 |
 |
 |
 |
 |
Main Index
Index:
* The Federal Lawyer Act of Germany - section 2 of 5
* The Federal Lawyer Act of Germany - section 2 of 5
| BRAO 51 to 89 | |
The Rechtanwalt's files
(1) A Rechtsanwalt must be in a position to give an orderly account of his/her professional work. This must be done by creating files.
(2) The Rechtsanwalt must keep the files for five years after bringing a case to a conclusion. However this duty shall lapse, even before this period has ended, if the Rechtsanwalt has requested the client to take the files and the client has not met this request within six months of receiving it.
(3) A Rechtsanwalt may refuse to surrender the files to the client until the Rechtanwalt's fees and disbursements have been paid. This shall not be the case in as far as it would be unreasonable in the circumstances to withhold the files or individual documents.
(4) Files in the meaning of para.s 2 and 3 of this provision are only the documents which the
Rechtsanwalt has received for or on behalf of the client on grounds of his/her professional
practice, but not the correspondence between the Rechtsanwalt and the client nor documents
where the client has already received the original or a copy.
(5) Para. 4 shall apply accordingly in as far as the Rechtsanwalt uses electronic data processing in order to keep files.
BRAO 51
Professional indemnity insurance
(1) A Rechtsanwalt must take out professional indemnity insurance in order to cover his/her potential liability for financial loss resulting from his/her professional practice. The Rechtsanwalt must maintain the insurance for the duration of his/her admission. The insurance must be taken out with an insurance company that is authorised to conduct business operations in Germany under the General Terms and Conditions of Insurance set out in the Insurance Supervisory Act (Versicherungsaufsichtsgesetz). The insurance must also cover financial loss for which the Rechtsanwalt is liable under 278 or 831 of the German Civil Code.
(2) The contract of insurance must afford coverage for each and every breach of duty which could result in legal liability claims being brought against the Rechtsanwalt under private law; it may be agreed that all breaches of duty in connection with one uniform mandate shall be regarded as a single case of loss, whether this is due to the conduct of the Rechtsanwalt or of a vicarious agent assisting the Rechtsanwalt.
(3) The contract of insurance may exclude liability for:
1. claims against the insurer on grounds of a deliberate breach of duty,
2. claims against the insurer on grounds of services rendered through law practices or offices
established or run in other countries,
3. claims against the insurer on grounds of services involving legal advice in non-European law and concerning oneself with such law,
4. claims against the insurer arising from the Rechtsanwalt appearing before courts outside Europe,
5. claims for damages due to embezzlement by staff, relatives and partners of the Rechtsanwalt.
(4) The minimum coverage shall be 250,000 euro for each case of loss. The benefits paid out by the insurer for all losses caused within an insurance year may be limited to four times the minimum coverage.
(5) It shall be permissible to agree on an excess of up to 1 per cent of the minimum coverage.
(6) In the contract of insurance the insurer must undertake to immediately notify the responsible Regional Judicial Administration and the responsible Bar of the commencement and the end or termination of the contract of insurance and of any amendment to the contract of insurance that negatively affects the prescribed coverage.
(7) The responsible body in the meaning of 158c para. 2 of the Act concerning Contracts of Insurance (Gesetz ber den Versicherungsvertrag) is the Regional Judicial Administration.
(8) The Federal Ministry of Justice shall have powers to set a different minimum coverage by way of statutory order with the approval of the Upper House of Parliament (Bundesrat) after seeking the opinion of The German Federal Bar, should this be necessary in order to ensure adequate protection for the injured parties in changed financial circumstances.
BRAO 51a
Contractual limit on claims for compensation
(1) The client's claims for damages due to negligence under the contract between the client and the Rechtsanwalt may be limited:
1. to the sum of the minimum coverage by written agreement in the individual case;
2. to four times the sum of the minimum coverage under a standard contract in the case of ordinary negligence, if such coverage is afforded.
(2) Members of a partnership are jointly and severally liable under the contract between themselves and the client. Personal liability for damages may be limited under a standard contract to individual members of a partnership who work on the case within the framework of their own professional rights and who are mentioned by name. The statement of consent to such limitation of liability may not contain any further statements and must be signed by the client.
BRAO 51b
Limitation period for claims to compensation
The client's claim for damages under the contract with the Rechtsanwalt shall become statute-barred three years from the date when the claim arose and no later than three years after the case has been brought to a conclusion.
BRAO 52
Representation by a Rechtsanwalt
(1) In as far as representation by Rechtsanwlte is required, a Rechtsanwalt who has been briefed to represent a party in court may only delegate such a brief to a Rechtsanwalt who may also be briefed to represent the party in the proceedings.
(2) In the oral hearing a Rechtsanwalt who has been appointed to represent a party before a trial court may instruct a Rechtsanwalt who may not himself/herself be appointed to represent the interests of the party for whom the Rechtsanwalt is acting as counsel.
BRAO 53
Appointment of a general deputy
(1) A Rechtsanwalt must ensure that he/she has a deputy to stand in for him/her,
1. if the Rechtsanwalt is prevented from practising his/her profession for longer than one week;
2. if the Rechtsanwalt wishes to remain absent from his/her law practice for longer than one week.
(2) A Rechtsanwalt may appoint his/her deputy himself/herself if the period in question does not last longer than one month and if the deputy is a Rechtsanwalt who is admitted before the same court. In other cases the deputy shall be appointed by the Regional Judicial Administration on the Rechtanwalt's application.
(3) On the Rechtanwalt's application, the Regional Judicial Administration may appoint a deputy from the very outset in all cases in which the Rechtsanwalt may be unable to practise during the course of a calendar year. The opinion of the Council of the Bar must be sought before such an appointment is made.
