The Chargé in Germany (Gilbert) to the Secretary of State
[Received March 4.]
Sir: I have the honor to transmit the original German text as well as an English translation, of a German Exchange Decree (Deutscher Devisemerlass) dated February 13, 1939,48 which relates to the representation of Jews by licensed German foreign exchange advisers.
The decree is not only of importance for its application to foreign exchange advisers, but more particularly, perhaps, because it is prefaced by an order signed by the Fuhrer’s Deputy, Herr Hess, regulating the representation of Jews by German lawyers in all types of legal business. It is understood that this order was first printed some time ago in the Juristiche Wochenschrift; its publication in an Exchange Decree in order to provide a basis for the provisions relating to foreign exchange advisers is apparently its first appearance in an official publication.
The order of the Fuhrer’s Deputy, as well as the executory ordinance pertaining thereto, which is likewise embodied in the Exchange Decree, provide briefly that German lawyers who are members of the Party and of the Party’s organizations and affiliated associations, are forbidden to represent and give advice to Jews and Jewish firms in legal matters. The definitions of a “Jew” and of a “Jewish firm” are those set forth, respectively in the First Decree to the Reich Citizenship Law of November 14, 1938 , (Embassy’s despatch No. 2474 of November 18, 1935) and the Third Decree to the Reich Citizenship Law of June 14, 1938, (Embassy’s despatch No. 197 of June 23, 1938).49 Among the affiliated associations specified is the National Socialist League of Lawyers (N. S. Rechtswahrerbund) which includes the great majority of German lawyers. It is understood from a local attorney that the very few German lawyers who are not members of this League have subsequently likewise been forbidden to represent Jews, so that the prohibition may be regarded as of comprehensive and general application.
It will be noted from the text of the order that certain exceptions are made. Officials, notaries and economic inspectors may advise Jews in their apparently strictly official capacity, but may not go “beyond this obligation”. Exceptions are made in cases involving treason, which are tried before the People’s Court, and, furthermore, special emergency permits may be granted for the representation [Page 583] of Jews by German lawyers in specific cases approved by the competent superior authority if the “paramount interest of the German people” so requires. From paragraph (d) of Section IV of the executory regulations to Herr Hess’ order (which are included in the Exchange Decree) it would appear that such emergency permits may be issued to enable German lawyers to represent Jews of foreign nationality.
The provisions of the various orders in the Exchange Decree are fairly involved, and it is therefore deemed inadvisable to attempt further to summarize them. In brief, it would appear that if a Jew or Jewish firm may not obtain representation or legal advice in accordance with the exemptions permitted in these provisions, the only recourse open will be to resort to one of the “Jewish Consultants” who, following the exclusion of Jewish lawyers by the German decree of September 27, 1938, may still conduct legal business for Jews and Jewish firms and represent them in court. The status of these consultants was explained in the Embassy’s despatch No. 392 of October 26, 1938.50
It is suggested that the Department may wish to take note of the provision permitting the representation of foreign Jews by German lawyers, particularly in view of such cases involving American Jewish nationals as may arise in the future in which the question of freedom of choice of counsel might be important.