Iranian Bar Associations

ATTORNEYSHIP LAW/CODE(Page 13)
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* The Federal Lawyer Act of Germany - section 3 of 5
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* The Federal Lawyer Act of Germany - section 3 of 5

BRAO 90 to 147

BRAO § 90
Preconditions for elections and resolutions being held invalid

(1) Elections or resolutions of the Council, the Presidency or the Assembly of the Council of the Bar may be declared invalid or null and void by the Higher Lawyers' Court on the petition of the Regional Judicial Administration if they have come about in breach of the law or the internal rules or if their contents are inconsistent with the law or the internal rules.

(2) The petition may also be filed by a member of the Bar, but with regard to a resolution only if this resolution has offended the member's rights.

BRAO § 91
Proceedings before the Higher Lawyers' Court

(1) The petition to declare an election invalid or a resolution null and void must be in writing and made against the Bar. If the applicant is the President or another member of the Council, the Bar shall be represented by a member who has been specially appointed from the members of the Bar by the presiding judge of the Higher Lawyers' Court.

(2) The petition must state the reasons why the election should be declared invalid or the resolution declared null and void. Detailed evidence should be provided.

(3) A member of the Bar may only file the petition within one month of the election or the passing of the resolution.

(4) The Higher Lawyers' Court fmust notify the Bar of the petition and request a statement to be made within a period of time to be set by the presiding judge, enclosing details of the matter.

(5) The Higher Lawyers' Court shall take a decision regarding the petition through a ruling for which reasons must be given.

(6) An immediate appeal against the ruling of the Higher Lawyers' Court shall only be possible if the court has allowed such an appeal in its ruling. The Higher Lawyers' Court may only allow an immediate appeal if the matter is of fundamental importance. The immediate appeal shall be decided by the Federal Supreme Court.

(7) The proceedings shall be governed by the provisions of § 40 para.s 2 and 4.
Chapter Five The Lawyers' Disciplinary Court, the Higher Lawyers' Court and the Federal Supreme Court in matters concerning Rechtsanwنlte

Part One
The Lawyers' Disciplinary Court

BRAO § 92
Formation of the Lawyers' Disciplinary Court

(1) A Lawyers' Disciplinary Court shall be established for the district of the Bar. It shall have its seat in the same locality as the Bar.

(2) Several divisions shall be formed at the Lawyers' Disciplinary Court if this should be necessary. The number of divisions shall be determined by the Regional Judicial Administration. The opinion of the Council of the Bar must first be sought.

(3) The Regional Judicial Administration shall be the regulatory body for the Lawyers' Disciplinary Court.

BRAO § 93
The composition of the Lawyers' Disciplinary Court

(1) The Lawyers' Disciplinary Court shall have the required numbers of presiding judges and
further members. If several members have been appointed, one of them shall be installed as the Managing Presiding Judge. The Presiding Judge and a further member of the Bar must be
qualified to take office as a judge.

(2) The Regional Judicial Administration shall seek the opinion of the Council of the Bar before
appointing the Presiding Judge and installing the Managing Presiding Judge.

BRAO § 94
Appointment of the members of the Lawyers' Disciplinary Court

(1) Only Rechtsanwنlte may be appointed as members of the Lawyers' Disciplinary Court. They must belong to the Bar for whose district the Lawyers' Disciplinary Court has been constituted.

(2) The members of the Lawyers' Disciplinary Courts shall be appointed by the Regional Judicial Administration. They shall be selected from the list of proposed candidates submitted to the Regional Judicial Administration by the Council of the Bar. The Regional Judicial Administration shall determine the required number of members; it shall first seek the opinion of the Council of the Bar. The list of proposed candidates from the Council of the Bar must contain at least fifty per cent more than the required number of Rechtsanwنlte.

(3) Only a Rechtsanwalt who is eligible for election to the Council of the Bar may become a member of the Lawyers' Disciplinary Court. (§§ 65, 66). The members of the Lawyers' Disciplinary Court may not at the same time belong to the Council of the Bar or to the Statutory Assembly nor may they serve full time or part time for the Bar.

(4) The members of the Lawyers' Disciplinary Court shall be appointed for a term of four years; they may be reappointed after their term of office has come to an end.

BRAO § 95
The legal status of the members of the Lawyers' Disciplinary Court

(1) The members of the Lawyers' Disciplinary Court shall be judges serving in an honorary capacity. In their capacity as honorary judges of the Lawyers' Disciplinary Court they shall have the status of professional judges for their term of office. They shall be paid compensation by the Bar for the expenses incurred in rendering their services and also reimbursement for travelling expenses.

(2) A member of the Lawyers' Disciplinary Court must be removed from office on the application of the Regional Judicial Administration,
1. if it subsequently becomes known that the member should not have been appointed;
2. if any circumstance should subsequently occur that speak against the appointment;
3. if the member is grossly in breach of an official duty.

The application shall be decided by the Higher Lawyers' Court. Before the decision is taken the Rechtsanwalt must be given a hearing and the opinion of the Council of the Bar must be sought. The decision shall be final.

