Definition and significance of the BRAO
The Federal Lawyers’ Act (BRAO) is the central law regulating the professional practice of lawyers in Germany. It governs the admission, rights, duties, and professional practice of lawyers, as well as the organization and structure of self-governance within the legal profession. The BRAO forms the core of the legal foundation for the activities of lawyers and is crucial for the German legal profession law.
Origin and development of the BRAO
The BRAO was introduced on August 1, 1959, and has since been continuously developed through numerous legal amendments and adjustments. The aim was to create a uniform, transparent, and nationwide framework for lawyers. Central to this was the notion of professional self-government while creating high standards of consumer protection and ensuring the independent position of the lawyer within the legal system.
Scope of application of the BRAO
Material scope of application
The BRAO generally applies to all lawyers admitted in Germany. It covers all essential professional matters, including admission, rights and duties, professional practice, confidentiality, advertising measures, fee regulations, and the implementation of professional conduct measures.
Personal scope of application
The addressees of the BRAO are in particular natural persons who bear the professional title “Rechtsanwalt” (lawyer). The regulations apply equally to in-house counsel (Syndikusrechtsanwälte) and European lawyers providing services permanently or temporarily in Germany—the latter within the framework of the European Lawyers’ Directive.
Admission to the legal profession
Requirements
The admission requirements for the legal profession are regulated in the BRAO. Key conditions are:
- Degree in law with successful completion of the state examination
- Completion of the preparatory service (legal clerkship) with the second state examination
- Personal suitability and reliability
- No reasons for refusal such as criminal convictions or relevant property offenses
Admission is granted upon application by the competent chamber and results in entry into the list of admitted lawyers.
Expiry and revocation of admission
The BRAO also regulates the conditions under which an already granted admission may expire or be revoked. Reasons for this include, for example, serious breaches of duty, criminal convictions for certain terms of imprisonment, or loss of personal suitability.
Rights and duties of lawyers
Independence and confidentiality
According to the BRAO, the lawyer is obligated to maintain independence and confidentiality (§§ 1, 43a BRAO). These duties protect the clients and ensure the integrity of legal work. The duty of confidentiality applies also towards courts, authorities, and third parties.
Power of representation
The lawyer has comprehensive authority to represent clients before courts and authorities. The BRAO guarantees free choice of clients as well as independent professional practice.
Professional duties
The essential duties include:
- Independent and diligent professional practice
- Continuing education obligations
- Avoidance of conflicts of interest
- Obligation to accept mandates under certain conditions (e.g., in emergencies)
Advertising regulations
The BRAO contains provisions regarding the admissibility of marketing measures. Advertising must not be misleading, factually inappropriate, or aimed at soliciting clients to the disadvantage of other lawyers.
Organization and self-governance
Governing bodies
The organization of professional self-governance is based on the BRAO. It regulates the membership, tasks, and powers of the competent governing bodies. These include the representatives’ assembly, the board, and the management of the respective regional organization as well as the federal organization.
Tasks of self-governance
The self-governing bodies are responsible for:
- Admission to the legal profession
- Supervision of professional duties
- Sanctioning breaches of professional regulations
- Management of the lawyers’ lists
Disciplinary law and professional supervision
The BRAO contains independent disciplinary law provisions. In the case of breaches of duty, measures such as reprimands, fines, temporary bans on practicing, or revocation of admission may be imposed. The procedures are clearly regulated and ensure due process for affected lawyers.
Fee and remuneration regulations
The BRAO forms the basis for billing legal services. In addition, the Lawyers’ Compensation Act (RVG) applies, defining the fee structure and billing modalities. The BRAO ensures that remuneration for legal services is appropriate and transparent in accordance with professional standards.
Cooperation with other professions
The BRAO regulates the permissibility of cooperation between lawyers and members of other professional groups (e.g., tax advisors), including rules on establishing interprofessional companies.
Amendments and further developments
The BRAO is subject to continuous development to respond to changing legal, societal, and European requirements. Major reforms include the introduction of the possibility to establish partnership companies, the reform of professional regulations in the context of digitalization, and the implementation of European directives.
Significance of the BRAO in the German legal system
The BRAO is of central importance for the functioning of the German legal system. It ensures the independence of the legal profession, client protection, the quality of legal services, and the compliance with high standards of the rule of law through a consistent and systematically structured set of rules.
Summary: The Federal Lawyers’ Act (BRAO) is the key law governing the professional practice and organization of lawyers in Germany. It comprehensively regulates admission, rights, duties, and disciplinary measures, and forms the basis for the integrity and efficiency of legal work in the German legal system.
