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* The Federal Lawyer Act of Germany - section 1 of 5
* The Federal Lawyer Act of Germany - section 1 of 5
| BRAO 1 to 50 German Bar Association | |
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Reference: www.anwaltverein.de
The Federal Lawyers' Act
(Bundesrechtsanwaltsordnung- BRAO)
Chapter One
The Rechtsanwalt
BRAO 1
The status of a Rechtsanwalt in the administration of justice
A Rechtsanwalt is an independent agent in the administration of justice.
BRAO 2
The profession of Rechtsanwalt
(1) A Rechtsanwalt practises a liberal profession.
(2) The work of a Rechtsanwalt is not a trade.
BRAO 3
The right to provide legal advice and right of representation
(1) A Rechtsanwalt is an appointed and independent advisor and representative in all legal matters.
(2) A Rechtsanwalt's right to appear before courts, arbitral tribunals or authorities of any kind may only be restricted by an Act of the Federal Parliament.
(3) Within the framework of the law everyone has the right to be given legal advice and represented by a Rechtsanwalt of his or her choice in the courts, before arbitral tribunals or before the authorities.
Chapter Two
The admission of a Rechtsanwalt
Part One
Admission as a Rechtsanwalt
1. General preconditions
BRAO 4
Admission to the legal profession.
Only a person who is qualified to sit as a judge under the German Judge Act (Deutsches Richtergesetz) or who has met the conditions for admission to the profession under 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) or who has passed the aptitude test under this Act may be admitted to the legal profession.
BRAO 5
Freedom of movement
A person who has qualified to sit as a judge ( 4) in one of the German Lnder may also apply to be admitted to the legal profession in any other German Land.
2. The granting, expiry, withdrawal and revocation of admission to the legal profession
BRAO 6
Application for admission to the legal profession
(1) Admission to the legal profession shall be granted on application.
(2) An application may only be rejected for the reasons set out in this Act.
BRAO 7
Rejection of an application for admission to the legal profession
An application for admission to the legal profession shall be rejected,
1. if the applicant has forfeited a basic right by virtue of a decision of the Federal Constitutional Court (Bundesverfassungsgericht);
2. if the applicant does not have the right to take public office on grounds of a criminal conviction;
3. if the applicant has been excluded from the legal profession by virtue of a final judgment and less than eight years have elapsed since such a judgment became final; this shall have no bearing on number 5;
4. if a final judicial decision has been taken against the applicant in impeachment proceedings against a judge or in disciplinary proceedings for removal from an office in the administration of justice;
5. if the applicant is guilty of behaviour which makes him/her appear unworthy to practise as a Rechtsanwalt;
6. if the applicant opposes the Free, Democratic Basic Order in a way that is punishable by law;
7. if the applicant, for reasons of health, is incapable of properly practising as a Rechtsanwalt for more than merely a temporary period;
8. if the applicant engages in an occupation which is inconsistent with the profession of a Rechtsanwalt, particularly his/her status as an independent agent in the administration of justice, or which is likely to undermine confidence in the Rechtsanwalt's independence;
9. if the applicants finances are in a state of deterioration; this shall be suspected to be the case if insolvency proceedings have been instituted against the applicant or if the applicant is entered in the register to be kept by the Insolvency Court or the Enforcement Court ( 26 para. 2 of the Insolvency Code [Insolvenzordnung]), 915 of the Code of Civil Procedure [Zivilprozeordnung]);
10. if the applicant is a judge, a civil servant, a regular solider or a soldier in short-term service unless the applicant is performing his/her tasks in an honorary capacity or unless the applicant's rights and duties derive from 5, 6, 8 and 36 of the Members of Parliament Act (Abgeordnetengesetz) of 18 February 1977 (Federal Gazette I p. 297)or from equivalent legislation.
BRAO 8
Decision concerning the application
(1) The decision concerning an application for admission to the legal profession shall be taken by the Regional Judicial Administration (Landesjustizverwaltung).
(2) Before the decision is taken, the Regional Judicial Administration shall seek a report from the Council of the Bar (Rechtsanwaltskammer) in whose district the applicant seeks to be admitted ( 18). The report should also contain comments on all reasons for refusing admission that may be concern the personal qualities of the applicant.
(3) The Council of the Bar should submit the report immediately. If it cannot submit the report within two months it must notify the Regional Judicial Administration in good time of the reasons for the delay.
(4) The Regional Judicial Administration may assume that the Council of the Bar does not have any grounds for refusing admission if it has neither submitted the report within two months nor given any reasons for the delay.
BRAO 8a
Medical report in the admission procedure
(1) Should it be necessary in order to reach a decision regarding the reason for refusing admission set out in 7 para. 7, the Regional Judicial Administration shall order the applicant to submit a report concerning the applicants state of health within a reasonable period of time to be set by the Regional Judicial Administration.
The report shall be made by a medical practitioner chosen by the Regional Judicial Administration. The report must be based on a medical examination and, if the public health officer considers this to be necessary, also on a clinical observation of the applicant. The costs of the medical report shall be borne by the applicant.
(2) Reasons shall be given for any orders made under para. 1 and these shall be served on the applicant. The applicant may petition the Higher Lawyers' Court (Anwaltsgerichtshof) within one month of these reasons having been served. The court that shall have jurisdiction shall be the Higher Lawyers' Court at the Higher Regional Court (Oberlandesgericht) in whose district the applicant seeks to be admitted.
(3) If the applicant fails to comply with the order from the Regional Judicial Administration without having adequate grounds, the application for admission to the legal profession shall be deemed withdrawn.
