Iranian Bar Associations

ATTORNEYSHIP LAW/CODE(Page 15)
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* The Federal Lawyer Act of Germany - section 5 of 5
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* The Federal Lawyer Act of Germany - section 5 of 5

BRAO 200 to end.

BRAO § 200
Application of the Code of Costs (Kostenordnung)

In proceedings that are held in the case of petitions to a court in matters concerning admission and in the case of petitions to declare an election invalid or court rulings to be null and void (§§ 37 to 42, 91, 191), fees and disbursements shall be charged according to the Code of Costs. However § 8 para.s 2 and 3 of the Code of Costs shall not apply.

BRAO § 201
The cost liability of the petitioner and of the Bar

(1) If a petition to the court is withdrawn, dismissed or rejected as being inadmissible, the petitioner shall be ordered to bear the costs of the proceedings.

(2) If a petition to the court decision is granted, the costs of the proceeding shall be imposed on the Bar in the case set out in § 38; no fees and disbursements shall be charged in the case set out in § 39.

(3) If a petition to declare an election invalid or a court ruling to be null and void is granted (§§ 91, 191), the costs of the proceedings shall be imposed on the Bar.

BRAO § 202
Fee for the proceedings

(1) The full fee shall be charged for the court proceedings in the first instance.
(2) The value of the matter at issue shall be determined according to § 30 para. 2 of the Code of Costs. It shall be set ex officio.

(3) The same fee shall be charged for the appeal proceedings as is charged in the first instance.

(4) If a petition or an appeal is withdrawn before the court has taken a decision, the fee shall be reduced to half of the full fee. This shall also be the case if the petition or an appeal is dismissed as being in admissible.

BRAO § 203
Decision concerning special appeals

(1) Decisions concerning objections and special appeals against the setting of costs shall always be taken by the Higher Lawyers' Court.

(2) The decision taken by the Higher Lawyers' Court cannot be challenged.

Chapter Eleven
The enforcement of sanctions decided by the Lawyers' Disciplinary Court
and collection of costs. Deletion of entries in personal files

BRAO § 204
Enforcement of sanctions decided by the Lawyers' Disciplinary Court

(1) The exclusion of a Rechtsanwalt from the legal profession (§ 114 para. 1 no. 5) shall become effective when the judgment become final . The excluded person shall be deleted from the List of Rechtsanwنlte on the basis of an authenticated copy of the judgment certified as final.

(2) Warnings and cautions (§ 114 para. 1 nos. 1 and 2) shall be deemed enforced when the judgment becomes final.

(3) A fine (§ 114 para. 1 no. 3) shall be enforced on the basis of a copy of the decision certified as final and issued by the Presiding Judge of the division of the Lawyers' Disciplinary Court in accordance with the rules that apply to the enforcement of judgments in civil litigation. The fine shall accrue to the Bar. Enforcement shall be the task of the Bar.

(4) The fact that a Rechtsanwalt has left the legal profession after the proceedings have been closed and the decision is final shall be no reason why the fine may not be collected.

(5) The ban on acting as representative and counsel in certain areas of law (§ 114 para. 1 no. 4) shall become effective when the judgment becomes final. The period of time covered by any provisional ban that has been ordered under § 150 or § 161a shall be counted as part of the period for which the ban is imposed.

BRAO § 205
Collection of costs

(1) The costs incurred in proceedings before the Lawyers' Disciplinary Court shall be collected on the basis of the ruling setting the costs (§ 199) in accordance with § 204 para. 3.

(2) The costs incurred before the Higher Lawyers' Court or the Federal Supreme Court shall be collected in accordance with the rules regarding the collection of court costs. The costs incurred before the Higher Lawyers' Court shall be collected by the enforcement authority responsible for the Higher Regional Court where the Higher Lawyers' Court is established.

(3) § 204 para. 4 shall apply accordingly.

BRAO § 205a
Deletion of entries in personal files

(1) Entries in a Rechtanwalt's personal files with regard to a warning shall be deleted after five years; entries regarding a caution or a fine shall be deleted after ten years, even if they have been imposed conjointly. Any matters concerning these sanctions imposed by the Lawyers' Disciplinary Court shall be removed from the Rechtanwalt's personal files and destroyed. After the expiry of the time limit these sanctions may no longer be taken into account if further disciplinary sanctions are imposed.