(4) The Regional Judicial Administration should appoint a Rechtsanwalt as deputy. It may also
appoint other persons who have qualified to become a judge or trainees (Referendare) who have been in preparatory service for at least twelve months. 7 and 20 para. 1 no. 1 shall apply accordingly.
(5) In the cases set out in para. 1 the Regional Judicial Administration may appoint the deputy ex officio if the Rechtsanwalt has omitted to take a measure required under para. 2 sentence 1 or to apply for the appointment of a deputy under para. 2 sentence 2. However the deputy should not be appointed until the Rechtsanwalt has first been requested to appoint the deputy himself/herself or to submit an application in accordance with para. 2 sentence 2 and the time limit set for this has expired to no avail. A Rechtsanwalt who has been appointed ex officio as a deputy may only refuse to serve as deputy if there are important grounds for doing so. The Regional Judicial Administration shall decide whether the refusal is admissible after seeking the opinion of the Council of the Bar.
(6) The Rechtsanwalt must notify the court where he/she is admitted of the appointment of a deputy in the cases set out in para.s 2 and 3. In the case set out in para. 5 the deputy must also notify the court of his/her appointment.
(7) The deputy shall have the rights of the Rechtsanwalt for whom he/she is deputising.
(8) The appointment may be revoked.
(9) The deputy shall act on his/her own responsibility, but in the interests of, on the account of and at the expense of the Rechtsanwalt for whom he/she is deputising. 666, 667 and 670 of the Civil Code shall apply accordingly.
(10) A deputy who is appointed ex officio shall have the right to enter the offices of the law practice in question and to take possession of, demand surrender of and make dispositions in respect of the items belonging to the law practice, including the items that have been entrusted to the Rechtsanwalt in a fiduciary capacity. The deputy shall not be bound by instructions from the Rechtsanwalt for whom he/she is deputising.
The Rechtsanwalt for whom the deputy is deputising may not unduly interfere with the deputy's work. The Rechtsanwalt must pay a deputy who has been appointed ex officio a reasonable fee for which a security must be provided if circumstaces so require. If the parties cannot agree on the sum of the fee or on the security or if the security is not provided, the Council of the Bar may set the fee on the application of the Rechtsanwalt who is being deputised or on the application of the deputy. The deputy has the right to demand advances on the fee which has been agreed or set. The Bar shall stand as surety for a fee which has been set.
BRAO 54
Legal acts of the deputy after the death of a Rechtsanwalt
If a Rechtsanwalt for whom a deputy has been appointed has died, any legal acts that the deputy took before the Rechtsanwalt's name was deleted from the List of Rechtsanwlte shall not be invalid merely on the ground that the Rechtsanwalt was no longer alive at the time when the deputy was appointed or at the time when the act was taken. The same shall apply to legal acts which were taken vis--vis the deputy before the Rechtsanwalt's name was deleted from the List of Rechtsanwlte.
BRAO 55
Appointment of a liquidator to wind up the affairs of the law practice
(1) If a Rechtsanwalt has died, the Regional Judicial Administration may appoint a Rechtsanwalt as liquidator (or another person who has qualified to become a judge) to wind up the affairs of the law practice. 7 and 20 para. 1 no. 1 shall apply accordingly. Before the appointment is made, the opinion of the Bar Council must be sought. The liquidator should not usually be appointed for longer than one year. On the application of the liquidator the appointment may be renewed for a maximum of one year at a time if the liquidator provides credible proof that there are pending matters which could not yet be brought to a conclusion.
(2) The liquidator shall be under a duty to bring pending matters to a conclusion. The liquidator shall continue to work on the current cases. In the first six months the liquidator shall also have the right to accept fresh instructions. The liquidator shall have the same rights that the deceased Rechtsanwalt had. In respect of the pending matters the liquidator shall be deemed appointed by the party in as far as this party has not made alternative arrangements for the protection of his/her rights. The liquidator must notify his/her appointment to the court where the deceased Rechtsanwalt was admitted.
(3) 53 para. 5 sentences 3 and 4, para.s 9 and 10 shall apply accordingly. The liquidator has the right to collect claims due to the deceased Rechtsanwalt in his/her own name on the account of the Rechtanwalt's heirs, but is not obliged to do so unless within the framework of proceedings for setting costs.
(4) The appointment may be revoked.
(5) A liquidator may also be appointed for the law practice of a former Rechtsanwalt whose admission to the legal profession has expired or has been withdrawn or revoked.
BRAO 56
Special obligations towards the Council of the Bar
(1) In regulatory matters and matters concerning appeals a Rechtsanwalt must provide the Council of the Bar or an authorised member of the Council with information and produce his/her files on request or appear before the Council or the authorised member. This does not apply if and in as far as the Rechtsanwalt would thus be in breach of the duty of professional secrecy or if providing a truthful response or submitting his/her files would involve a risk of being prosecuted on grounds of a criminal offence, a breach of administrative rules or a breach of professional ethics and the Rechtsanwalt invokes this as a reason. The Rechtanwalt's attention must be drawn to the right to refuse to supply information.
(2) A Rechtsanwalt must immediately notify the Council of the Bar if
1. the Rechtsanwalt enters into employment or if a major change occurs under an existing contract of employment,
2. the Rechtsanwalt permanently or temporarily serves as a judge, a civil servant, a regular soldier or a soldier in short-term service,
3. the Rechtsanwalt takes up public office in the meaning of 47 para. 2.
On request the documents pertinent to any contract of employment must be submitted to the
Council of the Bar.
BRAO 57
Fine for breach of special duties
(1) In order to compel a Rechtsanwalt to perform his/her duties under 56 the Council of the Bar may order the Rechtsanwalt to pay a fine, including a repeat fine. The individual fine may not exceed one thousand euro.