(3) The Regional Judicial Administration may dismiss a member of the Lawyers' Disciplinary Court for from office on the member's application if the member would be prevented from properly conducting his/her official duties on grounds of health for an unforeseeable time.

(4) The term of office of a member of the Lawyers' Disciplinary Court who is appointed as a honorary judge at a court of higher instance shall end on such an appointment.

BRAO § 96
Composition of the divisions of the Lawyers' Disciplinary Court

The divisions of the Lawyers' Disciplinary Court shall decide on the appointment of their three members including the Presiding Judge.

BRAO § 97
The division of affairs

The division of affairs at the Lawyers' Disciplinary Court shall be governed accordingly by the rules of Part Two and by § 70 para. 1 of the Court Constitution Act (Gerichtsverfassungsgesetz).

BRAO § 98
The registry and the rules of procedure

(1) A registry shall be established at the Lawyers' Disciplinary Court.
(2) The necessary office staff, offices and resources for other pertinent requirements shall be
provided by the Bar.

(3) The administrative supervision of the registry shall be in the hands of the Presiding Judge of the Lawyers' Disciplinary Court; in the case set out in § 92 para. 2 the Managing Presiding Judge shall be responsible for administrative supervision.

(4) The mangagement of the affairs of the Lawyers' Disciplinary Court shall be regulated by rules of procedure to be determined by the members of the Lawyers' Disciplinary Court. They shall require endorsement by the Regional Judicial Administration.

BRAO § 99
Administrative and judicial assistance

(1) The Lawyers' Disciplinary Courts must provide each other with administrative and judicial
assistance.
(2) On request other courts and administrative authorities shall also provide the Lawyers' Disciplinary Court with administrative and judicial assistance. The Lawyers' Disciplinary Courts shall have the same duty towards other courts and authorities.

(3) At the Lawyers' Disciplinary Court requests for judicial assistance may be dealt with by a single member.

Part Two The
Higher Lawyers' Court

BRAO § 100
Formation of the Higher Lawyers' Court

(1) The Higher Lawyers' Court shall be established at the Higher Regional Court. § 92 para. 3 shall apply accordingly.

(2) If there are several Higher Regional Courts in one Land, the government of the Land may, by statutory order, establish the Higher Lawyers' Court for the districts of all or several Higher
Regional Courts at one or several Higher Regional Courts or at the highest Regional Court if such a concentration is expedient to the administration of justice in matters concerning Rechtsanwنlte, particularly to ensure uniform court rulings. The opinions of the Councils of the regional Bars concerned must first be sought.

(3) By agreement of the participating Lنnder the duties assigned to the Higher Lawyers' Court under this Act may be delegated to the Higher Lawyers' Court of a Land that next has jurisdiction, also in respect of the area of another Land.

(4) Several Lنnder may agree to establish a joint Higher Lawyers' Court at the Higher Regional Court or at the highest Regional Court of a Land.

BRAO § 101
The composition of the Higher Lawyers' Court

(1) The Higher Lawyers' Court shall have a President, the required number of further presiding judges and also Rechtsanwنlte and professional judges as further members. The President and the further presiding judges must be qualified to sit as judges.

(2) If necessary, several senates may be formed at the Higher Lawyers' Court. Further arrangements shall be made by the Regional Judicial Administration. The opinion of the Council of the Bar must first be sought.

(3) The persons appointed as President of the Higher Lawyers' Court and as presiding judges of the senates must be Rechtsanwنlte who are members of the Higher Lawyers' Court. § 93 para. 2 shall apply accordingly.

BRAO § 102
Appointment of professional judges as members of the Higher Lawyers' Court

(1) The members of the Higher Lawyers' Court who are professional judges shall be appointed by the Regional Judicial Administration from the permanent members of the Higher Regional Court. They shall serve for a term of four years. In the cases set out in § 100 para. 2 the professional judges may also be appointed from the permanent members of the other Higher Regional Courts or the highest Regional Court.

(2) The members of a joint Higher Lawyers' Court who are professional judges shall be appointed from the permanent members of the Higher Regional Courts of the participating Lنnder, as set out in the agreement made by the Lنnder (§ 100 para. 4).

BRAO § 103
Appointment of Rechtsanwنlte as members of the Higher Lawyers' Court

(1) The members of the Higher Lawyers' Court who are Rechtsanwنlte shall be appointed by the Regional Judicial Administration to serve for a term of four years.

(2) The provisions in §§ 94 and 95 para. 1 shall apply accordingly as regards the appointment of Rechtsanwنlte as members of the Higher Lawyers' Court and as regards the status of the members of this Court who are Rechtsanwنlte. The members who are Rechtsanwنlte may not simultaneously belong to the Lawyers' Disciplinary Court. The office of a member who is a Rechtsanwalt and who is appointed to sit as an honorary judge at a court of another instance shall end on such an appointment. Removal and dismissal from office shall be governed by § 95 paragraphs 2 and 3 on condition that the decision regarding removal from office is taken by a senate of the Higher Lawyers' Court to which the honorary judge does not belong.