(2) The set term shall start to run on the date when the disciplinary sanction becomes
unchallengeable.

(3) The set term shall not end as long as criminal proceedings, proceedings before a Lawyers'
Disciplinary Court or a professional tribunal or other disciplinary proceedings are pending against the Rechtsanwalt or if another sanction of a professional tribunal may be taken into account (or a disciplinary sanction for Rechtsanwنlte who are also notaries (Anwaltsnotare)), or if a judgment imposing a fine has not yet been enforced.

(4) After the expiry of the time limit the Rechtsanwalt shall be deemed to be no longer affected by disciplinary sanctions imposed by a Lawyers' Court

(5) Para.s 1 to 4 shall apply accordingly to reprimands from the Council of the Bar. The time limit shall be five years.

(6) Entries concerning criminal convictions or other decisions in criminal proceedings, breaches of administrative rules or a breach of professional duties which have not resulted in a disciplinary sanction or a reprimand and admonitions from the Bar shall be deleted after five years on the Rechtanwalt's request. Para. 1 sentence 2 and para.s 2 and 3 shall apply accordingly.

Chapter Twelve
Lawyers from other countries

BRAO § 206
Establishment

(1) A person from a member state of the World Trade Organisation who practises a profession and who, in terms of training and rights, satisfies the definition of a Rechtsanwalt under this Act shall have a right of establishment in Germany and may use the professional title of his/her country of origin. Such a person shall have the right to provide legal services in the fields of law of his/her country of origin and in international law, if he/she, on application, has been accepted by the Bar responsible for the locality where he/she is established. The Federal Ministry of Justice shall have powers to determine by statutory order and without the consent of the Upper House of Parliament which professions are equivalent to the profession of ''Rechtanwalt'' under this Act in terms of training and rights.

(2) Para. 1 shall apply accordingly to nationals from other states who practise a profession which is equivalent to that of a Rechtsanwalt under this Act in terms of training and rights on condition that the right to offer legal services is limited to the law of this person's country of origin, if reciprocity with the country of origin is guaranteed. The Federal Ministry of Justice shall have powers to determine by statutory order and without the consent of the Upper House of Parliament the states for whose nationals this rule shall apply and for which professions.

BRAO § 207
Procedure, professional status

(1) The decision regarding an application for admission to the Bar shall be taken by the Regional Judicial Administration. A certificate from the responsible authority in the country of origin stating that the person in question is a member of the profession must be submitted with the application. This certificate must be resubmitted to the Regional Judicial Administration every year. If the member of the Bar fails to comply with this duty or if the preconditions in § 206 are no longer met, admission to the Bar shall be revoked.

(2) Chapter Two of this Act shall apply mutatis mutandis to the decision regarding the application, the Rechtsanwalt's legal status after admittance to the Bar and the withdrawal and revocation of rights of admittance to the Bar, with the exception of §§ 4 to 6, 12, 18 to 27 and 29 to 36. Chapters Three, Four, Six, Seven, Ten, Eleven and Thirteen shall likewise apply. Bans on acting as counsel under § 114 para. 1 no. 4 and §§ 150 and 161a must be imposed in respect of the area in which this Act is in force. Exclusion from the legal profession (§ 114 para. 1 no. 5) shall be replaced by a ban on offering foreign legal services in the area in which this Act is in force; when this decision becomes final, the convicted person shall cease to be a member of the Bar.

(3) The Rechtsanwalt must establish a law practice in the district of the Bar where the Rechtsanwalt has been admitted. If the Rechtsanwalt fails to comply with this duty within three months after being admitted to the Bar or if the Rechtsanwalt abandons the law practice, admission to the Bar shall be revoked.

(4) The Rechtsanwalt must indicate his/her country of origin in his/her professional title. The
Rechtsanwalt shall also have the right to use the title ''Member of the Bar'' in professional
dealings.

Chapter Thirteen
Transitional and final provisions

BRAO §§ 206 and 207

Part one
Transitional provisions

BRAO § 208
Applicants who are qualified for the higher administration service

Applicants who, at the time that this Act came into force, had the right to take full-time judicial office at a court of general administrative jurisdiction by virtue of having passed the prescribed examinations may not be denied admission to the legal profession simply because they do not meet the precondition set out in § 4.

