Concept and Nature of the BORA
Die BORA is the abbreviation for the Professional Code of Conduct for Rechtsanwälte. This legal regulation comprehensively governs the professional duties and the code of conduct for Rechtsanwälte in Germany. Together with the Act on the Activities of European Rechtsanwälte in Germany (EuRAG) and the Federal Code for Rechtsanwälte (BRAO), it forms a core part of professional law for lawyers. The BORA contains binding requirements for the practice of the profession, dealings with clients, advertising rules, confidentiality obligations, conflicts of interest, and independence.
The current version of the BORA is enacted under the leadership of the Federal Bar Association and is subject to ongoing development to meet the latest requirements for the legal profession.
Legal Sources and Systematics
Statutory Basis and Enactment
The BORA is based on the enabling provision in § 59b BRAO. According to this, the self-governing legal profession may issue binding rules on the practice of the profession. The Federal Bar Association adopts the BORA in the form of a statute, which enters into force after approval by the Federal Ministry of Justice.
Content Structure
The BORA is divided into several sections, each focusing on specific thematic areas. These include, for example:
- General Professional Duties
- Dealing with Clients
- Conduct towards Courts, Authorities, and Colleagues
- Obligations in Advertising and on the Internet
- Special Provisions for Partnerships and Professional Practice Groups
Scope of Application and Target Audience
The BORA applies to all Rechtsanwälte admitted in Germany, unless the Act on the Activities of European Rechtsanwälte (EuRAG) contains differing provisions. The regulations cover professional practice regardless of whether the Rechtsanwalt is self-employed or employed.
Personal and Material Scope
The personal scope includes all natural persons licensed as Rechtsanwälte in Germany. The material obligations extend to all legal activities, in particular client representation, internal office organization, and public appearance.
Essential Regulatory Content
Confidentiality Obligation
According to § 2 BORA, the Rechtsanwalt is obliged to maintain confidentiality about everything entrusted to or learned by him in the exercise of his profession. This obligation is one of the fundamental principles of legal practice and forms the basis for the special relationship of trust between client and Rechtsanwalt.
Independence
The independence of legal practice is emphasized in § 1 BORA. The Rechtsanwalt must exercise his profession independently and on his own responsibility, free from the instructions of third parties. This serves the effective protection of rights and the functioning of the administration of justice.
Dealing with Clients
Sections 3 to 6 BORA set out the duty of careful client representation, counseling, observance of standards of diligence, and the obligation to inform clients of significant developments and risks.
Conflict of Interest
Die Conflict of Interest is regulated in § 3 BORA: The Rechtsanwalt may not represent conflicting interests. Breaches of this principle regularly render the mandate invalid and may result in professional sanctions.
Relations with Colleagues, Courts, and Public Authorities
BORA, in §§ 7 to 17, emphasizes mutual respect within the profession and towards the judiciary. This includes obligations for objectivity, prohibition of disparagement, and integrity within the professional community.
Advertising and Electronic Communication
According to §§ 6 to 9 BORA, factual and professional public presentation is permitted, while misleading, comparative, or overly sensational advertising is inadmissible. The development of new forms of communication—for example, via the Internet or social media—is regularly addressed by updated BORA regulations.
Special Obligations for Associations
The BORA contains special provisions for partnerships, professional companies, and other cooperative forms of legal practice (§§ 10 to 13 BORA). Responsibilities, name usage, internal transparency, and external presentation are regulated here.
Sanctions and Enforcement
Disciplinary Consequences
Violations of the BORA can result in disciplinary measures, including reprimands, fines, or, in extreme cases, suspension or revocation of admission. Compliance with the regulations is monitored by lawyer arbitration boards and the competent supervisory authorities.
Legal Remedies
Affected Rechtsanwälte can appeal disciplinary measures to administrative courts. Clients also have a right to file complaints in case of professional law violations.
Relationship to Other Regulations
The BORA supplements the general rules of lawyers’ professional law, in particular the Federal Code for Rechtsanwälte (BRAO), Lawyers’ Compensation Act (RVG), and other professional guidelines. In the event of conflicts, higher-ranking statutory provisions take precedence.
Literature and Practice-Relevant Notes
The BORA is comprehensively addressed in legal commentaries and specialist literature. The ongoing adaptation of the BORA to new societal and technological developments is essential to safeguard the integrity and reputation of the profession.