(3) In the cases set out in § 61 and § 100 para. 2 the number of members who are Rechtsanwنlte should be in proportion with the number of members of the regional Bars. Rechtsanwنlte belonging to a joint Higher Lawyers' Court shall be appointed from the members of the Bars of the participating Lنnder, as set out in the agreement between the Lنnder (§ 100 para. 4).

(4) Members who are Rechtsanwنlte shall be paid compensation from the state treasury for the expenses incurred in rendering their services. This shall amount to one and a half times the maximum sum set out in § 28 para. 3 sentence 1 first half-sentence of the Federal Scale of Lawyers' Fees. In addition, members who are Rechtsanwنlte shall have the right to be reimbursed for their travelling expenses and accommodation expenses, as set out in § 28 para.s 2 and 3 sentence 2 of the Federal Scale of Lawyers' Fees.

BRAO § 104
Composition of the senates of the Higher Lawyers' Court

The senates of the Higher Lawyers' Court shall decide on the appointment of their five members, including the Presiding Judge. Two further members who are Rechtsanwنlte and two professional judges shall serve as associate judges.

BRAO § 105
Division of affairs and rules of procedure

(1) The rules set out in Part Two and § 70 para. 1 of the Court Constitution Act
(Gerichtsverfassungsgesetz) shall apply accordingly regarding the division of affairs at the Higher Lawyers' Court.

(2) The management of affairs shall be regulated by rules of procedure which shall be determined by the members of the Higher Lawyers' Court; they must be endorsed by the Regional Judicial Administration.

Part three
The Federal Supreme Court in matters concerning the legal profession

BRAO § 106
Composition of the Senate for Matters concerning the Legal Profession

(1) For matters referred to the Federal Supreme Court under this Act a Senate for Matters concerning the Legal Profession shall be formed at the Federal Supreme Court. In as far as the proceedings are governed accordingly by the provisions of the Act concerning Matters of Voluntary Jurisdiction (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit) the Senate shall be a civil senate and in as far as the proceedings are governed accordingly by the provisions of the Code of Criminal Procedure it shall be a punitive senate in the meaning of § 132 of the Court Constitution Act.

(2) The Senate shall consist of the President of the Federal Supreme Court and also three members of the Federal Supreme Court and three Rechtsanwنlte as associate judges. The presiding judge shall be the President of the Federal Supreme Court or, as his/her deputy, a presiding judge selected by the Presidency of the Federal Supreme Court.

BRAO § 107
Rechtsanwنlte as associate judges.

(1) The associate judges who are Rechtsanwنlte shall be appointed by the Federal Ministry of Justice to serve for a term of four years. They may be re-appointed after the their term of office has come to an end.

(2) The associate judges who are Rechtsanwنlte shall be appointed from a list of proposed
candidates which the Presidency of The German Federal Bar submits to the Federal Ministry of Justice on the basis of proposals from the regional Bars. § 94 para. 2 sentence 3 shall apply in addition. The list of proposed candidates should at least contain twice the number of
Rechtsanwنlte.

(3) If an associate judge who is a Rechtsanwalt should prematurely retire from office, a successor shall be appointed for the retiring associate judge's remaining term of office.
(4)

BRAO § 108
Preconditions for appointment as an associate judge and the right to refuse appointment

(1) Only a Rechtsanwalt who is eligible for election to the Council of the Bar may be appointed as an associate judge. (§§ 65, 66).

(2) Associate judges may not at the same time belong to the Council of the Bar, the Lawyers'
Disciplinary Court or the Higher Lawyers' Court nor may they serve full time or part time at the
Bar.

(3) The office of associate judge may be refused for the reasons set out in § 67.

BRAO § 109
Removal from the office of an associate judge

(1) On the application of the Federal Ministry of Justice a Rechtsanwalt shall be removed from the office of associate judge
1. if it subsequently becomes known that this person was not eligible for appointment as an
associate judge,
2. if a circumstance subsequently occurs which stands in the way of an appointment as an associate judge;
3. if a Rechtsanwalt is in gross breach of his/her official duties as an associate judge.

(2) A civil senate of the Federal Supreme Court shall take a decision concerning the application. The members of the Senate for Matters concerning the Legal Profession shall not be party to the decision.

(3) The Rechtsanwalt must be given a hearing before the decision is taken.

BRAO § 110
The status of Rechtsanwنlte as associate judges and the duty of confidentiality

(1) Rechtsanwنlte shall serve as judges in an honorary capacity. They shall have the status of
professional judges in the sessions to which they are called as associate judges.

(2) Rechtsanwنlte shall not disclose any matters that become known to them when serving as
associate judges. § 76 shall apply accordingly. The President of the Federal Supreme Court shall grant permission to testify.

BRAO § 111
Sequence for participation in sessions

Rechtsanwنlte who are appointed as associate judges shall be called to the individual sessions in the sequence shown in a list prepared by the Presiding Judge of the Senate before the commencement of the business year. The opinion of the two most senior Rechtsanwنlte appointed as associate judges must be heard before this list is prepared.