(2) The imposition of a fine must first be threatened in writing by the Council or the President. The threat and the assessment of the fine must be served on the Rechtsanwalt.
(3) A Rechtsanwalt may appeal against the threat and the assessment of the fine within one month of their being served by petitioning the Higher Lawyers' Court. The petition must be submitted in writing to the Council of the Bar. If the Council considers the petition to be justified it shall grant relief; otherwise the petition must be immediately submitted to the Higher Lawyers' Court. The court that shall have jurisdiction is the Higher Lawyers' Court at the Higher Regional Court in whose district the Bar has its seat. In addition the provisions of the Code of Criminal Procedure concerning appeals (Beschwerde) shall apply mutatis mutandis. The counter-statement ( 308 para. 1 of the Code of Criminal Procedure) shall be made by theCouncil of the Bar. The Public Prosecutor's office shall not be party to the proceedings. The ruling made by the Higher Lawyers' Court cannot be challenged.
(4) The fine shall accrue to the Bar. It shall be collected on the basis of a certified copy of the
assessment notice issued by the Treasurer with a certificate of enforceability in accordance with the rules that apply to the enforcement of judgments in civil litigation.
BRAO 58
Inspection of personal files
(1) A Rechtsanwalt has the right to inspect his/her personal files.
(2) A Rechtsanwalt may only exercise the right to inspect his/her personal files in person or through another authorised Rechtsanwalt.
(3) On inspecting the files the Rechtsanwalt or his/her authorised agent may make a record of the contents of the file or copies of individual documents.
BRAO 59
The professional training of Rechtsanwlte who have passed their first state examination
(Referendare)
(1) A Rechtsanwalt should participate to a reasonable degree in the training of Rechtsanwlte who have passed their first state examination (Referendare). The Rechtsanwalt must give the
Referendar in practical professional training at his/her law practice instruction in the duties of a
Rechtsanwalt, providing guidance and opportunities to undertake practical work. The subject of
the professional training should particularly be the work of a Rechtsanwalt in and out of court,
dealing with clients, professional ethics, rights and duties and the organisation of a law practice.
(2) 157 para.s 1 and 2 of the Code of Civil Procedure does not apply to a Referendar who
represents clients under the supervision of a Rechtsanwalt. The same applies if the Referendar represents the Rechtsanwalt in cases in which representation by a Rechtsanwalt is not required.
BRAO 59a
Professional collaboration
(1) Rechtsanwlte may associate in a partnership with members of the Bar and members of the Chamber of Patent Attorneys, with tax consultants (Steuerberater), tax agents ** (Steuerbevollmchtigte), auditors and certified accountants in order to jointly practise their professions within the framework of their own professional rights. 137 para. 1 sentence 2 of the Code of Criminal Procedure and the provisions regarding representation before courts shall not present a barrier to this. Rechtsanwlte who are also notaries may only enter into such a partnership in relation to their profession as Rechtsanwlte. Furthermore an association with Rechtsanwlte who are also notaries shall be based on the provisions and requirements of the professional code of conduct for notaries.
/** Tranclator's note: A tax agent (Steuerbevollmchtiger) is a person qulified to give advice in tax matters but of a lower status than a Steuerbereator. **/
(2) A partnership shall require a joint law practice or several law practices in which at least one
member of the partnership occupies a responsible position and for whom the law practice forms the focal point of his/her professional work. This shall have no bearing on 29a.
(3) Rechtsanwlte may also enter into partnerships with:
1. members of the legal professions from Member States of the European Union or from other states who, under the provisions of the Act concerning the Work of European Lawyers in Germany (Gesetz ber die Ttigkeit europischer Rechtsanwlte in Deutschland) of 9 March 2000 (Federal Gazette I p. 182), as amended, have a right of establishment in the jurisdiction in which this Act is in force and who maintain a law practice abroad;
2. with patent attorneys, tax consultants, tax agents, auditors or certified accountants from other states who practise a profession that is equivalent in terms of training and rights to the professions governed by the Professional Code of Conduct for Patent Attorneys (Patentanwaltsordnung), the Tax Consultancy Act (Steuerberatungsgesetz) or the Professional Code of Conduct for Auditors (Wirtschaftsprferordnung) and may form a partnership with patent attorneys, tax consultants, tax agents or auditors in the jurisdiction in which this Act is in force.
(4) Para.s 1 and 3 shall apply accordingly to offices shared by independent professionals.
BRAO 59b
Rule-making competence
(1) Further details regarding professional rights and duties shall be set out in the rules of a code of professional conduct.
(2) Within the framework of the provisions of this Act the code of professional conduct may more closely regulate:
1. general professional duties and basic duties,
a) conscientiousness,
b) upholding independence,
c) confidentiality,
d) objectivity,
e) prohibition against representing conflicting interests,
f) handling third-party assets,
g) the duty to maintain a law practice;
2. particular professional duties in connection with holding the specialised title of ''Specialised
Lawyer'' (Fachanwalt), a) definition of the fields of law in which further titles of ''Fachanwalt'' may be granted, b) a statement of the preconditions for granting the specialised title of ''Fachanwalt'' and the procedure for granting, withdrawing and revoking permission to use such a title;
3. particular professional duties in connection with advertising and details concerning self-defined fields of specialisation;
4. particular professional duties in connection with the denial of the right to practise;
5. particular professional duties
a) in connection with accepting instructions, looking after a case and bringing a case to a conclusion,
b) towards persons seeking access to justice with the help of legal aid for legal advice and litigation,
c) in giving advice to persons with a low income who are seeking access to justice,
d) in keeping files;
6. particular professional duties vis--vis courts and authorities, 3 Translator's note: A tax agent (Steuerbevollmchtiger) is a person qualified to give advice in tax matters, but of a lower status than a Steuerberater a) obligations in using files provided for inspection and the knowledge gained from them,
b) obligations in the case of the service of documents,
c) wearing the robes of the profession;
7. particular professional duties in agreeing on and billing for the fees of Rechtsanwlte and in their collection;
8. particular professional duties towards the Bar in regulatory matters, professional behaviour vis-vis members of the Bar, obligations in connection with professional collaboration, obligations in connection with the employment of Rechtsanwlte, training Rechtsanwlte and also employing other staff;
9. particular professional duties in cross-border legal services.