BRAO § 209
The right of holders of a licence under the Law on Legal Advice (Rechtsberatungsgesetz) to
be members of a Bar

(1) Natural persons who are in possession of a full licence to provide professional legal services or are in possession of a licence excluding only the provision of professional legal services in the field of social law or social security law shall, on application, be admitted to the Bar that is responsible for the locality where they are established. They may also call themselves ''Member of the Bar'' in professional dealings. Chapter Two of this Act shall apply mutates mutandis as regards the decision concerning the application, status after admission to the Bar and the invalidation or expiry of the licence, that is with the exception of sections 4 to 6, 12, 18 to 27 and 29 to 36. Chapters Three, Four, Six, Seven, Ten, Eleven and Thirteen shall likewise apply. The holder of the licence may draw attention to special expertise in of the areas mentioned in § 43c para. 1 sentence 2 by adding the word ''Fachgebiet'' (area of specialisation) indicating no more than two of the areas of law provided for in § 43c para. 1 sentence 2.

(2) Admission to the Bar shall be revoked on the application of the holder of the licence. The
revocation shall not affect the licence to offer professional legal services. The decision regarding the revocation shall be suspended as long as disciplinary proceedings before a Lawyers' Court are pending against the holder of the licence.

(3) If there is any change in the place of establishment, only the locality shown on the licence shall be altered, on the application of the holder of the licence. The alteration shall be ordered by the Judicial Administration of the Land in which the new place of establishment is located; § 33 para. 2 shall apply mutatis mutandis. As soon as the alteration has been made, the holder of the licence shall become a member of the regional Bar which is responsible for the new locality.

(4) Licences for branch offices or for holding external consulting days and that are granted under § 1 para. 1 sentence 2 of the Statutory Order on the Implementation of the Law on Legal Advice (Verordnung zur Ausführung des Rechtsberatungsgesetzes) of 13 December 1935 (Reich Gazette I p. 1481) shall not be affected. The Regional Judicial Administration may revoke this licence if this is in the interests of the administration of justice.

(5) The Regional Judicial Administration may revoke the licence to offer professional legal services if the holder of the licence has not practised his/her profession in the locality where he/she is established for more than three months and his/her place of abode is not known.

BRAO § 210
Former licences to bear the title of ''Specialised Lawyer'' (Fachanwalt)

Rechtsanwنlte who were permitted by the Bar to call themselves a ''Specialised Lawyer'' (Fachanwalt) for administrative law, taxation law, labour law or social law when the Act Altering the Professional Rights of Notaries and Rechtsanwنlte (Gesetz zur نnderung des Berufsrechts der Notare und der Rechtsanwنlte) of 29 January 1991 (Federal Gazette. I p. 150) came into force need provide no further evidence that they have the necessary expertise in this area.

BRAO § 211
Insignificant convictions

When a decision is taken concerning an application for admission to the legal profession a conviction may not be taken into consideration as a reason for refusal (§ 7 nos. 2 to 4) if it was imposed between 30 January 1933 and 8 May 1945 and was based purely or primarily on racist, political or religious grounds.

BRAO § 212
Subsequent admission before a court

(1) If a Rechtsanwalt had his/her place of residence or place of permanent abode in the area in which this Act is in force at the time it came into force and wishes to practise here as a Rechtsanwalt, but is not yet admitted before a court in the area in which this Act is in force, such a Rechtsanwalt shall apply for this admission (§ 18 para. 1) within three months after this Act comes into force. If the Rechtsanwalt in question fails to do this within one year, his/her admission to the legal profession shall expire; however if proceeding under 40 et seq. are pending at this time, admission shall not expire until the application for admission before a court has finally been rejected.

(2) Para. 1 shall apply accordingly if a Rechtsanwalt does not establish his/her place of residence or place of permanent abode in the area in which this Act is in force until after it has come into force. The set term mentioned in para. 1 shall start to run on the date that the Rechtsanwalt establishes his/her place or residence or place of permanent abode.