BRAO 9
Unfavourable report from the Bar in certain cases
(1) If the Council of the Bar makes a report indicating that there are grounds for refusing the applicant admission to the legal profession, as stated in numbers 5 to 9 of 7, the Regional Judicial Administration shall stay the decision regarding the application for admission to the legal profession and send the applicant a certified copy of the report. The Regional Judicial Administration, however, may take a decision, if the application is to be rejected anyway for a reason which is not stated in sentence 1.
(2) The applicant may make petition the Higher Lawyers' Court within one month of the report being served. The court that shall have jurisdiction shall be the Higher Lawyers' Court at the Higher Regional Court in whose district the applicant seeks to be admitted to the legal profession.
(3) If the applicant does not petition the court, the applicant's application for admission to the legal profession shall be deemed withdrawn.
(4) If the court, in response to a petition in accordance with para. 2, finally decides that the reason for refusing admission given by the Council of the Bar is not a valid one, the Regional Judicial Administration shall take a decision regarding the application for admission to the legal profession, paying due regard to the legal opinion held by the court. If the court finds that the reason for refusing admission given by the Council of the Bar is a valid one, the application for admission for admission to the legal profession shall be deemed rejected as soon as the court decision has become final.
BRAO 10
Stay of the admission procedure
(1) The decision concerning an application for admission to the legal profession may be stayed if criminal investigations are being carried out or if a criminal trial is pending on grounds of a suspicion that the applicant may have committed a criminal offence.
(2) The decision regarding the application shall be stayed if the applicant has been publicly accused of a criminal offence which may result in the applicant being found unfit to take public office.
(3) However a decision shall be taken regarding the application for admission to the legal profession if it is already to be rejected irrespective of the outcome of the criminal investigation proceedings or the outcome of the criminal trial.
BRAO 11
Application against a rejection by the Regional Judicial Administration
(1) The notice in which the Regional Judicial Administration refuses the applicant admission to the legal profession must state the reasons. It shall be served on the applicant.
(2) The applicant may petition the Higher Lawyers' Court to quash the rejection within one month of the notice being served. The court that shall have jurisdiction is the Higher Lawyers' Court at the Higher Regional Court in whose district the applicant first seeks admission to the legal profession.
(3) If the Regional Judicial Administration has not taken a decision regarding an application for admission to the legal profession within three months, without having adequate grounds, the applicant may file a petition for a court decision.
BRAO 12
Certificate of admission
(1) The applicant shall receive a certificate of admission to the legal profession to be issued by the Regional Judicial Administration.
(2) The applicant shall be validly admitted to the legal profession on the issue of the certificate. The certificate may not be issued until evidence of professional indemnity insurance has been provided ( 51) or a provisional cover note has been issued.
(3) After being admitted to the legal profession the applicant shall have the right to bear the professional title of ''Rechtsanwalt''.
BRAO 13
Expiry of admission to the legal profession
Admission to the legal profession shall expire if it has been decided through a final court judgment that the person concerned is to be excluded from the legal profession.
BRAO 14
Withdrawal and revocation of admission to the legal profession
(1) Admission to the legal profession shall be withdrawn with effect for the future if facts subsequently become known which mean that admission would have had to be refused had such facts been known at the time.
(2) Admission to the legal profession shall be revoked,
1. if a Rechtsanwalt has forfeited a fundamental right by virtue of a decision of the Federal Constitutional Court;
2. if a Rechtsanwalt has become unfit to take public office on grounds of a criminal conviction;
3. if a Rechtsanwalt, for reasons of health, is incapable of properly practising the profession of Rechtsanwalt for longer than merely a temporary period unless it does not unduly obstruct the administration of justice for the Rechtsanwalt to remain in the legal profession;
4. if a Rechtsanwalt has renounced the rights conferred through his/her admission to the legal profession in a written notice sent to the Regional Judicial Administration;
5. if a Rechtsanwalt has been appointed as a judge or a lifelong civil servant, has been enlisted to serve as a regular solider or has been reinstated in his/her former appointment as a judge or lifelong civil servant or as a regular soldier under 6 of the Members of Parliament Act (Abgeordnetengesetz) or under equivalent legislation and theRechtsanwalt does not renounce the rights conferred through his/her admission to the legal profession;
6. if a Rechtsanwalt's admission before a court is revoked under 35 para. 1;
7. if a Rechtsanwalt's finances have fallen into a state of deterioration, unless this does not put the interests of the client at risk; a state of financial deterioration shall be assumed if insolvency proceedings have been instituted against the Rechtsanwalt or the Rechtsanwalt has been entered in the register to be kept by the Insolvency Court or the Enforcement Court ( 26 para. 2 of the Insolvency Code, 915 of the Code of Civil Procedure);
8. if a Rechtsanwalt engages in an occupation which is inconsistent with the Rechtsanwalt's profession, in particular with the Rechtsanwalt's status as an independent agent in the administration of justice, or which may undermine confidence in the Rechtanwalt's independence;
this shall not be the case if the revocation would be an unreasonably harsh measure for the person in question;
9. if a Rechtsanwalt does not maintain the mandatory professional indemnity insurance ( 51).
(3) After hearing the opinion of the Council of the Bar a dispensation may be granted so that admission to the legal profession is not revoked if the reasons for refusing admission no longer exist.
BRAO 15
Medical report in the revocation proceedings
8a para.s 1 and 2 and 16 para. 6 shall apply accordingly in the proceedings regarding revocation of admission to the legal profession in accordance with 14 para. 2 no. 3. If the medical report is not submitted within the period of time set by the Regional Judicial Adminstration, without there being adequate reasons, it shall be assumed that the Rechtsanwalt is unfit to properly practise his/her profession for longer than merely a temporary period for a reason set out in 14 para. 2 no. 3 to be clarified by the report.