Part two
Rechtsanwaltsgesellschaften **
/** These law companies similar to limited liability companies.**/
BRAO 59c
Admission as a Rechtsanwaltsgesellschaft, participation in professional groupings
(1) Limited liability companies whose objects include legal advice and representation in legal matters may be admitted as Rechtsanwaltsgesellschaften.
(2) It is not permitted for Rechtsanwaltsgesellschaften to form professional groupings in order to practise jointly.
BRAO 59d
Preconditions for admission
Admission shall be granted if
1. the company meets the requirements set out in 59c, 59e und 59f;
2. the company is not in a state of financial deterioration;
3. evidence is provided of professional indemnity insurance ( 59j) or a provisional coverage note is produced.
BRAO 59e
Partners
(1) Only Rechtsanwlte and members of the professions specified in 59a para. 1 sentence 1, para. 3 may be partners in a Rechtsanwaltsgesellschaft. They must practise professionally in the Rechtsanwaltsgesellschaft. 59a para. 1 sentences 3 and 4 and 172a shall apply accordingly.
(2) The partners are not permitted to practise the profession that they practise in the
Rechtsanwaltsgesellschaft in any other professional association.
(3) The majority of the shares and voting rights must be held by Rechtanwlte. If partners do not have the right to practise one of the professions specified in 59a para. 1 sentence 1, para. 3 they shall have no voting rights.
(4) Shares in the Rechtsanwaltsgesellschaft may not be held on the account of third parties and third parties may have no share in the profits of a Rechtsanwaltsgesellschaft.
(5) Partners may only authorise partners to exercise partners rights if they have voting rights, are members of the same profession or are Rechtsanwlte.
BRAO 59f
Management
(1) A Rechtsanwaltsgesellschaft must be responsibly managed by the Rechtsanwlte. The majority of the managing directors must be Rechtsanwlte.
(2) A person may only be a managing director if this person has the right to practise one of the
professions defined in 59a para. 1 sentence 1, para. 3. 59e para. 2 shall apply accordingly.
(3) Para. 1 sentence 2 and para. 2 shall apply accordingly to ''prokurists''** and agents empowered to bind the corporation in all aspects of its business (Handlungsbevollmchtigte). These law companies similar to limited liability companies.
/** (Translator's note: A prokurist holds a power of attorney and may act on behalf of the owners in respect of all commercial transactions in and out of court; this authority must be entered in the Commercial Register.) **/
(4) The independence of the Rechtsanwlte who are authorised as managing directors or authorised under para. 3 must be guaranteed when they are practising as Rechtsanwlte. It is not permissible for partners to exert influence, namely through issuing instructions or through
contractual obligations.
BRAO 59g
Admission procedure
(1) The Regional Judicial Administration in whose area of authority the Rechtsanwaltsgesellschaft has its principal place of business shall take the decision concerning the application for admission as a Rechtsanwaltsgesellschaft. An executed copy or a publicly certified copy of the articles of association must be submitted with the application.
(2) Before taking a decision, the Regional Judicial Administration shall seek an expert opinion from the Council of the Bar in whose district the Rechtsanwaltsgesellschaft has its principal place of business. The opinion should also contain comments on all preconditions for admission set out in 59d. 8 para.s 3 and 4 shall apply accordingly.
(3) If the Council of the Bar states in the opinion that the applicant does not satisfy the conditions for admission, the Regional Judicial Administration shall stay the decision regarding the application for admission as a Rechtsanwaltsgesellschaft and shall send the applicant a certified copy of the opinion.
(4) The decision regarding the application for admission as a Rechtsanwaltsgesellschaft may be stayed if proceedings have been instituted against a partner or an authorised agent in the
meaning of 59f with the aim of withdrawing or revoking his/her admission to the legal profession or appointment or if a provisional professional disbarment or ban against acting as counsel has been issued. However a decision shall be taken regarding the application for registration as a Rechtsanwaltsgesellschaft if it is already inadmissible irrespective of the outcome of the proceedings mentioned in sentence 1.
(5) 9 para.s 2 to 4 and 11 and 12 para. 1 shall apply accordingly to the admission procedure. The court that shall have jurisdiction in the meaning of 9 para. 2 sentence 2, 11 para. 2 sentence 2 shall be the Higher Lawyers' Court at the Higher Regional Court in whose district the Rechtsanwaltsgesellschaft has its principal place of business.
BRAO 59h
Expiry, withdrawal and revocation of admission
(1) Admission shall expire on the dissolution of the Rechtsanwaltsgesellschaft.
(2) Admission shall be withdrawn if it should transpire after admission that admission should have been refused. 14 para. 3 shall apply accordingly.
(3) Admission shall be revoked if the Rechtsanwaltsgesellschaft no longer satisfies the preconditions set out in 59c, 59e, 59f, 59i and 59j, unless the Rechtsanwaltsgesellschaft has brought about the conditions prescribed by law within a reasonable period of time to be determined by the Regional Judicial Administration. If the precondition set out in 59e para.s 1 and 3 should no longer apply due to a case of inheritance, the time limit must be at least one year. The set term shall start to run when the case of inheritance occurs.
