decree on Admission of Dentists, January 12, 1938 (
RGBl.
I, 29).

102.
Fourth Decree to the Reich Citizenship Law, July 25, 1938, secs. 1, 3 (
RGBl.
I, 969), and Eighth Decree to the Reich Citizenship Law, January 17, 1939, sec. 1 (
RGBl.
I, 47).

103.
Fourth Decree to the Reich Citizenship Law, July 25, 1938, sec. 5 (
RGBl.
I, 969).

104.
Jews were permitted only to treat other Jews or work in Jewish institutions, as were Jewish paramedical staff (Eighth Decree to the Reich Citizenship Law, January 17, 1939, sec. 2, par. 2,
RGBl.
I, 47).

105.
First Decree on Professional Practice of Medicine, September 28, 1938 (
RGBl.
I, 1310).

106.
RGBl.
I, 1391.

107.
RGBl.
I, 1855.

108.
Reich Ministry of the Interior decree of October 15, 1936,
MinbliV
(1936): 1330, announced in the Reich Ministry of the Interior General Decree of October 30, 1936 (
DJ
[1936]: 167 ff.). The decree also applied to all former administrative employees and the survivors of administrative employees, but not to Jewish officials in retirement.

109.
RGBl.
I, 1433, and announcement of the new version of sec. 3, par. 2, no. 5, of the Reich Physicians Decree of June 12, 1939 (
RGBl.
I, 1014).
RGBl.
I, 347.

110.
Fourth Decree to the Reich Citizenship Law, July 25, 1938, sec. 3, par. 1; sec. 4 (
RGBl.
I, 969—Jewish physicians); Eighth Decree to the Reich Citizenship Law, January 17, 1939, sec. 2, pars. 1, 3; sec. 3, par. 2 (
RGBl.
I, 47—Jewish dentists, dental technicians, veterinary surgeons).