Jurisdiction of Lawyers’ Courts
The jurisdiction of lawyers’ courts is an independent disciplinary court system that oversees and sanctions breaches of professional law by lawyers. It serves to monitor compliance with lawyers’ professional duties and thereby ensures trust in the integrity and proper functioning of the legal advisory professions. The legal foundations, structure, procedures, and significance of the jurisdiction of lawyers’ courts are explained in detail below.
Legal Foundations of the Jurisdiction of Lawyers’ Courts
Statutory Provisions
The jurisdiction of lawyers’ courts is primarily based on the Federal Lawyers’ Act (BRAO). The BRAO lays down both the professional law for lawyers and the organization and procedures of the relevant courts. Supplementary regulations are also provided by the Law on the Professional Law of Lawyers in the European Union and the Professional Code of Conduct for Lawyers (BORA).
Scope of Application
The jurisdiction of lawyers’ courts applies to natural persons admitted to the legal profession. It covers all activities related to practicing as a lawyer, regardless of whether disciplinary misconduct occurs during activities before a court, in relation to clients, or in other professional contexts.
Institutional Structure of the Jurisdiction of Lawyers’ Courts
Lawyers’ Court
The lawyers’ court is the first instance of the jurisdiction of lawyers’ courts. It consists of at least three members, all of whom must themselves be lawyers. Their task is to decide on violations of professional duties and, where applicable, on disciplinary measures.
Composition
The court is composed of a presiding judge and at least two associate judges, who are elected from among those admitted to the legal profession. The independence of the members is legally guaranteed.
Lawyers’ Court of Appeal
The Lawyers’ Court of Appeal constitutes the second judicial instance. It decides on appeals against judgments of the lawyers’ court. The Lawyers’ Court of Appeal is also composed of several members, all of whom are drawn from those admitted to the legal profession.
Federal Court of Justice (BGH)
The Federal Court of Justice (BGH) serves as the highest instance in matters concerning the jurisdiction of lawyers’ courts. In certain cases, appeals on points of law (“Revision”) or complaints (“Beschwerde”) against decisions of the Lawyers’ Court of Appeal may be lodged with the BGH.
Proceedings Before the Jurisdiction of Lawyers’ Courts
Initiation of Proceedings
Proceedings before the lawyers’ court are generally initiated by an indictment submitted by the prosecution authority (Public Prosecutor General). Complaints or reports from third parties may also trigger proceedings if they indicate a violation of professional law.
Course of Proceedings
Proceedings are conducted primarily in accordance with the provisions of the Code of Criminal Procedure (StPO), unless otherwise stipulated by the BRAO. There is a public main hearing at which the affected lawyer has the opportunity to present a defense.
Disciplinary Measures
If violations of professional duties are established, the lawyers’ court may impose various measures, including:
- Reprimand
- Fine
- Temporary ban on exercising the profession
- Expulsion from the legal profession
The type and extent of the measure depend on the severity of the established breach of duty.
Legal Remedies
Affected parties and the prosecution authority may appeal decisions of the lawyers’ court to the Lawyers’ Court of Appeal. Further legal remedies against decisions of the Lawyers’ Court of Appeal are available under certain conditions before the Federal Court of Justice. Typically, these remedies are appeals on points of law or complaints, depending on the procedural situation.
Importance and Function of the Jurisdiction of Lawyers’ Courts
Safeguarding of Professional Ethics
A key function of the jurisdiction of lawyers’ courts is to safeguard professional ethics and maintain trust in legal services. Through effective oversight and sanctions for breaches of professional law, the lawyers’ courts protect both the interests of clients and the proper functioning of the entire legal system.
Preventive and Repressive Effects
The jurisdiction of lawyers’ courts has a preventive effect by setting clear rules of conduct and sanctions to prevent professional misconduct. At the same time, it has a repressive function by efficiently sanctioning actual violations.
Distinctions and Special Features
Relationship to Other Jurisdictions
The jurisdiction of lawyers’ courts is distinct from criminal courts and ordinary courts. While those courts are competent for general civil and criminal matters, the lawyers’ court deals exclusively with issues concerning professional duties.
European Dimensions
With ongoing European integration, the jurisdiction of lawyers’ courts is becoming increasingly important at the European level. In particular, in cross-border matters, the compatibility of national disciplinary procedures for lawyers with European directives and the case law of the European Court of Justice plays a role.
