"Non-Germans" Under the Third Reich (33 page)

In addition, as early as 1935 the Reich Ministry of Justice decreed that no public defense or legal aid cases brought in forma pauperis were to be assigned to Jewish attorneys, on the grounds that legal representation in public defense cases was similar to public office, from which Jews were excluded.
³⁷
Suits brought on behalf of attorneys thus excluded remained unsuccessful.
³⁸
Jews were also banned from other public occupations; for instance, the Reich Ministry of Justice forbade the appointment of Jews as administrators in cases of bankruptcy, financial settlement, or receivership.
³⁹
Jews were also no longer permitted to be appointed as guardians, curators, or conservators.
⁴⁰
And even more harassment was in store: Jewish attorneys were excluded from representing the principal heir courts set up by municipal courts in so-called hereditary farm disputes under the Reich Hereditary Farm Law. Written statements prepared by Jews were to be dismissed, even when they were signed by the Aryan client himself. When Jewish attorneys went on vacation, only Jewish colleagues could substitute for them, a requirement that led to the greatest difficulty in smaller towns and cities, where there were few or no other Jewish attorneys.
⁴¹
Aryan clients of Jewish attorneys were scared off by threats, coercion, and blackmail on the part of administrative offices.
⁴²

Particularly in the realm of legislation governing attorneys, it is clear that the regulation of Jewish attorneys under special law was not a closed circuit but merely provided the foundation for new complications directed at all members of the bar; indeed, this intention was openly proclaimed.
⁴³
Accordingly, in the years after 1933 numerous new regulations were issued in the area of attorney legislation, all of which aimed at a “complete reordering” of the profession (the rescission of licensing entitlement,
⁴⁴
the introduction of need testing [by way of the National Code on Attorneys-at-Law of 1936; this was a means for the state to control the lawyers by granting or refusing the license],
⁴⁵
organizational restructuring, measures taken to relieve the overcrowding of the bar by expanding the professional domain of the attorney,
⁴⁶
etc.). In 1938 new special legislative provisions were issued against Jews as, in the course of implementing the Nuremberg Laws, even those Jewish attorneys who until then had been allowed to continue to practice under the exemptions granted in the law of April 7, 1933 (so-called
Altjuden
, that is, frontline soldiers and attorneys licensed prior to the cut-off date), were eliminated. The Fifth Decree to the Reich Citizenship Law, dated September 27, 1938,
⁴⁷
stipulated that the withdrawal of licenses from all Jewish attorneys was
mandatory
from December 1, 1938, onward; this affected an extremely high percentage of all members of the bar, no less than 16 percent.
⁴⁸
Under section 1, number 1, of the decree, the names of the disbarred attorneys (on the so-called dead lists) were to be expunged from the register of the bar no later than December 31, 1938.
⁴⁹

Disbarred attorneys were prohibited from using the professional title
attorney
and forbidden to provide legal counsel under the Abuse of Legal Counsel Law of December 13, 1935.
⁵⁰
With the elimination of Jewish attorneys, the contention of Hans Frank that “National Socialist laws [could] never be rightly applied by a Jewish judge or a Jewish attorney-at-law” was fulfilled, so that “the German attorney [could] once again … with pride … call himself attorney-at-law.”
⁵¹
Professional activity on the part of Jewish colleagues was permitted only on behalf of Jewish clients, and then only in the capacity of “legal advisers”—an artifice of Franz Schlegelberger,
⁵²
state secretary in the Reich Ministry of Justice—who were to be conditionally licensed by the judicial administration.