BRAO § 112
Compensation for associate judges who are Rechtsanwنlte

§ 103 para. 4 shall apply accordingly to compensation for the expenses of associate judges who are Rechtsanwنlte and to the reimbursement of their travelling expenses. Part six Sanctions for breaches of duty imposed by the Lawyers' Disciplinary Court

BRAO § 113
Sanctions for breaches of duty

(1) The Lawyers' Disciplinary Court shall impose sanctions on a Rechtsanwalt who is in negligent breach of the duties under this Act or set out in the professional code of conduct.

(2) Conduct on the part of a Rechtsanwalt outside his/her field of professional duties which represents an unlawful act or an act likely to incur a fine shall be considered a breach of duty subject to sanctions by the Lawyers' Disciplinary Court if, in the circumstances of the individual case, it is particularly likely to undermine the respect and trust of persons seeking access to justice in a way that is significant for a Rechtsanwalt's professional practice.

(3) The Lawyers' Disciplinary Court may not impose sanctions if the Rechtsanwalt in question was not subject to the jurisdiction of the Lawyers' Disciplinary Court at the time of the act.

BRAO § 114
Sanctions that may be imposed by a Lawyers' Disciplinary Court

(1) Sanctions that may be imposed by a Lawyers' Disciplinary Court are
1. a warning,
2. a caution,
3. a fine of up to twenty-five thousand euro,
4. a ban on acting as representative and counsel in certain fields of law for a period of between one and five years,
5. exclusion from the legal profession.

(2) A caution and a fine may be imposed in conjunction.

BRAO § 114a
Effects of a ban on acting as representative, contraventions

(1) A Rechtsanwalt who has been banned from acting as representative (§ 114 para. 1 no. 4) may not act as representative and counsel in the particular field of law in question, neither in person or in written communications, neither before a court, before authorities, before an arbitral tribunal nor vis-à-vis other persons. Nor may such a Rechtsanwalt grant powers of attorney or delegate powers of attorney. However such a Rechtsanwalt may defend the interests of his/her spouse or life partner and his/her underage children in as representation by a Rechtsanwalt is not imperative.

(2) The validity of a legal act of the Rechtsanwalt shall not be affected by the ban on acting as
representative. The same applies to legal acts which are carried out vis-à-vis the Rechtsanwalt.

(3) A Rechtsanwalt who knowingly acts in contravention of a ban on acting as representative shall be immediately excluded from the legal profession in as far as the Lawyers' Disciplinary Court is not of the opinion that a less harsh measure would be adequate due to particular circumstances. Courts or authorities shall refuse to hear a Rechtsanwalt who appears before them in contravention of a ban on acting as representative.

BRAO § 115
The limitation period for imposing sanctions for a breach of duty

The possibility of imposing sanctions for a breach of duty which does not justify a sanction under § 114 para. 1 nos. 4 or 5 shall become statute-barred in five years. § 78 para. 1, § 78a sentence 1 and §§ 78b and 78c para.s 1 to 4 of the Criminal Code shall apply accordingly.

BRAO § 115a
Reprimand and sanctions imposed by a Lawyers' Disciplinary Court

(1) The institution of proceedings against a Rechtsanwalt before a Lawyers' Disciplinary Court shall not be obstructed on the grounds that the Council of the Bar has already reprimanded the
Rechtsanwalt for the same conduct (§ 74). If the Lawyers' Disciplinary Court has overruled the
notice of reprimand (§ 74a) because it has not found any negligent breach of duty, proceedings before the Lawyers' Disciplinary Court may only be instituted on grounds of the same conduct if there are facts and evidence that were not known to the Lawyers' Disciplinary Court at the time that such a decision was taken.

(2) The reprimand shall become invalid when the judgment of the Lawyers' Disciplinary Court that is pronounced against the Rechtsanwalt on grounds of the same conduct becomes final and the Rechtsanwalt is acquitted or a sanction is imposed. The reprimand shall also become invalid if the opening of the main proceedings has been finally rejected because no negligent breach of duty was found.

BRAO § 115b
Sanctions imposed elsewhere

If a punishment, a disciplinary sanction, a sanction imposed by a disciplinary court for a profession or a disciplinary action has been imposed by a court or an authority, no proceedings shall be instituted before a Lawyers' Disciplinary Court on grounds of the same conduct as long as no additional sanctions are necessary from the Lawyers' Disciplinary Court in order to compel the Rechtsanwalt to perform his/her duties and to protect the standing of the legal profession. A punishment or a sanction imposed elsewhere shall not stand in the way of a sanction being imposed under § 114 para. 1 nos. 4 or 5.

BRAO § 115c
Rules for managing directors of Rechtsanwaltsgesellschaften

The rules in Chapters Six and Seven, §§ 195 to 199 and the rules set out in the Chapter Eleven shall apply accordingly to persons who belong to a Bar in accordance with § 60 para. 1 sentence 2. Instead of being excluded from the legal profession, the person concerned shall be denied recognition as a suitable person to head a Rechtsanwaltsgesellschaft and to manage its business.