BRAO 16
Procedure in the case of withdrawal or revocation of admission to the legal profession
(1) The withdrawal or revocation of admission to the legal profession shall be ordered by the Regional Judicial Administration in the Land in which the Rechtsanwalt is admitted.
(2) The Rechtsanwalt must be given a hearing and the opinion of the Council of the Bar must be sought before admission to the legal profession is withdrawn or revoked.
(3) If the Rechtsanwalt, for reasons of health, is not in a position to defend his/her rights in the proceedings, the local court (Amtsgericht), on the petition of the Regional Judicial Administration, shall appoint a legal representative in respect of the proceedings; the provisions of the Act concerning Matters of Voluntary Jurisdiction for Proceedings when Ordering a Legal Representative or a Legal Guardian (Gesetz ber die Angelegenheiten der freiwilligen Gerichtsbarkeit fr das Verfahren bei Anordnung einer Betreuung) in accordance with sections 1896 to 1908i of the German Civil Code shall apply accordingly. The person appointed as legal representative should be a Rechtsanwalt.
(4) The order withdrawing or revoking admission to the legal profession must state the reasons. It shall be served on the Rechtsanwalt and notified to the Council of the Bar.
(5) The Rechtsanwalt may petition the Higher Lawyers' Court for a decision quashing the withdrawal or revocation of admission to the legal profession within one month of the order being served. The court that shall have jurisdiction shall be the Higher Lawyers' Court at the Higher Regional Court in whose district the Rechtsanwalt is admitted.
(6) The petition to the court shall have suspensive effect. It shall lapse if the Regional Judicial Administration expressly decrees the immediate execution of its order on grounds of an overriding public interest. Such an instruction must generally be given in the case set out in 14 para. 2 no. 9. The particular interest in the immediate execution of the order must be substantiated in writing.
On the Rechtsanwalt's petition, the Higher Lawyers' Court, in urgent cases, may reinstate the suspensive effect without an oral hearing. The decision may not be challenged; it may be overruled at any time by the Higher Lawyers' Court.
(7) If immediate execution is decreed, 155 para.s 2, 4 and 5, 156 para. 2, 160 para. 2 and 161 shall apply accordingly.
BRAO 17
Expiry of the right to bear the professional title
(1) On the expiry, withdrawal or revocation of admission to the legal profession the person in question shall forfeit the right to bear the title of ''Rechtsanwalt''. The title may not even be borne with an additional piece of information drawing attention to the person's former right.
(2) If a Rechtsanwalt renounces his/her admission to the legal profession on grounds of old age or physical infirmities, the Regional Judicial Administration may grant such a person permission to continue to use the title of ''Rechtsanwalt''. In doing so the Regional Judicial Administration must first consult the Council of the Bar.
(3) The Regional Judicial Administration may revoke any permission which it has granted in accordance with para. 2 if circumstances occur at a later date which would lead to the expiry, withdrawal or revocation of admission to the legal profession. Before revoking such permission the Regional Judicial Administration must give the former Rechtsanwalt a hearing and seek the opinion of the Council of the Bar.
Part two
Admission before a court
BRAO 18
Localisation
(1) Every Rechtsanwalt must be admitted before a certain court of ordinary jurisdiction.
(2) Admission before a court shall first be granted concurrently with admission to the legal profession.
(3) The Rechtsanwalt may only renounce the rights conferred by admission before a court in order to be admitted before another court.
BRAO 19
Application for admission before a court
(1) Admission before a court shall be granted on application.
(2) The decision regarding the application shall be taken by the Regional Judicial Administration.
Before the decision is taken, the Regional Judicial Administration shall seek the opinion of the Council of the Bar in whose district the applicant is seeking admission to the legal profession.
(3) An application may only be rejected on the grounds set out in this Act.
BRAO 20
Rejection of an application for admission
(1) Admission before the court indicated in the application shall generally be refused,
1. if the applicant has served as a judge or as a lifelong civil servant within the last five years in the district of the Regional Court (Landgericht) in which the applicant is seeking admission;
2. if the applicant is seeking admission before a Higher Regional Court without having practised as a Rechtsanwalt for five years before a Regional Court or a Local Court.
(2) Admission may not be refused on the ground that there is no need for further Rechtsanwlte to be admitted before the court indicated in the application.
BRAO 21
Petition to a court
(1) The notice refusing admission before a court must state the reasons. It must be served on the applicant.
(2) The applicant may file a petition for a court decision quashing such a notice refusing admission by petitioning the Higher Lawyers' Court within one month of the notice being served. The court that shall have jurisdiction shall be the Higher Lawyers' Court at the Higher Regional Court in whose district the applicant seeks admission as a Rechtsanwalt
(3) 11 para. 3 shall apply accordingly.
BRAO 22
(repealed)
BRAO 23
Concurrent admission before a Local Court and a Regional Court
A Rechtsanwalt who is admitted before a Local Court shall, on application, also be admitted before the Regional Court in whose district the Local Court has its seat.
BRAO 24
(repealed)
BRAO 25
Exclusivity of admission before the Higher Regional Court
A Rechtsanwalt who is admitted before a Higher Regional Court may not be concurrently admitted before another court.