(4) Furthermore admission shall be revoked if
1. the Rechtsanwaltsgesellschaft has renounced the rights conferred by admission in the form of a written statement to the Regional Judicial Administration;
2. the Rechtsanwaltsgesellschaft has fallen into a state of financial deterioration unless this in no way adversely affects the interests of persons seeking access to justice.
(5) The withdrawal or the revocation of admission shall be ordered by the Regional Judicial
Administration in the Land in which the Rechtsanwaltsgesellschaft has its principal place of
business at the time that proceedings are instituted. 16 para.s 2, 4 to 7 shall apply accordingly. The court that shall have jurisdiction in the meaning of 16 para. 5 sentence 2 shall be the Higher Lawyers' Court at the Higher Regional Court in whose district the Rechtsanwaltsgesellschaft has its principal place of business.
(6) If the Rechtsanwaltsgesellschaft has forfeited its rights of admission, a liquidator may be
appointed on its behalf to wind up its affairs if the persons appointed as legal representatives can offer no satisfactory guarantee that pending matters will be brought to a proper conclusion. 55 shall apply accordingly. The partners shall be jointly and severally liable for the liquidator's set fee. This shall not affect 53 para. 10 sentence 7.
BRAO 59i
The law practice and its branch office
(1) The Rechtsanwaltsgesellschaft must keep a law practice in the locality where it has its principal place of business, a responsible position being occupied by at least one managing Rechtsanwalt for whom the law practice forms the focal point of his/her professional practise. This shall not affect 29a.
(2) Para. 1 shall apply accordingly to branch offices.
BRAO 59j
Professional indemnity insurance
(1) The Rechtsanwaltsgesellschaft must take out professional indemnity insurance and maintain such insurance as long as it is admitted. 51 para.s 1 to 3 and 5 to 7 shall apply accordingly.
(2) The minimum coverage shall be 2,500,000 euro for each case of loss.
The benefits paid out by the insurer for all losses suffered in an insurance year may be limited to the minimum coverage multiplied by the number of partners and managing directors who are not partners. However the maximum annual benefits for all losses suffered in an insurance year must be at least four times the sum of the minimum coverage.
(3) If it should be necessary to ensure adequate protection for injured parties in changed financial circumstances, the Federal Ministry of Justice shall have powers to set a different minimum coverage by way of statutory order with the approval of the Upper House of Parliament (Bundesrat) and after seeking the opinion of The German Federal Bar.
(4) If the professional indemnity insurance is not maintained or not maintained to the required degree, the partners and the managing directors shall be held personally liable in addition to the company. The extent of their liability shall be equal to the sum of the shortfall in coverage
BRAO 59k
The name of the Rechtsanwaltsgesellschaft
(1) The name of the Rechtsanwaltsgesellschaft must contain the name of at least of one of the
partners who is a Rechtsanwalt and also the word ''Rechtsanwaltsgesellschaft''. If the
Rechtsanwaltsgesellschaft is to continue a partnership, it shall be permissible to include an
approved and abbreviated form in the name of the company in addition to or instead of the name of the parter as required in sentence 1. Other elements in the name are only permissible in as far as they are prescribed by law.
(2) No Rechtsanwaltsgesellschaften other than those that are registered as
Rechtsanwaltsgesellschaften may call themselves a ''Rechtsanwaltgesellschaft''.
BRAO 59l
Representation before courts and authorities
A Rechtsanwaltsgesellschaft may be engaged to act as Rechtsanwalt in a trial or to act as representative in proceedings. In doing so it shall have the rights and duties of a Rechtsanwalt. It shall act through its directors and officers who must be persons who, in the individual case, satisfy the statutory conditions for the provision of legal services. Counsel for the defence in the meaning of 137 et seq. of the Code of Criminal Procedure may only be the person acting on behalf of the Rechtsanwaltsgesellschaft.
BRAO 59m
Duties to provide information, applicable rules, duty to maintain confidentiality
(1) The Rechtsanwaltsgesellschaft must immediately notify the Regional Judicial Administration and the Bar of any amendment to its articles of association, any change in its partners or in the identity of the authorised representative in the meaning of 59f and of any branch offices which are established or dissolved. A publicly certified copy of the relevant deed must be submitted. If the change is registered in the Commercial Register, a certified copy of the entry must be submitted retrospectively.
(2) The rules set out in Part Three and Part Four of the Chapter Two, sections 43 to 43b, 44, 48, 49a to 50, 51a para. 1, sections 51b, 52 para. 2, 56 para. 1 and 57 to 59 und 163 shall apply accordingly to Rechtsanwaltsgesellschaften.
(3) The partners and the members of the supervisory bodies provided for by law or in the articles of association are under a duty to maintain confidentiality.
Chapter Four
The Bar
Part One
General
BRAO 60
Composition and seat of the Bar
(1) Rechtsanwlte who are admitted in the district of a Higher Regional Court and
Rechtsanwaltsgesellschaften which have their principal place of business in such districts shall
associate to form a Bar. Members of the Bar, in as far as they are not Rechtsanwlte or members of one of the professions defined in 206, 209 para. 1, may also include the managing directors of the Rechtsanwaltsgesellschaften mentioned in sentence 1.
(2) The Bar shall have its seat in the locality of the Higher Regional Court.
BRAO 61
Formation of a further Bar
(1) The Regional Judicial Administration may establish a further Bar in the district of a Higher
Regional Court if more than five hundred Rechtsanwlte or Rechtsanwaltsgesellschaften are
admitted in the district. The opinion of the Council of the Bar must be sought before a further Bar is established. The Regional Judicial Administration shall decide to which Bar the Rechtsanwlte who are admitted before the Higher Regional Court shall belong and how the districts of the Regional Courts shall be divided up among the regional Bars.