(3) A Rechtsanwalt who has his/her place of residence or place of permanent abode in the area in which this Act is in force and has not yet been admitted before a court in this area shall belong to the Bar in whose district such a Rechtsanwalt has his/her place of residence or permanent place of abode, as long as his/her admission to the legal profession under para. 1 or para. 2 has not yet expired. However during this time the Rechtsanwalt is not obliged to pay dues to the Bar.

BRAO § 213
Exemption from the duty to take up residence

(1) Rechtsanwنlte or applicants who were forced to leave the country during the period between 30 January 1933 and 8 May 1945 for reasons of racism, politics or religion and who are still resident abroad shall be exempt from the obligations set out in § 27.

(2) In the cases set out in para. 1 an applicant who cannot be reasonably expected to appear to be sworn before a court where he/she is admitted soon after being admitted to the legal profession may also take the oath (§ 26) before a German consul who is authorised to accept oaths. The court must request the consul to accept the oath. Furthermore § 26 shall apply accordingly..

BRAO § 214

BRAO § 215
Continuation of Bars

(1) Bars existing at the time that the Federal Lawyer's Act came into force and which did not have their seat in the locality where a Higher Regional Court sits shall continue to exist in as far as one of these Bars does not decide to dissolve itself within six months of this Act coming into force.

(2) Bars existing on 8 September 1998 in the Lنnder of Brandenburg, Mecklenburg-Vorpommerania, Saxony , Saxony-Anhalt and Thuringia whose seat was not situated in the locality where the Higher Regional Court sits, in departure from § 60 para. 2, shall continue to exist.

BRAO §§ 216 to 220

BRAO § 221
The German Federal Bar as an ''Aufnahmeeinrichtung''

The German Federal Bar is an ''entsprechende Einrichtung'' in relation to the Bar of the Reich in the meaning of § 61 of the Act Regulating the Legal Relations of Persons Who Come within the Scope of Article 131 of the Basic Law (Gesetz zur Regelung der Rechtsverhنltnisse der unter Artikel 131 des Grundgesetzes fallenden Personen), as amended on 11 September 1957 (Federal Gazette I p. 1297) (number 54 in Schedule A on § 2 para. 1 of the said Act). The highest administrative authority is the Federal Ministry of Justice.

BRAO § 222

Part two
Final provisions

BRAO § 223
Supplementary provisions concerning legal protection

(1) Administrative acts performed under this Act or under a statutory order passed under this Act may be challenged by applying for a ruling from a Laywers' Disciplinary Court, even if this is not expressly provided for. The petition must be filed within one month after notice of the
administrative act has been served. It may only be substantiated by the claim that the
administrative act has encroached on the applicant's rights because the act in question is
unlawful. § 39 para. 3 shall apply accordingly.

(2) The petition to the court shall also be admissible if no decision has been taken within three
months concerning an application for an administrative act without there being adequate grounds for such inaction. The application shall be admissible for an unlimited period of time.

(3) An immediate appeal to the Federal Supreme Court shall be admissible against the decision of the Higher Lawyers' Court if the Higher Lawyers' Court has allowed the appeal in its judgment. The Higher Lawyers' Court may only allow an immediate appeal if it has taken a decision on questions of law which are of fundamental importance.

(4) Sections 37 and 39 to 41 shall apply accordingly regarding the proceedings before the Higher Lawyers' Court; § 42 para.s 4 to 6 shall apply accordingly regarding proceedings before the Federal Supreme Court and §§ 200 to 203 shall apply accordingly in relation to the costs.

BRAO § 224
Delegation of rights to subordinate authorities

The Federal Ministry of Justice and the Regional Judicial Administration may delegate duties and rights granted to them under this Act to subordinate authorities.

BRAO § 224a
Delegation of rights to the Bar

(1) The governments of the Lنnder shall have powers to issue statutory orders partially or fully
delegating the rights and duties granted to the Regional Judicial Administration under this Act to the regional Bars; this does not apply to decisions in accordance with the First and Third Parts of Chapter Four and in accordance with the First and Second Parts of Chapter Five of this Act. The governments of the Lنnder may delegate such powers to the Regional Departments of Justice by way of statutory order.

(2) In as far as such powers have been delegated, the Bar shall be responsible for investigating the matter (§ 36a). For this purpose it may also request unlimited information as a normal request under § 41 para. 1 of the Federal Central Register Act (Bundeszentralregistergesetz). The hearing provided for in individual proceedings, expert opinions or notification of the Bar shall not be required.