Frequently Asked Questions
Who is required by the BRAO to maintain confidentiality, and to what extent does this obligation apply?
The duty of confidentiality is one of the most important professional obligations for female and male lawyers and is regulated in § 43a para. 2 BRAO. It covers all facts that become known to the lawyer in connection with professional activity for the client or a potential client, regardless of whether they were obtained personally, through third parties, or by inspecting files. The obligation to maintain confidentiality continues after the end of the client relationship and even after the death of the client, and applies to both external third parties and courts and authorities, provided there is no justified reason for disclosure. The obligation also extends to law firm employees and professional assistants within the meaning of § 53 StPO. Breaches of confidentiality may result in disciplinary, civil, and even criminal consequences.
Under what conditions can legal practice as in-house counsel be carried out under the BRAO?
An in-house counsel (according to § 46 BRAO) does not practice law as a self-employed, independent lawyer, but as a salaried legal professional in a company or organization, who is not engaged in providing legal advice on the free market or representing any clients but is obligated exclusively to the employer. Admission to the legal profession as well as separate admission as in-house counsel are required, for which, in particular, independent and autonomous legal work for the employer must be demonstrated. Professional obligations must be observed; however, special rules apply to in-house counsel regarding client ties and court representation. For example, in-house counsel has no authority to represent in court for external mandates. The details are governed by §§ 46-46c BRAO.
What is the significance of the BRAO for the cooperation of lawyers in partnership companies?
The Federal Lawyers’ Act contains clear provisions regarding permissible corporate structures within which lawyers can work together. According to § 59a BRAO, lawyers may in particular establish partnership companies, civil-law partnerships, and registered, limited liability professional practice companies. The BRAO ensures that lawyers’ professional duties, especially confidentiality, independence, and the prohibition of representing conflicting interests (§ 43a BRAO), are always observed within the framework of cooperation. With the introduction of § 59c BRAO, the basic rules for interprofessional cooperation with other professions were newly defined and liberalized; however, compliance with core professional obligations and the independence of the professionals’ instructions are regulated as paramount.
How does the BRAO regulate the continuing education obligation for lawyers?
With the introduction of the Specialist Lawyers’ Regulations and further amendments, § 43a para. 6 BRAO stipulates that lawyers must pursue continuing education to ensure proper professional practice and keep themselves up to date with current case law and legislation relevant to their work. The continuing education obligation is specified in special regulations, such as the FAO (Specialist Lawyers’ Regulations), which, for example, require specialist lawyers to demonstrate a certain number of continuing education hours each year. The specific implementation and possible sanctions for non-compliance are the responsibility of the competent regional bar association and may lead to reprimands or further disciplinary measures.
What liability regulations does the BRAO contain concerning legal practice by lawyers?
The BRAO obliges lawyers to take out professional liability insurance for risks arising from their professional practice (§ 51 BRAO). This particularly covers claims for damages arising from breaches of professional duties, such as providing incorrect advice or missing deadlines. The minimum insurance sum is legally defined (currently 250,000 euros per insured event), and insurance coverage must be maintained throughout the duration of admission. When practicing as a partnership or professional practice company, additional insurance regulations pursuant to §§ 59j et seq. BRAO must be observed. If a lawyer fails to meet the insurance obligation, the revocation of admission in accordance with § 14 BRAO is imminent.
Under what circumstances can admission to the legal profession be revoked or withdrawn according to the BRAO?
Admission to the legal profession may be revoked or withdrawn according to § 14 BRAO, in particular if the lawyer does not (or no longer) meet the suitability or requirements for the profession, for example due to criminal convictions, lack of personal reliability, or loss of professional liability insurance. Serious breaches of professional duties, such as persistent and repeated disobedience towards professional regulations, may also lead to revocation. The decision is made by the competent bar association, but legal remedies are available against this decision in administrative courts. In certain cases—for example, lack of insurance coverage—the chamber must mandatorily pronounce revocation.
What is the significance of the BRAO with regard to the regulation of conflicts of interest among lawyers?
The BRAO tightens the requirements for maintaining independence in professional practice, particularly regarding the avoidance of conflicts of interest. Section 43a para. 4 BRAO stipulates that a lawyer may not represent or act for conflicting interests. This regulation applies to all forms of accepting mandates, both in individual representation and in the context of professional practice companies. A conflict of interest arises not only when a lawyer advises or represents two opposing parties in the same matter, but also when confidential information could be improperly disclosed, or the objective safeguarding of the client’s interests appears impaired. The interpretation of this regulation has been extensively clarified by the Federal Court of Justice and is strictly monitored by the regional bar associations. A violation can result not only in civil liability but also disciplinary sanctions up to and including revocation of admission.