Petitions for licensing as a legal adviser were to be directed to the presiding judge of the appellate court, who then consulted with the president of the local bar association and the state police, as well as the board of the district court for which licensing was desired. The decision whether or not to license was up to the Reich minister of justice. Apart from being frontline soldiers or persons wounded in the World War, applicants—who as far as possible were to be drawn from the ranks of those frontline soldiers eliminated under section 1 of the Fifth Decree
⁵³
—could also be given special consideration if they were married to “Aryan women.”
⁵⁴
The legal adviser was subject to supervision by the presiding judge of the responsible district court. The places where consultants could establish themselves were limited, as were their numbers, and special regulations were issued for the new professional title and the attorney’s shingle.
⁵⁵

About the fate of the legal advisers hardly anything is known; but the assumption is justified that, beginning in 1938, at the start of harsher anti-Jewish measures, the number of Jews seeking legal counsel rapidly diminished and that the number of Jewish legal advisers sank commensurately. Nevertheless, some respected Jewish attorneys remained in Germany.
⁵⁶
Whether or not they were spared deportation on account of their profession’s formal standing—in contrast to the Jewish judges who were forced to retire and the Jewish attorneys who lost their licenses and were included in the deportations—is something that is yet to be determined.
⁵⁷

In view of the prevailing opinion that German legal affairs were “poisoned”
⁵⁸
by any dealings with Jews, representation of Jews by German attorneys was also restricted, on the segregationist principle that reserved Aryan attorneys for Aryans only, legal advisers exclusively for Jews. However, legislation to bring about a general ban on representation of Jews by Aryan attorneys, corresponding to the strict prohibition on representation of Aryans by Jews, was never instituted—primarily for economic reasons. Such a prohibition was, as National Socialist jurists later explained, “undesirable” because otherwise Jewish attorneys would have achieved a “monopoly position” and a preponderance over German attorneys.
⁵⁹
Despite all this, however, a de facto ban on such representation was instituted from the very beginning by means of special legislative practices and internal directives.

Discrimination against the attorneys of Jewish clients was a daily occurrence right from the outset. Fine-sounding phrases from official quarters about the freedom of the attorney meant little, since they were entirely unrealistic;
⁶⁰
in actuality, such attorneys could look forward to the greatest difficulties. Just as in cases of politically troublesome attorneys, pressure was generally exerted on their clients.
⁶¹
Just as in cases in which an Aryan was represented by a Jewish attorney, care was taken that the latter (licensed with exceptional permission) received no more commissions, so, conversely, Aryan attorneys were also plagued with massive threats if they took on the cases of Jewish clients. In so doing, the NSRB (the National Socialist Jurists’ League) made explicit reference to the fact that the principle “What is not expressly forbidden is permitted” from the “system period” (that is, from the Weimar Republic) was now no longer in force. Even in the absence of a lawful ban, any legal representation having to do with the protection of Jewish interests was proscribed. An attorney engaging in such was “altogether finished, both socially and as a person.”
⁶²

According to rulings handed down by the disciplinary courts, taking on Jewish cases was, in certain instances, even considered a professional misdemeanor (“objectionable frequency of Jewish cases”). Later on this was also the case for representation of Jewish interests without explicit permission from the bar association, as mandated under a directive issued December 31, 1938, by the president of the Reich Bar Association.
⁶³
The same was true of those who would represent the interests of Jews facing evacuation.
⁶⁴
The representation of Jewish interests by those Jewish
Mischlinge
who remained in office was also a professional offense that could and did lead to expulsion from the bar.
⁶⁵

Naturally, Jewish attorneys faced considerable impediments to the daily practice of their profession, starting with the general duties imposed on attorneys, which (particularly in the realm of criminal defense) were made a great deal more severe. Of course, the new, stricter rules were to be applied with particular vehemence to Jewish attorneys.

Apart from Party and professional organizations, the Reich Ministry of Justice also continuously drummed it into the attorneys that the position of counsel for the defense was now another one altogether. Limits were now imposed upon the attorney in his defense strategy, limits that were set for the good of the
Volk
.
⁶⁶
The attorney was the advocate of the law, not of his client; the latter notion originated with “the Jewish defense attorney,” who was an extreme devotee of such individualistic ideas.
⁶⁷
The Reich Ministry of Justice made this perfectly clear in an injunction, dated January 19, 1943, bemoaning the “increasing violations by attorneys of their professional obligations”: “Rather than contributing, as organs of judicial administration, to determining the truth and reaching a verdict in full consciousness of their responsibilities, these defense attorneys take the position of accessories to the lawbreaker.”
⁶⁸
It goes without saying that Jewish defense counsel in particular were subject to the strongest imaginable pressures and were in fact hardly permitted to appear in criminal proceedings (this was certainly true for political criminal cases); but the same was also true of German attorneys representing Jews. Like anyone representing politically unpopular offenders, they had to face enormous consequences.
⁶⁹
Even a note to a Jewish client reporting that the attorney was being attacked for taking on the defense was grounds for expulsion from the bar.
⁷⁰