(2) The Regional Judicial Administration shall determine where the further Bar is to have its seat.
BRAO 62
The status of the Bar
(1) A Bar is a public corporation.
(2) The Regional Judicial Administration shall be responsible for the state regulation of the Bar. Regulatory measures shall be limited to ensuring that the law and the internal rules are observed and in particular that the Bar performs the duties assigned to it.
Part two
The constituent bodies of the Bar
1. The Council
BRAO 63
Composition of the Council
(1) The Bar shall have a Council.
(2) The Council shall consist of seven members. The Assembly of the Bar may decide on a higher number.
(3) The Council shall adopt rules of procedure.
BRAO 64
Elections to the Council
(1) The members of the Council shall be elected by the Assembly of the Bar.
(2) Further details shall be set out in the rules of procedure of the Bar.
BRAO 65
Eligibility for election
Only persons who
1. are members of the Bar,
2. have reached the age of thirty-five and
3. have been practising as a Rechtsanwalt for an uninterrupted period of at least five years
may be elected to sit on the Council.
BRAO 66
Ineligibility for election
A Rechtsanwalt
1. against whom proceedings have been instituted before the Lawyers' Disciplinary Court or who has been disbarred from practising or acting as counsel (sections 150, 161a);
2. who is being publicly prosecuted on grounds of a criminal offence which may mean that the
person concerned becomes ineligible for public office;
3. who has incurred a caution or a fine in the last five years or who has been banned from acting as counsel ( 114 para. 1 Nr. 4) in the last ten years or who has been excluded from the legal profession in the last fifteen years may not be elected to sit on the Council.
BRAO 67
The right to refuse to be elected
A Rechtsanwalt
1. who has reached the age of sixty-five;
2. who has been a member of the Council at any time in the last four years;
3. who cannot properly carry out his/her duties as a member of the Council for more than merely a temporary period may refuse to be elected to sit on the Council.
BRAO 68
Term of office
(1) The members of the Council shall be elected for a period of four years. Re-election shall be permissible.
(2) Every two years half of the members shall resign from the Council. In the case of uneven
numbers, the larger number shall resign the first time. The members resigning for the first time
shall be determined through a draw.
(3) If the number of members on the Council is increased, para. 2 sentence 2 shall apply accordingly to the new members who resign at the end of the second year.
(4) If an election necessitated by an increase in the number of members on the Council is held at the same time as new elections, the two elections shall be held separately.
BRAO 69
The premature retirement of a member of the Council
(1) A Rechtsanwalt shall retire as a member of the Council
1. if the Rechtsanwalt is no longer a member of the Bar or is no longer eligible for election for the reasons stated in 66 no. 3;
2. if the Rechtsanwalt resigns from office.
(2) The Rechtsanwalt must submit a written statement the Council announcing his/her intention to resign from office. The statement may not be revoked.
(3) If a member prematurely retires from the Council, a new member shall be elected for the
remainder of the former member's term of office. This shall be done at the next Assembly of the Bar. The Assembly of the Bar may refrain from the first election if the number of members on the Council does not fall below seven and if the remainder of the former member's term of office would have been no longer than one year.
(4) If a public prosecution in the meaning of 66 no. 2 has been instituted against a member of the Council or if proceedings have been instituted before the Lawyers' Disciplinary Court, his/her membership of the Council shall lapse until the proceedings have been brought to a conclusion. If the member has been disbarred or banned from acting as counsel ( 150, 161a), his/her membership shall lapse for as long as this is the case. If there is a suspicion that a member of the Council has committed a negligent breach of his/her professional duties, the member shall be excluded from acting for the Bar in this matter.
BRAO 70
Meetings of the Council
(1) The Council shall be convened by the President.
(2) The President must convene a meeting if three members of the Council apply for this in writing indicating the matter to be discussed.
(3) Further details shall be set out in the rules of procedure of the Council.
BRAO 71
Quorum of the Council
The Council shall form a quorum if at least half of its members are present or participate in a written ballot.
BRAO 72
Resolutions of the Council
(1) The resolutions of the Council shall be taken by a simply majority of the votes cast. The same applies to the elections to be carried out by the Council. If there is a parity of votes, the
Chairperson of the Council shall give the casting vote. In the case of elections the decision shall be taken by means of a draw.
(2) A member may not vote on matters in which he/she has an interest. However this shall not be the case in elections.
(3) Minutes must be taken of the resolutions of the Council and the results of elections. They shall be signed by the Chairperson and by the Secretary.
(4) Resolutions passed by the Council may be taken by written ballot if no member of the Council raises an objection.
BRAO 73
The duties of the Council
(1) The Council must perform the duties assigned to it by law. It shall protect and promote the
interests of the Bar.
(2) The Council is under a particular duty,
1. to advise and instruct the members of the Bar in matters of professional ethics;
2. on application, to mediate between the members in cases of dispute;
3. on application, to mediate between members of the Bar and their clients in cases of dispute;
4. to monitor the performance of the duties incumbent on the members and to take steps to issue reprimands when required;
5. to propose Rechtsanwlte for appointment as members of the Lawyers' Disciplinary Court and of the Higher Lawyers' Court;
6. to make proposals to The German Federal Bar in accordance with 107 and 166;
7. to render account to the Assembly of the Bar every year concerning the administration of the assets;
8. to provide opinions that are required by a Regional Judicial Administration, a court or an
administrative authority of the Land;
9. to co-operate in training and examining students and trainee Rechtsanwlte (Referendare) and in particular to propose qualified examiners and instructors for study groups;
10. to propose the Rechtsanwlte who are members of the judicial examination committees.
(3) The Council may assign the tasks set out in para. 2 no. 1 to 3 to individual members of the Council.