Chapter seven
Rules of procedure for a Lawyers' Disciplinary Court

Part one
General

BRAO § 116
Rules of procedure

The following rules of procedure shall apply to a Lawyers' Disciplinary Court. The Court Constitution Act and the Code of Criminal Procedure shall also apply mutatis mutandis.

BRAO § 117
Protection from arrest

A Rechtsanwalt may not be provisionally detained or arrested nor brought before court in order for disciplinary proceedings to be conducted. A Rechtsanwalt may not be sent to a psychiatric hospital in order for a report to be prepared on his/her state of mental health.

BRAO § 117a
Defence

§ 140 para. 1 nos. 1 to 3, 6 and 7 of the Code of Criminal Procedure shall not apply to the defence of a Rechtsanwalt in proceedings before a Lawyers' Disciplinary Court.

BRAO § 117b
Inspection of files

The Council of the Bar and a Rechtsanwalt who is accused of a breach of duty shall have the right to inspect the files that have been submitted to the court or which would have to be submitted if a writ of accusation were to be filed. They may also view any pieces of evidence kept by the authorities. § 147 para.s 2, 3, 5 and 6 of the Code of Criminal Procedure shall apply accordingly regarding the inspection of the files by the Rechtsanwalt.

BRAO § 118
Relationship between proceedings before a Lawyers' Disciplinary Court and criminal
proceedings or proceedings for the imposition of a fine

(1) If criminal proceedings before a public court are instituted against a Rechtsanwalt who has been accused of a breach of duty, proceedings before a Lawyers' Disciplinary Court may still be instituted against this Rechtsanwalt on grounds of the same conduct, but they must be suspended until the conclusion of the criminal proceedings. If proceedings before a Lawyers' Disciplinary Court have already been commenced they must be suspended if criminal proceedings are instituted during the course of these proceedings. Proceedings before a Lawyers' Disciplinary Court shall be continued if it seems certain that the matter can be clarified so that no contradictory decisions are likely or if no hearing can be held in the criminal proceedings for personal reasons concerning the Rechtsanwalt.

(2) If the Rechtsanwalt is acquitted of a criminal offence or a breach of administrative rules in court proceedings, proceedings before a Lawyers' Disciplinary Court may only be instituted or continued on the basis of the same facts underlying the court decision, if these facts mean a breach of duty on the part of the Rechtsanwalt concerned, without there being sufficient evidence to convict the Rechtsanwalt of a criminal offence or to impose a fine

(3) The Lawyers' Disciplinary Court shall be bound by the actual findings underlying the judgment in the criminal proceedings or in the proceedings for the imposition of a fine. However such findings may be reviewed in the proceedings before the Lawyers' Disciplinary Court if a majority of the court's members have doubts concerning their accuracy; this must be stated in the reasons given for the decision taken by the Lawyers' Disciplinary Court.

(4) If proceedings before a Lawyers' Disciplinary Court are continued in accordance with para. 1 sentence 3, it shall also be permissible to re-open proceedings in which a final decision has been taken if the actual findings on which the conviction or the acquittal was based contradict the findings in the criminal proceedings. The petition to re-open the proceedings may be filed by the Public Prosecutor's office or by the Rechtsanwalt within one month of the judgment in the criminal proceedings becoming final.

BRAO § 118a
Relationship between proceedings before a Lawyers' Disciplinary Court and proceedings
before other disciplinary courts for professions

(1) If a Rechtsanwalt is also subject to the jurisdiction of another court in a disciplinary action, a matter of honour or a matter of professional ethics involving a different profession, it shall be the Lawyers' Disciplinary Court that shall take the decision regarding a breach of duty unless the breach of duty has primarily been committed in practising a different profession. This does not apply to disbarment or exclusion from the other profession.

(2) If the Public Prosecutor's office intends to institute proceedings against such a Rechtsanwalt before a Lawyers' Disciplinary Court, it shall notify this to the Public Prosecutor's office or to the authority that would be responsible for instituting proceeding against the Rechtsanwalt as a member of the other profession. If the Public Prosecutor's office or initiating authority that is responsible for the other profession intends to institute proceedings against the Rechtsanwalt, it shall notify this to the Public Prosecutor's office that would be responsible for instituting proceedings against the Rechtsanwalt before a Lawyers' Disciplinary Court (§§ 120, 163 sentence 3).

(3) If a court in a disciplinary matter, a matter concerning a matter of honour or of professional ethics has already declared with final effect that it has or does not have jurisdiction to take a decision regarding the breach of duty by a Rechtsanwalt who may simultaneously be subject to the jurisdiction of another court in a disciplinary matter, a matter of honour or a matter of professional ethics, the other courts shall be bound by this decision.

(4) Para.s 1 to 3 do not apply to Rechtsanwنlte in public service who are not allowed to practise as a Rechtsanwalt (§ 47).

(5) This shall have no bearing on § 110 of the Federal Notary Code (Bundesnotarordnung).

BRAO § 118b
Suspension of proceedings before a Lawyers' Disciplinary Court

Proceedings before a Lawyers' Disciplinary Court may be suspended if a decision has to be taken in other statutory proceedings regarding a question whose assessment is of major significance for the decision in the proceedings before the Lawyers' Disciplinary Court.