As usual, these discriminatory policies were sanctioned in practice by means of various internal directives, either simultaneously or after the fact, aimed at placing considerable restrictions on the attorney’s freedom of representation. The Reich Ministry of Justice refrained from issuing instructions of its own, preferring to leave such questions to the Party leadership and the professional organization (the Reich Bar Association), no doubt because it shared the opinion of the Party leadership that the issue of legal representation of Jews was “a political question” for which the “Party alone was responsible.”
⁷¹
Thus, as early as 1934 the NSDAP was able to issue a ban on representation of Jews by any “ethnic comrades and jurists” who were
Party members
;
⁷²
this was expanded in 1935 to include all
officeholders
in the NSRB and the directors of all legal administration offices of the NSRB. The remaining members of the NSRB were obligated to exercise “the greatest restraint” in taking on the cases of Jewish clients.
⁷³
Only after the elimination of the last remaining Jewish attorneys under the Fifth Decree to the Reich Citizenship Law, dated September 27, 1938,
⁷⁴
and in the wake of the anti-Jewish pogroms in November 1938 was there a noticeable departure from the principle of prohibiting or preventing the representation of Jewish clients at all costs. In the course of the state-sponsored plundering of Jewish property that began at this time, there arose a plethora of legal difficulties (the appointment of financial
curatores absentis
, trusteeships, liquidations, etc.) that had to be dealt with. All of a sudden, new regulations became necessary, for which—since it was again a matter of “purely political measures”—the Party alone was responsible, not the judiciary. Now it became downright imperative that “German jurists,” and thoroughly politically reliable ones at that, take on the representation of Jews, in order to avoid “illicit transfers of assets, cover-ups,” etc.

With the exception of such cases, however, representation of Jewish interests was now made impossible in all matters of consequence. In the literature we find bitter complaints that the promulgation of the Fifth Decree to the Reich Citizenship Law, dated September 27, 1938, forced many Jews to go to German attorneys without any justification, because the Jewish legal advisers were widely seen as no longer being “adequate legal representatives”—although “German authorities were, perhaps to too great an extent, entirely objective in all cases.”
⁷⁵
This had to change. The means for gaining complete control over the representation of Jewish interests was a fundamental ban, with a proviso for granting exceptions. A directive from the deputy of the Führer dated December 19, 1938, and one from the director of the Reich Legal Office of the NSDAP, Frank, dated January 2, 1939,
⁷⁶
expanded the ban on representing Jews to the members of the Party’s affiliated organizations (the SS, the SA) and its auxiliary associations (such as the NSV, the NSRB, and the German Labor Front [DAF]). To rule out any potential advantages for attorneys outside the Nazi organizations, the Reich Bar Association followed suit on December 31, 1938, and extended this ban to all attorneys-at-law, including those “privileged
Mischlinge
” who remained licensed: there was “now only one sort of attorney, all of whom [were] in equal measure bound in fidelity to the Führer”; it was “the professional obligation of all attorneys to hold themselves aloof from Jews and Jewish enterprises” in their professional activity; representation of Jews was permitted only with special authorization.
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If authorization was denied, there could be no legal remedy; appeals to the supervisory authorities were without suspensive effect.
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Not affected by the ban on representation were German civil servants, notaries, and certified public accountants, to the extent that they were engaged in official business, as well as defense counsel before the special court in cases involving foul play and before the People’s Court.
⁷⁹
However, the fundamental ban on representation of non-Aryan persons was not limited exclusively to Jews. It also affected Gypsies and Gypsy
Mischlinge
. The representation of Poles was not subject to formal prohibition, yet here, too, attorneys were expected to “carefully weigh the interests of the
Volksgemeinschaft
and exercise maximum discretion.”
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