In their daily practice, criminal defense attorneys who work in a law firm consisting of more than three colleagues and whose power of attorney bears the full letterhead of the law firm often read court notices such as "(...)" (...)" may be followed by a clarification of the client relationship. Section 137 I sentence 2 and section 146a of the German Code of Criminal Procedure are assumed to be known." Such references are often linked to the "reference" that otherwise access to records would not be granted or an objection would be rejected.
The content of the provision on the question of the maximum number of defense attorneys is, however, initially unambiguous. Section 137 I sentence 2 StPO: "The number of elected defense attorneys may not exceed three". The purpose of this restriction on the number of defense attorneys is to prevent abuse of the right to legal counsel by delaying or frustrating proceedings through the involvement of a large number of defense attorneys.
I. Problem
It would be an unproblematic and recognizable violation of § 137 I S.2 StPO as soon as more than three defense attorneys would appear before the court with their client and each of the attorneys wanted to exercise the procedural rights of a defense attorney. But how does this regulation apply in purely written communication between the court, the public prosecutor's office and the defense counsel? What requirements can the court/public prosecutor's office place on the power of attorney for the defense counsel/the writ of appointment and demand of the attorney on the basis of this standard?
Possible options include crossing out all but a maximum of three names in the header of the power of attorney or letterhead, or underlining a maximum of three names to emphasize them. It would also be possible to keep separate power of attorney forms for each attorney in the firm or to specifically limit the power of attorney to one of three attorneys in each order. However, since all of the above-mentioned methods involve a not inconsiderable amount of work and are not conducive to an effective office workflow, the question arises as to whether the use of the law firm's letterhead (more than three lawyers) in the written order and/or on the power of attorney, automatically constitutes a violation of § 137 I S. 2 StPO and the appointment modalities that have become established in regional practice are necessary at all.
The Federal Constitutional Court's decision, which remains convincing, states in this regard that "(...) the fact that a power of attorney for criminal proceedings is issued to several lawyers does not yet mean that each of the lawyers has been 'appointed as defense counsel', i.e. has acquired the position of defense counsel. (...) The granting of a power of attorney for criminal proceedings to several lawyers is not in itself sufficient to establish or prove that the lawyers named therein are defense lawyers. The power of attorney only provides information about whom the defendant has asked to take over the defense; it contains a unilateral declaration of the defendant's choice of defense counsel. However, in order to justify the appointment of a defense lawyer, it is also necessary that the chosen lawyer accepts the appointment as defense lawyer. (...) It is not clear from the power of attorney that this has happened. Rather, the acceptance of the appointment is usually expressed in the lawyer "ordering" himself as the defendant's defense lawyer in the proceedings, whether by express declaration or or by conclusive behavior – appoints himself as the defendant's counsel; only then does he assume the role of counsel intended for him, including the procedural rights and duties associated with it, which are assigned to him by criminal procedural law. (...)"
It follows that the fact that the power of attorney is not limited to a maximum of three members of the law firm, for example by deleting the names or in any other way, does not prove that all members of the law firm have appointed themselves as defense counsel. On the other hand, no more than three lawyers may have accepted the election by express declaration or conclusive behavior. Applied to the case of using the full partnership letterhead on the power of attorney for criminal proceedings, this means that a deletion of the superfluous attorneys, an explicitly declared restriction of the power of attorney or otherrestriction of the power of attorney or other regionally established practices are not required, as long as it can be inferred explicitly or implicitly from the statement of appointment who, as a natural person, has taken over the defense.
II. Interpretation of the order declaration
How can such an implied appointment be made in practice and what does it require? As a rule, the defense counsel acts for the accused in a manner recognizable to the authorities by addressing the court or the public prosecutor in writing, e.g. to appoint himself and request access to the case file. Assuming that the letterhead contains more than three lawyers and only the signature allows the possibility of assigning it to a specific member of the firm, it cannot be assumed that the defense counsel has been appointed in a sufficiently specific manner if the signature is illegible. If, on the other hand, the signature is legible, then at least an implied appointment by the signatory must be assumed. Likewise, a sufficiently concretizable order is to be assumed if an assignment is made possible by further information in the written pleading, e.g. by indicating the secretariat of a specific law firm member named or if the name of the signatory in typewritten form is attached to the signature.
It turns out that due to the multitude of possible order references and the fact that the standard of § 137 I sentence 2 StPO is sufficient for the order to be capable of interpretation, a broad understanding of the term "implied concretizable order" will have to be assumed.