BRAO 26
Oath to be taken on admission to the legal profession
(1) Immediately after a Rechtsanwalt has first been admitted to the legal profession, the Rechtsanwalt must take the following oath in a public session of the court where the Rechtsanwalt is admitted:
''I swear by God, the Almighty and Omniscient to honour the Constitution and to conscientiously perform the duties of a Rechtsanwalt, so help me God.''
(2) The oath may also be taken without any religious affirmation.
(3) When the oath is taken, the person taking the oath should raise his/her right hand.
(4) If there is any law permitting the members of a religious community to use other forms of affirmation in lieu of an oath, a Rechtsanwalt who is a member of such a religious community may pronounce such an affirmation.
(5) Minutes shall be taken of the taking of the oath and they shall also record the words which are spoken. The minutes must be signed by the Rechtsanwalt and by the presiding judge of the court. They must be kept with the Rechtsanwalt's personal files.
BRAO 27
The law practice
(1) A Rechtsanwalt must establish a law practice in the locality of the court where the Rechtsanwalt is admitted. If the Rechtsanwalt is also admitted before a number of courts which sit in different localities, the Rechtsanwalt must establish his/her law practice in the locality where he/she was first admitted. The Regional Judicial Administration may determine that neighbouring localities shall be regarded as a single locality for the purposes of this provision.
(2) A Rechtsanwalt who is admitted before a Local Court may establish his/her law practice in another locality under the courts jurisdiction instead of establishing the law practice in the same locality as the court.
BRAO 28
Branch office and consulting days
(1) A Rechtsanwalt may neither establish a branch office nor hold consulting days outside the law practice. However, the Regional Judicial Administration may grant permission for this to be done if it seems to be in the pressing interests of the proper administration of justice in the circumstances which prevail in the locality. The opinion of the Council of the Bar must first be sought.
(2) Such permission may be revoked. Before such permission is revoked, the Rechtsanwalt must be given a hearing and the opinion of the Council of the Bar must be sought.
(3) The notice refusing or revoking such permission must state the reasons. It must be served on the Rechtsanwalt. The Rechtsanwalt may file a petition for a court decision quashing such a notice by petitioning the Higher Lawyers' Court within one month of the notice being served. The court which shall have jurisdiction shall be the Higher Lawyers' Court at the Higher Regional Court in whose district the Rechtsanwalt is admitted.
BRAO 29
Exceptions from the duty to establish a law practice
(1) In the interests of the administration of justice or to avoid hardship, the Regional Judicial Administration may grant a Rechtsanwalt dispensation from the duty set out in 27. The opinion of the Council of the Bar must first be sought.
(2) Such dispensation may be revoked if this should be necessary in the interests of the proper administration of justice. Before the dispensation is revoked, the Rechtsanwalt must be given a hearing and the opinion of the Council of the Bar must be sought.
(3) A notice rejecting an application for dispensation or merely granting dispensation subject to certain conditions or revoking dispensation must state the reasons. It must be served on the Rechtsanwalt. The Rechtsanwalt may file a petition for a court decision quashing such a notice by petitioning the Higher Lawyers' Court within one month of the notice having been served. The court that shall have jurisdiction shall be the Higher Lawyers' Court at the Higher Regional Court in whose district the Rechtsanwalt is admitted.
(4) 11 para. 3 shall apply accordingly.
BRAO 29a
Law practices in other countries
(1) The provisions of this Part shall not prevent a Rechtsanwalt from establishing or maintaining a law practice in other countries.
(2) The Regional Judicial Administration shall grant a Rechtsanwalt who has established a law practice only in other countries dispensation from the duty set out in 27 in as far as this is not inconsistent with the overriding interests of the administration of justice.
(3) The Rechtsanwalt must notify the Regional Judicial Administration and the Bar of the address of his/her law practice and of his/her place of residence in another country and also of any change of address. 29 para. 1 sentence 2, para.s 2 and 3 and 11 para. 3 shall apply accordingly.
BRAO 30
Person authorised to accept the service of notices
(1) If a Rechtsanwalt has been granted dispensation from the duty to maintain a law practice, the Rechtsanwalt must appoint a person who is permanently authorised to accept the service of notices in the locality of the court where the Rechtsanwalt is admitted. This person must be a permanent resident in this place; if the Rechtsanwalt is at the same time admitted before a number of courts in several localities, the Rechtsanwalt must appoint the person authorised to accept the service of notices in the locality where the law practice would have had to be established ( 27 para. 1 sentence 2).
(2) Service to the person authorised to accept the service of notices may also be made from Rechtsanwalt to Rechtsanwalt ( 174, 195 of the Code of Civil Procedure) and also to the Rechtsanwalt himself/herself.
(3) If nobody has been appointed to accept the service of notices, contrary to para. 1, service may be effected through posting ( 184 of the Code of Civil Procedure). The same applies if it is not possible to effect service to the authorised person in the locality where the court has jurisdiction.
BRAO 31
Entry in the List of Rechtsanwlte
(1) Each court of ordinary jurisdiction shall keep a List of the Rechtsanwlte who are admitted before this court.
(2) A Rechtsanwalt shall be entered in the list after taking the oath ( 26), giving notice of his/her place of residence and establishing a law practice ( 27). If a Rechtsanwalt has been granted dispensation from the duty in 27, the Rechtsanwalt shall be entered in the list as soon as he/she has taken the oath.
(3) The list must indicate the date when the Rechtsanwalt was admitted and the date when the Rechtsanwalt took the oath, the Rechtanwalt's place of residence and law practice and whether or not the Rechtsanwalt has permission to hold consulting days outside the law practice or to establish a branch office. In the cases set out in 29 para. 1 or in 29a para. 2 the nature of the dispensation shall be noted.