(3) The Bar shall inform the court before which a Rechtsanwalt is admitted of the Rechtanwalt's admission to the legal profession, the withdrawal or revocation of the Rechtanwalt's admission to the legal profession (§§ 31 and 36), the death of a Rechtsanwalt, the grant of any licence and its revocation under § 28 para.s 1 and 2 and of any dispensation and revocation of such under § 29 para.s 1 and 2 and § 29a para.s 2 and 3 sentence 2.

If a Rechtsanwalt also belongs to a Chamber of Notaries the withdrawal and revocation of his/her admission as a Rechtsanwalt must also be notified immediately to the Regional Judicial
Administration and the Chamber of Notaries.

(4) The rights and duties delegated to the Bar under para. 1 shall accrue to the Council. In departure from § 73 para. 3, the Council may delegate these rights and duties to individual members of the Council. In a far as rights are delegated, the Assembly of the Bar may decide that administration fees shall be charged, in departure from §§ 192 to 194, setting the amount and the date when such fees shall be due for payment.

(5) In as far as rights and duties have been delegated to the Bar, §§ 37 to 42 shall apply to the proceedings in the case of petitions to a court in matters concerning admission on the following conditions:

1. In a far as the Bar has taken a decision, the petition to a court (§ 39) must be directed against the Bar.
2. The Bar shall act in lieu of the Regional Judicial Administration (§ 41 para.s 3 and 4).
3. If decisions of the Bar are challenged, the Higher Lawyers' Court shall also give the Regional Judicial Administration an opportunity to express an opinion (§ 40).
4. In the first instance the Regional Judicial Administration shall always have a right of appeal
irrespective of whether it is party to the proceedings (§ 42 para. 2). The Bar shall have a right of appeal in all cases.

(6) If the Rechtsanwalt also belongs to a Chamber of Notaries, the approval of the Regional Judicial Administration must first be sought in the case set out in § 28.

BRAO § 225
Appearance of Rechtsanwنlte before the courts and the authorities of the Lنnder

(1) This shall not affect the right of the legislature of the Lنnder to provide for the exclusion of
representatives and counsel in proceedings before an arbitrator or before other arbitration and
conciliation tribunals. In as far as the laws of the Lنnder allow for representatives or counsel to be excluded, this shall not apply to Rechtsanwنlte.

(2) In as far as previous laws of the Lنnder only allow Rechtsanwنlte who are admitted in the Land to appear before its courts or its authorities, Rechtsanwنlte who have rights of audience before the courts of another German Land may also appear.

BRAO § 226
Concurrent admission before the Regional Court and the Higher Regional Court

(1) Rechtsanwنlte who at the time when this Act comes into force are admitted before a Higher Regional Court and before a Regional Court or who are admitted before a Regional Court and have the right to appear before a Higher Regional Court shall keep this admission or these rights.

(2) Rechtsanwنlte who are admitted before the Regional Courts of Baden-Württemberg, Bavaria, Berlin, Bremen, Hamburg, Saarland, Saxony, Saxony-Anhalt and Thuringia may, on application, also be admitted before the Higher Regional Court if they have been admitted for five years before a court of first instance.

(3) (repealed)

BRAO § 227
Concurrent admission before the highest Regional Court

(1) If a Land has a highest Regional Court under § 8 of the Introductory Act of the Court Constitution Act (Einführungsgesetz zum Gerichtsverfassungsgesetz), the Rechtsanwنlte who are admitted before the Higher Regional Courts of this Land shall be concurrently admitted before the highest Regional Court.

(2) The highest Regional Court shall not keep a List of Rechtsanwنlte (§ 31 para. 1).

BRAO §§ 227a and 227b
(repealed)

BRAO § 228
Determination by the highest Regional Court or the Lawyers' Disciplinary Court or the Higher
Lawyers' Court that shall have jurisdiction

(1) If a Land has a highest Regional Court it shall determine which Lawyers' Disciplinary Court shall have jurisdiction in lieu of the Federal Supreme Court in the case of a dispute between several Lawyers' Disciplinary Courts or if the Lawyers' Disciplinary Court that actually has jurisdiction is legally or materially prevented from exercising its function in an individual case. However this shall only be the case if the Lawyers' Disciplinary Courts involved in the dispute over which court has jurisdiction or the Lawyers' Disciplinary Court that is prevented from exercising its function are formed within the Land.