BRAO 74
The Council's right to issue reprimands
(1) The Council may reprimand a Rechtsanwalt on grounds of conduct that has caused the
Rechtsanwalt to breach his/her duties, if the Rechtsanwalt bears only little blame and an
application for the institution of disciplinary proceedings does not seem necessary. 113 para.s 2 and 3, 115b and 118 para. 2 shall apply accordingly.
(2) The Council may no longer issue a reprimand if disciplinary proceedings against the Rechtsanwalt have already commenced or if more than three years have elapsed since the breach of duty. A reprimand may not be issued while proceedings are pending on an application of the Rechtsanwalt in accordance with 123.
(3) The Rechtsanwalt must be given a hearing before a reprimand is issued.
(4) Reasons must be given for the notice of reprimand that the Council issues to a Rechtsanwalt on grounds of the Rechtsanwalt's conduct. It must be served on the Rechtsanwalt. A copy of the notice of reprimand must be sent to the Public Prosecutor's office at the Higher Regional Court.
(5) A Rechtsanwalt may appeal against the notice of reprimand within one month of it having been served. The Council shall take a decision regarding the appeal. Para. 4 shall apply accordingly.
(6) Paragraphs 1 to 5 shall apply accordingly to persons who belong to a Bar in accordance with 60 para. 1 sentence 2.
BRAO 74a
Petition to the Lawyers' Disciplinary Court
(1) If the appeal against the notice of reprimand from the Council of the Bar is dismissed, the
Rechtsanwalt may petition the Lawyers' Disciplinary Court within one month of the notice having been served. The court that shall have jurisdiction shall be the Lawyers' Disciplinary Court in the locality where the Bar whose Council has issued the reprimand has its seat.
(2) The petition must be submitted in writing to the Lawyers' Disciplinary Court. The proceedings shall be governed mutatis mutandis by the provisions of the Code of Criminal Procedure concerning appeals. The counter-statement ( 308 para. 1 of the Code of Criminal Procedure) shall be made by the Council of the Bar. The Public Prosecutor's office shall not be party to the proceedings. An oral hearing shall be held if the Rechtsanwalt has filed such a petition or if the Lawyers' Disciplinary Court considers this to be necessary. The Council of the Bar, the Rechtsanwalt and the Rechtanwalt's defence counsel must be notified of the date and the venue for the oral hearing. However in order to investigate the truth, the court shall, ex officio, extend the taking of evidence to all facts and evidence that are of importance for the decision.
(3) The notice of reprimand may not be overruled on the ground that the Council of the Bar has wrongly assumed that only little blame attaches to the Rechtsanwalt and that the application for the institution of proceedings before the Lawyers' Disciplinary Court is not necessary. If the preconditions under which disciplinary sanctions are not to be taken ( 115b) or not to be instituted or continued ( 118 para. 2) are not met until after the Council has issued the notice of reprimand, the Lawyers' Disciplinary Court shall overrule the notice of reprimand. Reasons must be given for the ruling. It cannot be challenged.
(4) The Lawyers' Disciplinary Court before which the petition was filed must immediately provide the Public Prosecutor's office at the Higher Regional Court with a copy of the petition. The Public Prosecutor's office must also be sent a copy of the ruling in which a decision is taken regarding the petition.
(5) If the Public Prosecutor's office institutes disciplinary proceedings against the Rechtsanwalt on grounds of the same conduct as that for which the Council of the Bar has issued a reprimand and no ruling has yet been pronounced concerning the petition against the reprimand, the petition proceedings shall be suspended until the disciplinary proceedings have been concluded and a final decision has been pronounced. In the cases set out in 115a para. 2 the Lawyers' Disciplinary Court shall find that the reprimand is invalid when the suspension comes to an end.
(6) Para.s 1 to 5 shall apply accordingly to persons who belong to the Bar in accordance with 60 para. 1 sentence 2.
BRAO 75
Services rendered by the Council in an honorary capacity
The members of the Council shall render their services on a gratuitous basis. They shall, however, receive reasonable compensation for the expenses they incur in rendering such services and may also claim travelling expenses.
BRAO 76
The duty of the members of the Council to maintain professional confidentiality
(1) In rendering services for the Council the members of the Council must maintain confidentiality concerning matters that come to their knowledge regarding Rechtsanwlte, applicants and other persons and may not disclose such matters to any person. They must keep such matters confidential even after retiring from the Council. Rechtsanwlte who are engaged to assist with the work and employees of the Bar shall also be obliged to maintain confidentiality.
(2) In judicial proceedings the persons mentioned in para. 1 may not make any unapproved
statements concerning matters that have come to their knowledge regarding Rechtsanwlte,
applicants and other persons as a result of serving on the Council.
(3) Approval to make a statement shall be given by the Council of the Bar, exercising its discretion in due assessment of the circumstances. Approval shall only be refused if this is undeniably necessary in view of considerations given to the status or the duties of the Bar or the justified concerns of the persons about whom these facts have become known. This shall have no bearing on 28 para. 2 of the Act concerning the Federal Constitutional Court (Gesetz ber das Bundesverfassungsgericht).
BRAO 77
Divisions of the Council
(1) The Council may form several divisions if this is permitted by the Bar's rules of procedure. It shall delegate certain matters to the divisions which shall then conduct such affairs independently.
(2) Each division must comprise at least three members of the Council. The members of the division shall select a Head of Division and a Division Secretary from their midst and also deputies for such persons.
(3) Before the beginning of the calendar year, the Council shall determine the number of divisions, delegate matters to the divisions and determine the members of the individual divisions. Each member of the Council may belong to several divisions. The arrangements may only be altered during the course of the year if this is necessitated by an excessive workload for a division or by a change in or the permanent incapacitation of individual members of the divisions.