(4) The Rechtsanwalt shall be given a certificate regarding his/her entry in the list.
(5) If the Rechtsanwalt moves his/her place of residence or his/her law practice, the Rechtsanwalt must immediately notify the Regional Judicial Administration and the court where the Rechtsanwalt is admitted so that the information can be entered in the list.
BRAO 32
Starting to practise as a Rechtsanwalt
(1) After being entered in the List of Rechtsanwlte, the Rechtsanwalt shall then have the right to practise as a Rechtsanwalt.
(2) This shall not affect the legal validity of acts which the Rechtsanwalt has performed prior to this.
BRAO 33
Admission before a different court
(1) On application a Rechtsanwalt may be admitted before another court of ordinary jurisdiction if he/she has renounced the rights conferred by his/her former admission. The statement renouncing these rights must be made in writing and submitted to the Regional Judicial Administration which has granted admission.
(2) The decision regarding the application for admission in a different locality may be stayed if proceedings are pending against the Rechtsanwalt before the Lawyers' Disciplinary Court or if criminal investigations are being conducted against the Rechtsanwalt on the ground that the
Rechtsanwalt may have committed a criminal offence or if criminal proceedings are pending against this person.
(3) The application may not be refused on the ground that the Rechtsanwalt has been admitted to the legal profession in another Land.
(4) The previous rights of admission ( 18 para. 1) shall be not be revoked by the Regional Judicial Administration that granted them until the Rechtsanwalt has been admitted before another court.
BRAO 33a
Change in admission on the reallocation of courts
If there is any change in the allocation of the courts, the Rechtsanwalt shall be admitted before the court of ordinary jurisdiction in the locality where the Rechtsanwalt has his/her law practice in lieu of the court where the Rechtsanwalt was admitted before the change.
BRAO 34
Expiry of admission
Admission before a court shall expire
1. if a Rechtsanwalts admission to the legal profession has expired ( 13);
2. if a Rechtanwalts admission to the legal profession has been withdrawn or revoked ( 14 to 16);
3. if a Rechtsanwalt is admitted before a different court due to a change in the allocation of the courts ( 33a).
BRAO 35
Revocation of admission before a court
(1) Admission before a court may be revoked,
1. if a Rechtsanwalt does not take the oath in accordance with 26 within three months after first being admitted before a court;
2. if a Rechtsanwalt does not comply with the duty to establish a law practice in the locality in accordance with 27 within three months of being admitted before a court;
3. if a Rechtsanwalt does not comply with a condition that has been imposed on him/her in order to obtain a dispensation in accordance with 29 para. 1 or 29a para. 2;
4. if a Rechtsanwalt does not appoint a person who is authorised to accept the service of notices within three months of being granted dispensation from the duty to maintain a law practice ( 29 para. 1, 29a para. 2) or the person previously authorised to accept service is no longer available;
5. if a Rechtsanwalt abandons his/her law practice without being granted dispensation from the duty set out in 27.
6. (repealed)
(2) Admission shall be revoked by the Regional Judicial Administration. Before such revocation, the Rechtsanwalt must be given a hearing and the opinion of the Council of the Bar must be sought.
Reasons must be given for the order revoking admission. It must be served on the Rechtsanwalt and notified to the Council of the Bar. The Rechtsanwalt may appeal against the revocation within one month of the order being served by petitioning the Higher Lawyers' Court. The court that shall have jurisdiction shall be the Higher Lawyers' Court at the Higher Regional Court in whose district the Rechtsanwalt is admitted. 16 para. 6 shall apply accordingly.
BRAO 36
Deletion from the List of Rechtsanwlte
(1) Except in the case of death, a Rechtsanwalt shall be deleted from the List of Rechtsanwlte who are admitted to the legal profession ( 31),
1. if the Rechtanwalt's admission before a court has expired ( 34);
2. if the Rechtanwalt's admission before a court has been revoked ( 33 para. 4, 35).
(2) Legal acts which the Rechtanwalt performed prior to being deleted from the list shall not be invalid on the ground that the Rechtanwalt was no longer licensed to practise as a Rechtsanwalt or to appear before a court at the time that the act was performed. The same applies to legal acts which were performed vis--vis the Rechtsanwalt before the Rechtsanwalt was deleted from the list.
Part three
General rules for the administration procedure
BRAO 36a
Investigation principle, duty to co-operate, transfer of personal information
(1) The Regional Judicial Administration shall investigate the facts ex officio. It shall use the evidence that it considers necessary in exercise of its discretion and in due assessment of the circumstances.
(2) The applicant or Rechtsanwalt involved in the proceedings must co-operate in investigating the facts and give his/her consent to the use of evidence, in as far as such consent is required. The Rechtanwalt's application for the granting of legal benefits shall be rejected if the Regional Judicial Administration is unable to sufficiently clarify the matter as a consequence of the Rechtanwalt's refusal to co-operate. The applicant or Rechtsanwalt must be made aware of this legal consequence.
(3) Courts and authorities shall provide the body responsible for the decision with personal information which, in the view of the body providing the information, is needed for admission to the legal profession and admission before a court, for the withdrawal or revocation of any permission, dispensation or right admission to the legal profession or in order to institute reprimand proceedings or proceedings before a Lawyers' Disciplinary Court, in as far as this does not harm the legitimate interests of the person concerned or if the public interest overrides the interests that an individual has in confidentiality. No information shall be provided if this contravenes particular laws concerning the use of such information.
Part Four
Proceedings in the case of a petition to a court in matters concerning admission
BRAO 37
Form of the petitions
The petition to the court must be submitted in writing to the Higher Lawyers' Court.