(2) Para. 1 shall apply accordingly in determining which Higher Lawyers' Court shall have jurisdiction.

BRAO § 229
Procedure for the service of notices

The provisions of the Code of Civil Procedure shall apply accordingly regarding the procedure for the service of notices.

BRAO §§ 230 to 232

BRAO §§ 233
Legal successor of the former Bar of the German Reich

(1) The German Federal Bar is the legal successor to the former Bar of the German Reich.

(2) In as far as nothing to the contrary is prescribed by law, it shall assume all legal rights and duties of the former Bar of the German Reich in matters concerning assets, but shall only be liable in respect of the sum of the assets that it has taken over. The provisions of the Civil Code concerning an inheritance falling to the fiscal authorities as legal heir shall apply accordingly.

(3) The assets of the former Bar of the German Reich that were transferred in trust to the Bar of Berlin by the Berlin Commission for Claims to Assets under Control Council Directive no. 50 shall devolve to The German Federal Bar. The Berlin Bar shall be exempt from the liability imposed on it under Article IV of Control Council Directive no. 50. This shall have no bearing on the transfer of assets to the Land of Berlin and the liability thus involved.

(4) No court costs shall be charged on grounds of and in implementing the transfer of rights.

BRAO § 234
Particular restrictions on access to the legal profession under the laws of the Lنnder
This shall not affect restrictions on access to the legal profession under the laws of the Lنnder concerning political exemption. They shall also apply in the case of any change in admission.

BRAO § 235
References in other provisions

/* In as far as there is a reference in other Acts and regulations to the laws repealed or amended by this Act they shall be replaced by the corresponding provisions of this Act. */

BRAO § 236
Validity in Berlin

This Act shall also apply in Berlin as set out in § 13 para. 1 of the Third Transitory Act (Drittes
نberleitungsgesetz) of 4 January 1952 (Federal Gazette I p. 1).

BRAO § 237
Coming into force

(1) This Act shall come into force on 1 October 1959.
(2) ...

BRAO
Appendix

Treaty of Unification (EV) Excerpt from the Treaty of Unification (EinigVtr) Schedule I Chapter III Subject A Parts I and IV (Federal Gazette II 1990, 889, 921, 938) Part I – Provisions that shall not come into force in the territory of accession – Part IV - Special provision for the Land of Berlin –

Part I
The following provisions form an exception to the rule that the law of the Federal Republic of Germany shall come into force under Article 8 of the Treaty, subject to the special provision for Berlin in Part IV:
...

7. /* The Federal Lawyers' Act in the corrected version published in the Federal Gazette Part III, classification number 303-8, last amended by Article 3 of the Act of 6 July 1990 (Federal Gazette I p. 1349) */

...
Part IV
...

1. In departure from Part 1, the following legal provisions shall also apply in the part of Berlin which has now been incorporated into the Federal Republic:

a) The Federal Lawyers' Act in the corrected version published in the Federal Gazette Part III,
classification number 303-8, last amended by Article 3 of the Act of 6 July 1990 (Federal Gazette I p. 1349), subject to the following conditions:

aa) Rechtsanwنlte who had a law practice in the part of Berlin where the Basic Law did not hitherto apply on the date that this part of Berlin was effectively incorporated into the Federal Republic of Germany shall be deemed admitted to the legal profession under the Federal Lawyers' Act. They shall belong to the Berlin Bar. They shall make an application for admission before a court of ordinary jurisdiction in Berlin. If the application is not made within three months after this part of Berlin has been effectively incorporated into the Federal Republic their admission to the legal profession shall be revoked.

bb)

cc) Breaches of professional duties which were committed before Berlin was effectively incorporated into the Federal Republic of Germany shall be subject to the limitation period set out in the Statutory Order concerning the Work and the Admission of Rechtsanwنlte with an Independent Law Practice (Verordnung über die Tنtigkeit und die Zulassung von Rechtsanwنlten mit eigener Praxis) of 22 February 1990 (Law Gazette I no. 17 p. 147).
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