(4) The Council may authorise the divisions to hold meetings outside the locality where the Bar has its seat.
(5) The divisions shall have the same rights and duties as the Council within their areas of
responsibility.
(6) The Council shall take a decision in lieu of a division if it considers this to be appropriate or if the division or the Head of Division makes an application to this effect.
2. The Presidency
BRAO 78
Composition and election
(1) The Council shall elect a Presidency from among its members.
(2) The Presidency shall consist of
1. the President,
2. the Deputy President,
3. the Secretary,
4. the Treasurer.
(3) The Council may increase the number of Presidency members.
(4) The Presidency shall be elected forthwith after each ordinary election of the Council. If a member of the Presidency prematurely retires, a new member shall be elected within three months for the remainder of the former member's term of office.
BRAO 79
Duties of the Presidency
(1) The Presidency shall handle the affairs of the Council as assigned to it under this Act or by virtue of a resolution of the Council.
(2) The Presidency shall take a decision concerning the administration of the assets of the Bar. It shall report to the Council on this subject every three months.
BRAO 80
Duties of the President
(1) The President shall represent the Bar both in and out of court.
(2) The President shall arrange the business transactions of the Bar and of the Council. The
President shall execute the resolutions taken by the Council and by the Bar.
(3) The President shall chair the meetings of the Council and the Assembly of the Bar.
(4) Further duties may be assigned to the President in the rules of procedure of the Council and of the Bar.
BRAO 81
Reports on the work of the Bar and on election results
(1) Each year the President shall provide the Regional Judicial Administration with a written report on the activities of the Bar and of the Council.
(2) The President shall notify the Regional Judicial Administration and The German Federal Bar of the results of the elections to the Council and to the Presidency.
BRAO 82
Duties of the Secretary
The Secretary shall take the minutes of the meetings of the Council and the Assembly of the Bar. The Secretary shall conduct the correspondence of the Council in as far the President does not reserve the rights to this function.
BRAO 83
Duties of the Treasurer
(1) The Treasurer shall manage the assets of the Bar in accordance with the instructions given by the Presidency. The Treasurer shall have the right to receive monies.
(2) The Treasurer shall monitor receipts of the dues.
BRAO 84
Collection of outstanding dues
(1) Outstanding dues, levied charges and administration fees shall be collected on the basis of the payment demand issued by the Treasurer with a certificate of enforceability in accordance with the rules that apply to the enforcement of judgments in civil litigation.
(2) Debt enforcement measures, however, may not be commenced until two weeks after the service of the enforceable payment demand.
(3) The restrictive rule in 767 para. 2 of the Code of Civil Procedure shall not apply to objections which concern the claim itself. In legal actions seeking to enforce objections against the claim itself the court that shall have jurisdiction shall, depending on the amount in dispute, be the Local Court or the Regional Court where the debtor has its general place of jurisdiction in Germany,.
3. The Assembly of the Bar
BRAO 85
Convocation of the Assembly
(1) The Assembly of the Bar shall be convened by the President.
(2) The President must convene the Assembly of the Bar if one tenth of its members make a written application indicating the matter that is to be discussed at the Assembly.
(3) If the absence of anything to the contrary in the Bar's rules of procedure, the Assembly shall be held in the locality where the Bar has its seat.
BRAO 86
Invitation and notice
(1) The President shall convene the Assembly of the Bar in writing or through a public invitation announced in the journals indicated in the rules of procedure of the Bar.
(2) The Assembly must be convened at least two weeks in advance. The date on which the invitation is sent out or published and the date of the Assembly shall not be included when calculating the two weeks.
(3) In urgent cases the President may convene the Assembly at shorter notice.
BRAO 87
Announcement of the agenda
(1) When the Assembly of the Bar is convened the subject matter must be indicated on which a resolution is to be taken at the Assembly.
(2) No resolutions may be taken regarding matters which have not been properly announced.
BRAO 88
Elections and resolutions of the Bar
(1) The preconditions under which the Assembly shall form a quorum shall be specfied in the Bars rules of procedure.
(2) The members may only exercise their voting rights in person.
(3) The resolutions of the Assembly shall be taken by a simple majority. The same applies to the elections to be held by the Bar. If there is parity of votes, the Chairperson shall have the casting vote. In the case of elections the matter shall be decided by means of a draw.
(4) A member may not vote in a matter in which the member has an interest. However this shall not be the case in elections.
(5) Minutes shall be taken of the resolutions passed by the Bar and the results of elections. They shall be signed by the Chairperson and the Secretary.
BRAO 89
The duties of the Assembly of the Bar
(1) The Assembly of the Bar must perform the duties assigned to it by law. It must discuss matters that are of general importance for the legal profession.
(2) The Assembly shall be under a particular duty
1. to elect the Council;
2. to determine the dues, the charges to be levied and the administration fees and the dates when these monies are due for payment;
3. to establish welfare institutions for Rechtsanwlte and their surviving dependants;
4. to approve the funds that are necessary in order to pay the costs in matters which concern the general interests of the community;
5. to prepare guidelines for compensation for expenses and the reimbursement of travelling
expenses to the members of the Council and of the Lawyers' Disciplinary Court and to the court recorders in the main proceedings at the Lawyers' Disciplinary Court;
6. to audit the statement of the Council regarding the income and expenditure of the Bar and the administration of its assets and to pass a resolution regarding the exoneration of the Council.
7.
(3) The Bar shall adopt rules of procedure.
Up
Main Index
2003 Iranian Bar Associations Union
No. 3, Zagros St., Argentina Sq., Tehran, Iran
Phone: +98 21 8887167-9 Fax: +98 21 8771340
Site was technically designed & developed by Nima Norouzi