Proceedings in the first instance

Part two

1. General rules

BRAO § 119
Jurisdiction

(1) In the first instance the court that shall have jurisdiction for the proceedings against a
Rechtsanwalt shall be the Lawyers' Disciplinary Court.

(2) The local jurisdiction of the Lawyers' Disciplinary Court shall be determined according to the seat of the Bar to which the Rechtsanwalt belongs when proceedings are instituted.

BRAO § 120
Involvement of the Public Prosecutor's office

The Public Prosecutor's office at the Higher Regional Court in whose district the Lawyers' Disciplinary Court has its seat (§ 119 para. 2) shall act as Public Prosecutor in the proceedings before the Lawyers'

Disciplinary Court.

BRAO § 120a
Mutual notification by the Public Prosecutor's office and the Bar

The Public Prosecutor's office and the Council of the Bar shall notify each other as soon as they become aware of any conduct on the part of a Rechtsanwalt which gives grounds to suspect a negligent breach of duty that may be penalised by sanctions imposed by a Lawyers' Disciplinary Court under § 114 para. 1 nos. 3 to 5.

2. The institution of proceedings

BRAO § 121
Institution of proceedings before a Lawyers' Disciplinary Court

The proceedings before a Lawyers' Disciplinary Court shall be instituted by the Public Prosecutor's office submitting a writ of accusation to the Lawyers' Disciplinary Court.

BRAO § 122
Court decision regarding the institution of proceedings

(1) If the Public Prosecutor's office does not comply with an application of the Council of the Bar to institute proceedings against a Rechtsanwalt before a Lawyers' Disciplinary Court or if it orders the proceedings to be closed, it shall notify its decision to the Council of the Bar, stating the reasons.

(2) The Council of the Bar may petition the Higher Lawyers' Court for a ruling invalidating the notice of the Public Prosecutor's office within one month of its announcement. The petition must indicate the facts which allegedly justify the institution of proceedings before a Lawyers' Disciplinary Court and evidence must be provided.

(3) If the Public Prosecutor's office takes no decision under para. 1 within one month of the petition of the Council of the Bar to institute proceedings against a Rechtsanwalt before a Lawyers' Disciplinary Court and if it does not file a writ of accusation within this period of time, it shall give the Council of the Bar the opportunity to give its opinion. If the Council of the Bar has indicated within three weeks that it considers it necessary and possible to expedite the conclusion of the investigations, stating the reasons, and if the Public Prosecutor's office takes none of the decisions set out sentence 1 within a further two months, the Council of the Bar may petition the Higher Lawyers' Court for a ruling concerning the institution of proceedings before a Lawyers' Disciplinary Court. Para. 2 sentence 2 shall apply. The petition shall only be admissible if there is a suspicion of such a serious breach of duty that the imposition of the sanctions set out in § 114 para. 1 nos. 3 to 5 comes into consideration.

(4) The proceedings before the Higher Lawyers' Court shall be governed by §§ 173 to 175 of the Code of Criminal Procedure in corresponding application.

(5) § 172 of the Code of Criminal Procedure is not applicable.

BRAO § 123
Petition by a Rechtsanwalt for the institution of proceedings before a Lawyers' Disciplinary
Court

(1) A Rechtsanwalt may petition the Public Prosecutor's office for proceedings to be brought against him/her before a Lawyers' Disciplinary Court so that the Rechtsanwalt may clear his/her reputation of the suspicion of having committed a breach of duty. A Rechtsanwalt may not make such a petition on grounds of behaviour for which a fine has been threatened or set (§ 57) or for which he/she has received a reprimand from the Council of the Bar (§ 74).

(2) If the Public Prosecutor's office does not grant the Rechtsanwalt's petition or if it orders the
proceedings to be closed, it shall notify its decision to the Rechtsanwalt, stating the reasons. If the reasons show that a negligent breach of duty has been found, but no proceedings are instituted before a Lawyers' Disciplinary Court or if it is left open whether there has been a negligent breach of duty, the Rechtsanwalt may petition the Higher Lawyers' Court for a ruling. The petition must be filed within one month of the announcement of the decision taken by the Public Prosecutor's office.

(3) § 173 para.s 1 and 3 of the Code of Criminal Procedure shall apply accordingly in the proceedings before the Higher Lawyers' Court. The Higher Lawyers' Court shall pronounce a ruling determining whether the Rechtsanwalt has committed a negligent breach of duty. Reasons must be given for the decision. If the Higher Lawyers' Court considers that there is sufficient evidence of a breach of duty which is punishable by sanctions from a Lawyers' Disciplinary Court, it shall order that proceedings shall be instituted before a Lawyers' Disciplinary Court. The Public Prosecutor's office shall be responsible for enforcing this decision.

(4) If the Higher Lawyers' Court does not consider that there has been a negligent breach of duty, a petition for the institution of proceedings before a Lawyers' Disciplinary Court may only be made or a reprimand may only be issued by the Council of the Bar on grounds of the same behaviour if new facts or evidence come to light.