BRAO 38
Petition in the case of a refusal from the Bar
(1) The petition to the court in the case of a refusal from the Council of the Bar ( 9) must be made against the Bar.
(2) The applicant must indicate the refusal that he/she is objecting to. The petition must be made in the form of a request for the court to find that the reason for the refusal given by the Council of the Bar is not a valid one. The facts and evidence substantiating the petition must be stated in detail.
(3) The Regional Judicial Administration may also be party to the proceedings.
BRAO 39
Petition in the case of notices and orders from the Regional Judicial Administration
(1) The petition for a court decision against a notice or an order from the Regional Judicial Administration must be made against the Regional Judicial Administration. The same applies to petitions to a court on the ground that that the Regional Judicial Administration has not issued a notice within three months.
(2) The applicant must indicate the notice or the order that he/she is objecting to. Furthermore the applicant must state to what extent the notice or the order that is being challenged is to be overruled and what official act the Regional Judicial Administration must be obliged to take. If the petition to a court relies on the fact that the Regional Judicial Administration has not issued a notice within three months, it must be stated which official act is being applied for. The facts and evidence substantiating the petition must be listed in detail.
(3) In as far as the Regional Judicial Administration has powers to take a decision in the exercise of its discretion, the petition may only rely on the fact that the statutory limits of such discretion have been exceeded (that it is ultra vires) or that the authority has exercised its discretion in a way that does not serve the purpose for which such powers were conferred.
BRAO 40
Proceedings before the Higher Lawyers' Court
(1) The Higher Lawyers' Court must notify the respondent of the petition requesting a statement to be made within a certain period of time to be set by the presiding judge. Even if the Bar is not the respondent, it must be notified of the petition and at the same time given an opportunity to make its view felt; the Bar must be notified of the date that has been set for the oral hearing. The Higher Lawyers' Court must also notify the Regional Judicial Administration of any petition against a refusal from the Council of the Bar.
(2) The Higher Lawyers' Court shall take a decision concerning the petition on the basis of an oral hearing. However there shall be no need for an oral hearing if the parties expressly waive such a hearing.
(3) The oral hearing shall be held in camera. Representatives of the Regional Judicial Administration, the presiding judge of the Higher Regional Court or his/her deputy, the civil servants of the Public Prosecutor's office at the Higher Regional Court and members or representatives of the Council of the Bar shall be admitted to the hearing. After hearing the parties involved, the Higher Lawyers' Court may also allow other persons to be admitted to the hearing as observers. At the petitioner's request the hearing must be held in public and on the petition of another party involved the hearing may be held in public; in this case the rules of the Court Constitution Act (Gerichtsverfassungsgesetz) concerning public hearings shall apply mutatis mutandis.
(4) The hearing shall also be subject to the provisions of the Act concerning Matters of Voluntary Jurisdiction (Gesetz ber die Angelegenheiten der freiwilligen Gerichtsbarkeit) which shall apply accordingly.
BRAO 41
Decision of the Higher Lawyers' Court
(1) The Higher Lawyers' Court shall take a decision regarding the petition by making a ruling for which reasons must be given. A majority of two thirds of the votes shall be required for a decision which is to the applicant's detriment.
(2) If the Higher Lawyers' Court considers a petition against a refusal from the Council of the Bar ( 38) to be justified, it shall find that the reason for the refusal proffered by the Council of the Bar is not a valid one. If the court dismisses the petition as being unjustified, it shall at the same time find that the reason for the refusal proffered by the Council of the Bar is a valid one.
(3) If the Higher Lawyers' Court considers a petition challenging a notice or an order from the
Regional Judicial Administration ( 39) to be justified, it shall overrule the notice or the order. If the petition is against a refusal and the matter is ripe for a decision, the Higher Lawyers' Court shall at the same time pronounce that the Regional Judicial Administration has a duty to perform the official act sought in the petition; if the matter is not yet ripe for a decision, the court shall at the same time pronounce that the Regional Judicial Administration has a duty to notify the applicant, taking account of the legal opinion held by the court.
(4) If the Higher Lawyers' Court considers the applicant to have cause for complaint on the ground that the Regional Judicial Administration has not given the applicant a notice with no adequate reasons, it shall pronounce that the Regional Judicial Administration has a duty to notify the applicant.
(5) The Higher Lawyers' Court shall serve notice of a ruling regarding a petition in accordance with 38 to the Regional Judicial Administration, even if it has not been party to the proceedings.
BRAO 42
Right of immediate appeal (Beschwerde)**
/** Translator's note: The ''Beschwerde'' is ''an appeal to the higher court from the dismissal of a motion (or application concerning a procedural issue'' (definition from Dietl/Lorenz) **/
(1) The applicant shall have the right to file an immediate appeal against the decision of the Higher Lawyers' Court if the Court has dismissed the applicant's petition for
1. a finding that the reason for the refusal set out in the report from the Council of the Bar is not a valid one,
2. admission to the legal profession,
3. the decision withdrawing or revoking admission to the legal profession to be quashed,
4. admission before a court or
5. the decision revoking admission before a court to be quashed.
(2) The Regional Judicial Administration shall have the right to file an immediate appeal if the Higher Lawyers' Court has quashed a notice or an order from the Regional Judicial Administration in the cases set out in para. 1. Furthermore the Regional Judicial Administration may independently file an immediate appeal if the Higher Lawyers' Court has taken a decision concerning an petition in accordance with 38, even if the Regional Judicial Administration has not been party to the proceedings in the first instance.