Note: This overview serves to present the legal foundations of the BORA objectively and does not claim to be exhaustive for individual cases.
Frequently Asked Questions
When is the BORA binding for Rechtsanwälte and how is it enforced?
The Professional Code of Conduct for Rechtsanwälte (BORA) is binding for all Rechtsanwälte admitted in Germany according to § 59b BRAO. Its observance is a mandatory requirement for the exercise of the legal profession. The BORA supplements the statutory provisions of the Federal Code for Rechtsanwälte (BRAO) and in particular clarifies professional duties such as confidentiality, independence, and the prohibition of conflicting interests. Violations of the BORA are prosecuted by the local bar associations, which, within their supervisory authority (§§ 73 ff. BRAO), can initiate disciplinary measures up to court proceedings. Thus, enforcement mainly takes place within the framework of the professional supervisory and sanction system, whereby courts also refer to the BORA when interpreting lawyer conduct in disputes.
How does a violation of the BORA affect the liability and admission of a Rechtsanwalt?
A violation of the BORA can have both professional and civil law consequences for Rechtsanwälte. Professionally, depending on the severity, admonition, reprimand, fines, or in extreme cases, withdrawal of the admission to practice as Rechtsanwalt according to §§ 114 ff. BRAO may occur. In civil law, a breach may also give rise to claims for damages by the client if such a breach is considered a violation of obligations under the lawyer’s contract and thus causally leads to harm. Furthermore, repeated or particularly serious violations increase the risk of disciplinary court proceedings, which may result in a temporary or permanent ban on practicing as a lawyer.
Which professional duties are regulated in the BORA and how are these specified?
The BORA specifies all essential professional duties, in particular independence (§ 1 BORA), confidentiality (§ 2 BORA), prohibition of representing conflicting interests (§ 3 BORA), duty to inform clients (§ 11 BORA), advertising (§§ 6-7 BORA), and handling of client funds (§ 4 BORA). Furthermore, the BORA includes rules on cooperation with colleagues and other professionals (§ 8 BORA) as well as the duty of continuing education. As such, the BORA concretizes the general legal requirements of the BRAO through detailed behavioral rules and thus provides a binding framework for lawyers.
What is the legal significance of the BORA in court disputes?
In the event of a dispute—for example, in the context of a client’s liability claim against a lawyer or a disciplinary proceeding—the BORA is used as an interpretive aid to specify lawyers’ obligations of care and conduct. It provides the relevant standards by which lawyer behavior is assessed. Court decisions, particularly those of disciplinary courts or the Federal Court of Justice, regularly refer explicitly to individual BORA provisions to determine whether there is a professional or civil violation. The BORA is hierarchically subordinate to the BRAO but gives it concrete form and thus possesses a normative character.
How can amendments to the BORA be legally enacted?
The BORA is enacted and amended by the Assembly of Delegates at the Federal Bar Association pursuant to § 59b BRAO. Proposals for amendments can be submitted both by bar associations and by members of the Assembly of Delegates. Amendments become effective by proper resolution and publication in the Federal Bar Association’s newsletter. The legality of amendments can be reviewed by standard control proceedings before the Federal Court of Justice. Thus, the BORA is a dynamic set of rules that can adapt to developments in professional law.
To what extent does the BORA also bind established Rechtsanwälte from other EU states?
Rechtsanwälte from other EU states who are admitted in Germany or practice their profession on a temporary cross-border basis are also subject, regarding their activities in Germany, to the BORA (§ 206 BRAO and § 1 BORA). The BORA thus sets out the minimum professional law requirements and ensures that foreign lawyers comply with German ethical rules insofar as their activities take place within German jurisdiction. In cases of conflict, domestic law may prevail, but the BORA must be observed if the activity relates to Germany.
Is it possible to obtain exemptions or exceptions from the BORA?
The BORA allows for limited exceptions only in narrowly defined circumstances, such as in special situations involving multiple representations or where specific legislative rules (e.g., tax advisor law in cases of dual qualification) override individual provisions. A general exemption from the BORA is not possible. In doubtful cases, a lawyer may consult the relevant bar association or—for fundamental questions—the Assembly of Delegates for interpretation or clarification. In principle, however, the BORA remains a binding legal framework for all professionals.