BRAO §§ 124 - 129

BRAO § 130
Contents of the writ of accusation

The writ of accusation (§ 121 of this Act and § 207 para. 3 of the Code of Criminal Procedure) must indicate the breach of duty of which the Rechtsanwalt is accused stating the substantiating facts (the charge). Furthermore the evidence must be indicated if evidence is to be adduced in the main proceedings. The writ of accusation shall contain the petition to open the main proceedings before the Lawyers' Disciplinary Court.

BRAO § 131
Decision regarding the opening of the main proceedings before the Lawyers' Disciplinary
Court

(1) In the ruling opening the main proceedings, the Lawyers' Disciplinary Court shall admit the charge to the main proceedings.

(2) The Rechtsanwalt may not challenge the ruling opening the main proceedings.

(3) A ruling rejecting the opening of the main proceedings must be substantiated. The Public
Prosecutor's office shall have the right to file an immediate appeal against such a ruling.

BRAO § 132
Legal effect of a negative ruling

If a non-appealable ruling has been made rejecting the opening of the main proceedings, the petition for the institution of proceedings before a Lawyers' Disciplinary Court may only be resubmitted if new facts and evidence come to light. This may only be done within five years of the ruling becoming final.

BRAO § 133
Service of the ruling opening the main proceedings

The ruling concerning the opening of the main proceedings must be served on the Rechtsanwalt by no later than the time that he/she receives the summons. In the cases set out in § 207 para. 3 of the Code of Criminal Procedure the same shall apply regarding the subsequently submitted writ of accusation.

3. The main proceedings before the Lawyers' Disciplinary Court

BRAO § 134
Main proceedings notwithstanding the absence of the Rechtsanwalt

The main proceedings may be conducted in a Rechtsanwalt's absence if the Rechtsanwalt has been properly summoned and it was pointed out in the summons that the proceedings may proceed in the Rechtanwalt's absence. A public summons is not permissible.
BRAO § 135 Main proceedings in camera

(1) The main proceedings before the Lawyers' Disciplinary Court shall be held in camera. On the petition of the Public Prosecutor's office the proceedings may be held in public; on the petition of the Rechtsanwalt they must be held in public; in this case the provisions of the Court Constitution Act (Gerichtsverfassungsgesetz) concerning the public shall apply mutatis mutandis.

(2) Representatives of the Regional Judicial Administration, the President of the Higher Regional Court or his/her deputy, the civil servants of the Public Prosecutor's office at the Higher Regional Court and the Rechtsanwنlte of the Bar shall be admitted to proceedings held in camera. The Lawyers' Disciplinary Court may also admit other persons as observers after seeking the opinion of the parties involved.

BRAO § 136 -

BRAO § 137
Taking of evidence by an instructed or requested judge

The Lawyers' Disciplinary Court may instruct one of its members to interrogate witnesses or experts. It may also request another Lawyers' Disciplinary Court or the Local Court to conduct the interrogation. However on the petition of the Public Prosecutor's office or of the Rechtsanwalt the witness or the expert must be interrogated in the main proceedings unless the person concerned is likely to be unable to attend the main proceedings or cannot be reasonably expected to do so because the distance is too great.

BRAO § 138
The reading out of statements

(1) The Lawyers' Disciplinary Court shall decide in due assessment of the circumstances whether to read out the statement of a witness or an expert who has already been interrogated in proceedings before the Lawyers' Disciplinary Court or in other proceedings prescribed by law.

(2) Before the court takes a decision the Public Prosecutor or the Rechtsanwalt may make a petition for the witness or the expert to be interrogated in the main proceedings.
Such a petition must be granted unless the witness or the expert is likely to be unable to attend the main proceedings or if the person concerned cannot reasonably be expected to attend because the distance is too great. If the petition is granted, the records concerning the earlier interrogation will not be read out.

(3) If a witness or an expert has been interrogated by an instructed or requested judge (§ 137), no objection may be made to the recorded statements being read out. However the Public Prosecutor or the Rechtsanwalt may object to these statements being read out if a petition in accordance with § 137 sentence 3 has been rejected and there are no longer any grounds for such a rejection.

BRAO § 139
Decision of the Lawyers' Disciplinary Court

(1) The main proceedings shall conclude with the pronouncement of the judgment following the
hearing.

(2) The judgment shall pronounce an acquittal, a conviction or an announcement that the proceedings have been closed.

(3) With the exception of the case set out in § 260 para. 3, the hearing before the Lawyers'
Disciplinary Court shall be closed,
1. if the Rechtanwalt's admission to the legal profession has expired or been withdrawn or revoked (§§ 13 to 16);
2. if there is no case to answer before a Lawyers' Disciplinary Court under § 115b.

BRAO § 140
Court recorder

(1) In the main proceedings before the Lawyers' Disciplinary Court the duties of the
court recorder shall be performed by a Rechtsanwalt. The court recorder shall be appointed by the Presiding Judge or, in the case of a Lawyers' Disciplinary Court with several divisions, by the Managing Presiding Judge. The court recorder has a duty to accept such an appointment.