III. Pluralis majestatis? Or violation of § 137 StPO?
The question is also raised as to whether the wording chosen in a written submission to the court can be used to infer a specific scope of appointment. If the defense counsel writes in the first person singular "I...", then it can be concluded from this that only he alone wants to be regarded as the defense counsel. However, it can already be problematic if he writes "we..." in the first person plural in a letter whose letterhead contains more than three names. It is clear here that the defense counsel cannot rely on the fact that only he alone is regarded as the appointed defense counsel. However, the use of "we" does not automatically mean that the maximum number of defense counsel as per § 137 I p. 2 StPO has been exceeded. It is clear that the law firm, as an association of persons, cannot be a "defense counsel". It is also undisputed that the use of the word "we" does not imply that all the individual lawyers in the firm have been appointed as defense counsel. However, the use of the wording "we..." makes it more difficult to meet the requirement, already mentioned above, that the appointment of a defense lawyer be capable of interpretation. Without clear other indications as to who, as a natural person, has taken over the defense, a violation of § 137 I S. 2 StPO would be assumed.
In this context, it is also necessary to ask whether the assumption of only individual defense actions is already sufficient to legally establish a defense position. This is to be objected to, since a single action, such as a simple letter with which the transferred files are returned, cannot constitute the appointment as a criminal defense attorney. The Higher Regional Court of Frankfurt is therefore correct when it says that if a lawyer undertakes individual acts of defense for the defendant defended by his partner, he has not thereby alone accepted the defense of the defendant. At least several defense actions are required, which together indicate a specific order and defense notice, or a clear statement in a letter, such as that the power of attorney is restricted or extended to another lawyer.
IV. Determining the number of defense counsel
Another problem that often arises in practice is the question of calculating the maximum of three defense attorneys and their relationship to the sub-attorney or trainee. Section 137 I sentence 2 of the German Code of Criminal Procedure (StPO) is to be understood in such a way that the number of three defense attorneys may not be exceeded even by sub-authorization. In this context, however, a distinction must be made as to the purpose for which the sub-authorization has been granted, i.e. it must be differentiated whether the sub-authorized attorney or the trainee lawyer is to act alongside or in place of one of the main attorneys. In the calculation, the sub-attorney only counts if he acts alongside the main attorney and not in his place. Thus, for example, a trainee lawyer who attends a hearing in sub-authority is therefore not included in the calculation. He represents the Lawyer who has authorized him only in the appointment, but does not work alongside him. This interpretation corresponds to the purpose of the law, since § 137 I S.2 StPO wants to prevent an abuse of the rights of defense for delaying the proceedings and obstructing the proceedings, which is possible through the involvement of a large number of defense lawyers, for all stages of the proceedings. Since the sub-attorney derives his procedural rights from those of the main attorney, there is no reason to fear that he will abuse the rights of the defense attorney in his position. An extension of the calculation of the number of defense attorneys to him is therefore not to be regarded as covered by the purpose of the norm and is to be rejected.
At least as long as he properly derives his procedural rights from the defense rights of the represented attorney, he cannot be rejected according to the criteria of § 137 I S.2 StPO. However, as soon as he steps out of the position behind the represented lawyer and into his own position as a defense lawyer, for example, by a corresponding declaration by the defendant in the main hearing and his declared acceptance of the defense lawyer's role, he is to be included again in the calculation of the number of defense lawyers. The consequence of this risk is that if three lawyers have already been appointed as defense counsel, but only the sub-attorney of one of the three lawyers is present at the hearing, that lawyer may not accept the full defense mandate – which may be offered by the defendant in the form of a declarationof the statement in the minutes of the proceedings – if he does not want to violate § 137 I S.2 StPO. The respective sub-attorney thus also has the obligation to monitor the appointments of defense attorneys with regard to the number of defense attorneys in order not to be rejected in accordance with § 137 I S.2, 146a StPO.
As a summary of the result, it should be noted that the letterhead of the power of attorney form is not decisive for the appointment of a defense attorney. What matters is the relationship between the defendant and the defense attorney with regard to the granting and acceptance of the mandate. A defense attorney from a law firm with more than three colleagues can only be rejected under the assumption of a violation of § 137 I S. 2 StPO if an interpretation of the defense attorney's order is excluded and therefore, not the law firm, but all lawyers would have to be considered defense attorneys. However, if the defense counsel's appointment can be clearly identified on the basis of the respective circumstances, a violation of § 137 I S. 2 StPO cannot be assumed. If a granted sub-authorization is identified in written pleadings, the possibility and thus the risk that the lawyer acting under a substitute power of attorney is included as a "defender" in the calculation according to § 137 I S.2 StPO. Other regionally established procedures are to be rejected because they do not correspond to the applicable legal regulation.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.