(3) The Bar shall have the right to file an immediate appeal if the Higher Lawyers' Court, in response to a petition in accordance with 38, has ruled that the reason for the refusal proferred by the Council of the Bar is not a valid one.
(4) The immediate appeal must be submitted in writing to the Higher Lawyers' Court within two weeks. It shall have suspensive effect.
(5) The Federal Supreme Court shall take a decision concerning the immediate appeal. It shall also take a decision concerning petitions for reinstatement of the suspensive effect ( 16 para. 6, 35 para. 2).
(6) 40 para.s 2 and 3 shall apply accordingly to the proceedings before the Federal Supreme Court. Furthermore the provisions of the Act concerning Matters of Voluntary Jurisdiction (Gesetz ber die Angelegenheitender freiwilligen Gerichtsbarkeit) shall apply mutatis mutandis.
Chapter three
The rights and duties of Rechtsanwlte and professional collaboration among Rechtsanwlte
Part one
General
BRAO 43
General professional duties
A Rechtsanwalt must practise his/her profession conscientiously. A Rechtsanwalt must show that he/she is worthy of the respect and the trust that his/her status as Rechtsanwalt demands, both when practising and when not practising his/her profession.
BRAO 43a
The basic duties of a Rechtsanwalt
(1) A Rechtsanwalt may not enter into any ties that pose a threat to his/her professional
independence.
(2) A Rechtsanwalt has a duty to observe professional secrecy. This duty relates to everything that has become known to the Rechtsanwalt in professional practice. This does not apply to facts that are obvious or which do not need to be kept secret from the point of view of their significance.
(3) A Rechtsanwalt must not behave with lack of objectivity in professional practice. Conduct which lacks objectivity is particularly understood as conduct which involves the conscious dissemination of untruths or making denigrating statements when other parties involved or the course of the proceedings have given no cause for such statements.
(4) A Rechtsanwalt may not represent conflicting interests.
(5) A Rechtsanwalt must exercise the requisite care in handling any assets entrusted to him/her. Monies belonging to third parties must be immediately forwarded to the entitled recipient or paid into a fiduciary account.
(6) A Rechtsanwalt has a duty to engage in continuing professional development.
BRAO 43b
Advertising
A Rechtsanwalt is only permitted to advertise his/her services in as far as the advertising in question provides matter-of-fact information concerning the form and the nature of the professional services and as long as it is not aimed at soliciting specific instructions or a specific brief.
BRAO 43c
Specialised Lawyers (Fachanwlte)
(1) A Rechtsanwalt who has special expertise and experience in a particular field of law may be granted the right to call himself/herself a ''Specialised Lawyer'' (Fachanwalt) by the Bar to which he/she belongs. The title of ''Fachanwalt'' may be granted for administrative law, fiscal law, employment law and social law. The right may be granted for no more than two fields of law.
(2) The Council of the Bar shall take the decision concerning a Rechtsanwalt's application to be granted such a title through a notice to be served on the Rechtsanwalt after a committee of the Bar has examined the evidence to be submitted by the Rechtsanwalt concerning the acquisition of particular expertise and experience.
(3) The Council of the Bar shall form a committee for each field of law and shall appoint its members. At least three Rechtsanwlte shall sit on this committee; they may be members of several committees. 75 and 76 shall apply accordingly. Several regional Bars may form joint committees.
(4) Permission to use the title of ''Specialised Lawyer'' (Fachanwalt) may be withdrawn with effect for the future by the Council of the Bar if facts subsequently become known that, had they been known at the time, would have meant that permission would not have been granted. Permission may be revoked in the event of failure to undertake a course of continuing professional development prescribed in the code of conduct for the profession.
BRAO 44
Notification declining to accept a case
A Rechtsanwalt who is approached for professional services and who does not wish to accept the case must immediately state that this is so. The Rechtsanwalt must provide compensation for any damage resulting from any negligent delay in making such a statement.
BRAO 45
Ban on professional practice
A Rechtsanwalt may not practise:
1. if he/she has already been concerned with the same legal issue as a judge, an arbitrator, a public prosecutor, a member of the public service, a notary or as the administrator of a notariat;
2. if the Rechtsanwalt has recorded a deed as a notary or as a notary's deputy or as the
administrator of a notariat and its legality or interpretation is in dispute or enforcement
proceedings are being carried out on its basis;
3. if the Rechtsanwalt is to take action against the bearer of the assets the Rechtsanwalt manages in matters in which the Rechtsanwalt has had a prior involvement as an administrator in insolvency, an administrator of a deceased's estate, an executor, a legal representative or guardian or in a similar capacity;
4. if the Rechtsanwalt was already professionally involved in the same matter outside his/her
practice as Rechtsanwalt or outside of another activity in the meaning of 59a para. 1 sentence 1;
this shall not apply if such professional involvement has come to an end.
(2) A Rechtsanwalt may not:
1. become involved in matters with which he/she was already concerned as a Rechtsanwalt against the bearer of the assets to be managed, as an administrator in insolvency, an administrator of a deceased's estate, an executor, a legal representative or guardian or in a similar capacity;
2. practise in respect of matters with which he/she was already involved outside his/her profession as Rechtsanwalt or outside of another activity in the meaning of 59a para. 1 sentence 1.
(3) The prohibitions set out in para.s 1 and 2 also apply to the Rechtsanwlte and members of other professions who are or were in partnership with or who are or were otherwise associated with the Rechtsanwalt in order to jointly practise their professions, also in as far as one of them was involved as defined in para.s 1 and 2.