(2) Before the court recorder serves for the first time, the Presiding Judge of the division of the
Lawyers' Disciplinary Court shall, through a handshake, make the person concerned undertake to conscientiously perform the duties of a court recorder.

(3) The court recorder must treat all matters that come to his/her knowledge in performing his/her duties as completely confidential and must not disclose them to anyone. § 76 shall apply accordingly. Approval to make a statement shall be granted by the Presiding Judge of the division of the Lawyers' Disciplinary Court.

BRAO § 141
Copies of the decisions

Copies and excerpts from the decisions of the Lawyers' Disciplinary Court shall be issued by the Presiding Judge of the division.

Part three
Appeals to higher courts

1. Appeals to higher courts challenging decisions of the Lawyers' Disciplinary Court

BRAO § 142
Appeals (Beschwerde)

In as far as decisions of the Lawyers' Disciplinary Court may be challenged by means of an appeal (Beschwerde) the Higher Lawyers' Court shall have jurisdiction to hear such an appeal and take a decision.

BRAO § 143
Appeals on questions of facts and law (Berufung)

(1) An appeal on questions of fact and law (Berufung) challenging a judgment of a Lawyers'
Disciplinary Court may be made to the Higher Lawyers' Court.

(2) The appeal must be filed before the Lawyers' Disciplinary Court within one week of the
announcement of the judgment. If the judgment has not been pronounced in the Rechtanwalt's
presence, the set term for the Rechtsanwalt shall start to run on the date of service.

(3) The appeal may only be substantiated in writing.

(4) The proceedings shall be governed by the rules set out in the Code of Criminal Procedure
concerning appeals on questions of fact and law. §§ 134, 135, 137 to 139 of this Act shall also apply mutatis mutandis. If a Rechtsanwalt has filed such an appeal and is absent from the main proceedings, § 329 para. 1 sentences 1 and 2 and para. 3 of the Code of Criminal Procedure shall apply accordingly if the Rechtsanwalt has been properly summoned and the legal consequences of his/her absence have been pointed out in the summons; this shall not be the case if the Rechtsanwalt has been summoned by public announcement.

BRAO § 144
Involvement of the Public Prosecutor's office in proceedings before the Higher Lawyers'
Court

The duties of Public Prosecutor in proceedings before the Higher Lawyers' Court shall be performed by the Public Prosecutor's office at the Higher Regional Court or the highest Regional Court where the Higher Lawyers' Court is established.

2. Appeals to higher courts challenging judgments of the Higher Lawyers' Court

BRAO § 145
Appeals on questions of law (Revision)

(1) It is permissible to file an appeal on a question of law (Revision) to the Federal Supreme Court challenging a judgment of the Higher Lawyers' Court,
1. if the judgment imposes a sanction as defined in § 114 para. 1 no. 4 or 5;
2. if the Higher Lawyers' Court, contrary to a petition from the Public Prosecutor's office, has not taken a judicial decision concerning a sanction as defined in § 114 para. 1 no. 4 or 5;
3. if the Higher Lawyers' Court has allowed such an appeal in its judgment.

(2) The Higher Lawyers' Court may only allow an appeal on a question of law if it has taken a decision concerning questions of law or questions in relation to a Rechtanwalt's professional duties which are of fundamental importance.

(3) The non-admissibility of an appeal on a question of law may be independently challenged by means of an appeal (Beschwerde) within one month of the judgment having been served. This appeal must be filed before the Higher Lawyers' Court. The statement of appeal must expressly state the fundamental question of law.

(4) The appeal (Beschwerde) shall suspend the judgment so that it does not become final.

(5) If no redress is granted, the Federal Supreme Court shall take a decision by making a ruling. No reasons must be given for the ruling if the appeal has been unanimously rejected or dismissed. If the appeal is rejected by the Federal Supreme Court, the judgment shall become final. If the appeal is granted, the time limit for lodging the appeal on a question of law shall start to run on the service of the notice of appeal.

BRAO § 146
Lodging an appeal on a question of law and procedure

(1) The appeal on a question of law must be submitted in writing to the Higher Lawyers' Court within one week. The set term shall start to run on the pronouncement of the judgment. If the judgment has not been pronounced in the presence of the Rechtsanwalt, the set term shall start to run for the Rechtsanwalt on the service of the judgment.

(2) The Rechtsanwalt may only submit written appeals on questions of law and written statements of the reasons for the appeal.

(3) In addition to the provisions of the Code of Criminal Procedure concerning appeals on questions of law, §§ 135 and 139 para. 3 of this Act shall apply accordingly to the proceedings before the Federal Supreme Court. In the cases set out in § 354 para. 2 of the Code of Criminal Procedure the matter may also be referred back to the Higher Lawyers' Court of a different Land.

BRAO § 147
Involvement of the Public Prosecutor's office before the Federal Supreme Court

The duties of Public Prosecutor in proceedings before the Federal Supreme Court shall be performed by the Federal Public Prosecutor.
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