Current Developments and Reforms
Digitalization of Proceedings
Current developments involve digitalization in the proceedings of lawyers’ courts, for example, through the adoption of electronic files and digital communication with parties involved.
Case Law and Legislation
The case law of lawyers’ courts and the Federal Court of Justice continually refines the application and interpretation of professional law. Legislative amendments in professional law regularly result in adjustments to the underlying procedures and responsibilities.
Literature and Further Sources
- Federal Lawyers’ Act (BRAO)
- Professional Code of Conduct for Lawyers (BORA)
- Decisions of the Federal Court of Justice in Lawyers’ Matters (BGH AnwZ)
- Commentaries on the Professional Law for Lawyers
Conclusion: The jurisdiction of lawyers’ courts guarantees rights and obligations within the legal profession. It protects both the reputation of the legal profession and the interests of those seeking justice and ensures the proper functioning of the legal system. Its detailed legal framework and effective oversight make the jurisdiction of lawyers’ courts a central institution in the German legal system.
Frequently Asked Questions
Who can be prosecuted before the jurisdiction of lawyers’ courts?
Before the jurisdiction of lawyers’ courts, admitted female and male lawyers as well as law firms can be prosecuted. This includes individual lawyers as well as partnerships and corporations, provided they are admitted to the legal profession under § 59c BRAO. Prosecution concerns violations of professional duties as regulated in the Federal Lawyers’ Act (BRAO), the Professional Code of Conduct for Lawyers (BORA), or other relevant provisions. Syndicate lawyers are not subject to the jurisdiction of lawyers’ courts with respect to their work within their company, unless it relates to the core legal activities. Complaints may be submitted by the locally competent bar association, the board of the chamber, or the public prosecutor general.
What sanctions can be imposed by the jurisdiction of lawyers’ courts?
The jurisdiction of lawyers’ courts is authorized to impose a wide range of sanctions if a breach of duty by the person concerned is established. Typical measures include reprimand, fines, prohibition from practicing law for a specified period, and, as the most severe measure, expulsion from the legal profession (§ 114 BRAO). In addition, it may be determined that no violation of professional law has occurred (acquittal). All sanctions must be specified in detail in the decision’s operative part and must comply with the principle of proportionality, taking into account the seriousness of the breach and any prior offenses.
How does the procedure before the lawyers’ court take place?
The proceedings before the lawyers’ court usually begin with the initiation of a preliminary investigation by the board of the bar association or the public prosecutor general. After completion of the preliminary investigations, if there is sufficient suspicion, the indictment is filed with the competent lawyers’ court. Proceedings before the lawyers’ court are, in many respects, similar to criminal court proceedings: They are generally public, but under certain circumstances, the public may be excluded. The person concerned has the right to be heard, may appoint a defense counsel, submit their own statements, or request evidence. After the evidentiary process is completed, a judgment is rendered. Appeals and revisions may be filed against this judgment.
What legal remedies are available against judgments of the lawyers’ courts?
Appeals may be lodged against judgments of the lawyers’ court to the competent Lawyers’ Court of Appeal (§ 116 ff. BRAO). If a decision of the Lawyers’ Court of Appeal is contested, review by the Federal Court of Justice is generally available (§ 145 BRAO), provided leave is granted or the Federal Court of Justice admits it due to its fundamental importance. Legal remedies must be filed within specific deadlines and in the prescribed form. They serve to review the decision both factually and legally (appeal), or only legally (revision).
Who are the members of the lawyers’ courts and how are they appointed?
The lawyers’ courts consist of part-time judicial members. They regularly comprise one or more appointed female and/or male lawyers as well as at least one professional judge (§ 92 BRAO). The members are elected or appointed according to the statutes of the respective regional bar association and the applicable legal requirements. The presiding judge is usually a professional judge, while the associate judges are lawyers. This structure is intended to guarantee the courts’ independence and professional competence within the framework of the self-regulation of the legal profession.
How are the enforcement and publication of disciplinary court decisions carried out?
The enforcement of disciplinary measures imposed by the lawyers’ courts, insofar as they are not immediately enforceable, takes place after the decision becomes final and is governed by the general rules. For example, fines are collected by the bar association; expulsions from the legal profession are published in the lawyers’ register and the Federal Gazette (§ 150 BRAO). The respective bar association may also be required to inform other jurisdictions, public authorities or clients about the imposed measures, as legally mandated. Publication also serves to protect the legal system and provide transparency to the public.