BRAO 46
Rechtsanwlte in permanent employment
(1) A Rechtsanwalt may not represent a client before courts or arbitral tribunals in his/her capacity as Rechsanwalt if the Rechtsanwalt has a duty to make his/her working time and labour available to this client under a permanent contract of employment or other form of employment.
(2) A Rechtsanwalt may not become active:
1. if he/she has already been active in a legal capacity in the same matter as a different type of advisor who gives legal advice under a permanent contract of employment or a similar form of employment;
2. as a different type of advisor who gives legal advice under a permanent contract of employment or a similar type of employment, if he/she has already been involved with the same matter as a Rechtsanwalt.
(3) The prohibitions set out in para. 2 also apply to the Rechtsanwlte and members of other
professions who are or were in partnership with or who are or were otherwise associated with the Rechtsanwalt in order to jointly practise their professions, also in as far as one of them was involved as defined in para. 2.
BRAO 47
Rechtsanwlte serving in the public sector
(1) Rechtsanwlte who serve as judges or civil servants, without holding such office for life, who are called to serve as soldiers in short-term service or who temporarily serve as non-civil servants in the public sector may not practise their profession as Rechtsanwalt unless they perform the duties assigned to them in an honorary capacity. However the Regional Judicial Administration may, on an Rechtanwalt's written application, appoint a deputy or allow the Rechtsanwalt to practise his/her profession himself/herself as long as this is not detrimental to the administration of justice.
(2) If a Rechtsanwalt has a public office without having been made a civil servant and if he/she may not practise as a Rechtsanwalt himself/herself due to the rules governing the office in question, the Regional Judicial Administration may appoint a deputy on the Rechtanwalt's application.
(3) The opinion of the Council of the Bar must be sought before a decision is taken regarding the applications referred to in para. 1 sentence 2 and para. 2.
BRAO 48
The duty to act as counsel in court proceedings
(1) A Rechtsanwalt must act as representative or counsel for a party in court proceedings,
1. if the Rechtsanwalt has been assigned to the party as counsel providing provisional pro bono services to defend the party's rights under 121 of the Code of Civil Procedure, 4a para. 2 of the Insolvency Code, 11a of the Labour Court Act or under other legislation;
2. if the Rechtsanwalt has been assigned to the party as counsel under 78b and 78c of the Code of Civil Procedure;
3. if the Rechtsanwalt has been assigned to the other party as counsel on the opposing side under 625 of the Code of Civil Procedure.
(2) A Rechtsanwalt may apply for his/her assignment as counsel to be reversed if there are important grounds for doing so.
BRAO 49
Appointment by the court as counsel for the defence, acting as counsel
(1) A Rechtsanwalt must take up a party's defence or act as counsel if he/she has been appointed as counsel under the provisions of the Code of Criminal Procedure or the Act concerning Breaches of Administrative Rules (Gesetz ber Ordnungswidrigkeiten) or under the Act concerning International Legal Aid in Criminal Matters (Gesetz ber die internationale Rechtshilfe in Strafsachen) or under the Act concerning the International Criminal Court (IStGH Gesetz).
(2) 48 para. 2 shall apply accordingly.
BRAO 49a
The duty to give legal advice
(1) A Rechtsanwalt has a duty to give legal advice as provided for under the Law on Legal Advice (Beratungshilfegesetz). The Rechtsanwalt may decline to give legal advice in the individual case if there are important grounds for doing so.
(2) A Rechtsanwalt has a duty to co-operate in services offered by the Bar for giving legal advice to persons with a low income who seek access to justice. The Rechtsanwalt may decline to cooperate in the individual case if there are important grounds for doing so.
BRAO 49b
Remuneration
(1) It is not permissible to agree on or to bill for lower fees and disbursements than those provided for in the Federal Scale of Lawyers' Fees (Bundesgebhrenordnung fr Rechtsanwlte) in as far as nothing to the contrary is set out therein. In the individual case a Rechtsanwalt may give consideration to a client's particular personal circumstances, particularly the client's impecuniousness, by lowering his/her fees or by waiving fees or disbursements after bringing the case to a conclusion.
(2) Agreements under which remuneration or the amount of fees depend on the outcome of the case or on the success of the Rechtanwalt's work (no win no fee) or under which the Rechtsanwalt keeps a part of the award made by the court as a fee (quota litis) are not permitted.
(3) It is not permissible to pay and accept a part of the fees or other benefits for acting as agent in obtaining instructions from clients, whether in relation to a Rechtsanwalt or in relation to third parties of any kind. However it is permissible to pay a reasonable fee for the work of another Rechtsanwalt which goes beyond the scope of 52 of the Federal Scale of Lawyers' Fees. The fees must take account of the responsibility and potential liability borne by the Rechtsanwlte involved and also of any other circumstances. The agreement of such a fee must not be made a precondition for accepting instructions.
A number of Rechtsanwlte may collaborate on one case and share the fees amongst themselves in a way which is appropriate to the work, the responsibility borne and their potential liability.
Sentences 2 and 3 do not apply to Rechtsanwlte who are only admitted before the Federal
Supreme Court and the Higher Regional Court.
(4) The Rechtsanwalt who has a claim to a fee must observe professional secrecy in the same way as the Rechtsanwalt who accepted the instructions. It is not permissible to assign claims to fees or to delegate the collection of fees to a third party who is not admitted as a Rechtsanwalt unless the claim has become res judicata, an initial attempt at enforcement has proved unsuccessful and the Rechtsanwalt has obtained the client's express written consent.
BRAO 50
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.
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2003 Iranian Bar Associations Union
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