Definition and Legal Classification of Breach of Duty to One’s Own Party
Breach of duty to one’s own party refers to the impermissible representation of conflicting interests by a Rechtsanwalt and constitutes a criminally relevant act in Germany. According to Section 356 of the Criminal Code (StGB), any person authorized to provide legal advice is liable to prosecution if they represent conflicting interests in the same legal matter and thereby cause a disadvantage to a client. The purpose of this provision is to protect the relationship of trust between client and legal counsel and to ensure independent, interest-based representation.
Statutory Foundations
Section 356 StGB – Breach of Party Duty
The key statutory provision is Section 356 StGB. According to this, it is prohibited to advise or represent both sides with conflicting interests in the same legal matter. The provision is primarily addressed to Rechtsanwälte, tax advisors, and notaries and constitutes a special rule on criminal liability compared to general breach of trust.Wording of Section 356 Paragraph 1 StGB:
“A Rechtsanwalt or another professional party representative who, in the same legal matter, serves both parties with conflicting interests and thereby causes a disadvantage to one party shall be punished by imprisonment for up to five years or by a fine.”
Protective Purpose and Rationale for Criminal Liability
The criminal law protection is directed at the individual interest of the client, not merely at the general interest in orderly administration of justice. At its core, it is about safeguarding the relationship of trust between client and legal adviser and ensuring the impartiality of legal representation.
Elements of the Offence: Breach of Duty to One’s Own Party
Circle of Offenders
The provision targets persons authorized to provide legal advice, in particular Rechtsanwälte, tax advisors, and notaries. Other groups of persons are not addressed by this rule.
“Same Legal Matter”
Breach of duty to one’s own party requires that the conflicting interests are represented within the same legal matter. “Same legal matter” refers to a unified set of facts or subject matter of proceedings in which the possibility of a conflict of interest actually exists.
Distinction from Similar Situations
Mere knowledge of the opposing party’s interests from prior mandates does not in itself constitute a breach of duty as long as the same legal matter is not involved. Special caution is necessary, however, when mandates are closely linked thematically or factually.
Conflicting Interests
Conflicting interests are spoken of when two clients are pursuing objectively different legal, economic, or other interests in a factual scenario, which cannot be reconciled. This is typically the case when representing both plaintiff and defendant simultaneously in a civil case.
Serving Both Parties
Active “serving” occurs when the person authorized to give legal advice supports both parties in the legal matter. This includes both advising and representing clients, whether in or out of court. Even accepting a mandate for one party when the other is already represented can suffice.
Infliction of Disadvantage
The law requires that a party suffers a disadvantage due to the actions of the legal advisor. It does not have to be a material or financial loss; any deterioration of legal position, including mere loss of opportunities or legal certainty, is sufficient.
Consequences and Sanctions
Criminal Consequences
A proven breach of duty to one’s own party is punishable by imprisonment for up to five years or a fine. The severity of the penalty depends on the extent of the damage and the gravity of the offense.
Professional Consequences
In addition to criminal sanctions, a breach of duty may also result in disciplinary measures. These range from warnings to professional bans, reflecting the special trust relationship that may be severely damaged by the conduct in question.
Civil Liability
Regardless of criminal and professional sanctions, there is also the possibility of civil liability of the legal advisor towards the injured client. Claims for damages may arise, in particular where a financial loss due to breach of duties under the mandate relationship is proven.
Distinction from Conflicts of Interest in Professional Law
Even regardless of criminal evaluation, dual representation of conflicting interests may constitute a professional violation. The professional code for Rechtsanwälte and similar regulations prohibit the representation of conflicting interests. In some cases, these limits are even stricter than under criminal law, so that even an abstract conflict of interest may already be decisive.
Preventive Measures
Mandate Review and Conflict Check
Even at the time of taking on a mandate, it must be carefully examined whether and to what extent a conflict may exist with previous or current mandates. Technical tools such as mandate lists, control systems, or IT-based review systems are used to identify and avoid potential conflicts of interest—and thus possible breaches of party duty—at an early stage.
Duty to Inform and Refusal of Mandate
Legal advisors are obliged to inform clients without delay if there is a risk of dual representation with conflicting interests. Accepting or continuing a mandate is strictly prohibited in such cases.
International Aspects
Comparable rules prohibiting the representation of conflicting interests and corresponding sanctions can be found in many other legal systems. The principle of party independence is internationally recognized as a fundamental guiding principle for the legal profession.
Literature and Further Information
- Criminal Code (StGB), especially Section 356 StGB
- Literature on the Professional Law of Legal Professions
- Guides on Dealing with Conflicts of Interest
Summary: Breach of duty to one’s own party constitutes a serious violation of the mandatory prohibition on representing conflicting interests in the same legal matter for the legal profession. The provisions of Section 356 StGB form the central criminal framework and are designed to protect the individual interests of clients and the integrity of legal practice. Adhering to mandatory control mechanisms and professional requirements is essential to prevent dual representation and thus conflicts and the risk of breach of duty.
Frequently Asked Questions
When does a breach of party duty exist in the legal sense?
Under German law, breach of party duty occurs when a Rechtsanwalt represents conflicting interests in the same legal matter (Section 43a (4) BRAO, Section 356 StGB). This specifically means that the lawyer acts not only in factually identical proceedings but also in cases of close economic, personal, or legal connection between two clients whose interests conflict. Merely providing advice, i.e., out-of-court activity, already suffices formally in this context. The mere attempt to represent conflicting interests is sufficient. What counts is always a concrete legal matter; an abstract clash of interests is not enough. Assessment is always on a case-by-case basis; even indirect advantages for the other party may constitute a violation.
Which statutory provisions govern breach of party duty?
Criminally liable conduct in connection with breach of party duty is governed by Section 356 StGB. Accordingly, a Rechtsanwalt who serves both parties in the same matter, even though they have conflicting interests, is criminally liable. In addition, there is a professional prohibition in Section 43a (4) BRAO (Federal Code for Rechtsanwälte). Further details can be found in Section 3 BORA (Professional Code for Rechtsanwälte) and criminal procedure law, where participation in conflicting interests requires termination of the mandate and prohibits acting. Adherence to these provisions is monitored by both the Bar Associations and the Public Prosecutor’s Office.
What consequences are there for proven breach of party duty?
If a breach of party duty is established, the lawyer faces both criminal and disciplinary sanctions. Criminally, Section 356 StGB provides for imprisonment of up to five years or a fine. Professionally, this may lead to disciplinary proceedings which may result in reprimands, fines, professional bans, or, in extreme cases, exclusion from the legal profession. Additionally, warnings, claims for damages, and civil liability may arise. Mandates may also be withdrawn, and costs may not be reimbursed. Repeated or particularly serious violations regularly result in a review of the practitioner’s entire professional conduct.
How is the presence of conflicting interests assessed in practice?
Whether conflicting interests exist within the meaning of breach of party duty is highly case-specific. The initial step is to examine whether there is an identity or at least a close connection between the legal matters concerned, i.e., whether the lawyer advises or represents both sides in a related context. Any objective actual or even potential conflict of interest is then analyzed. Indirect connections, such as forwarding internal information, are also covered. What is crucial is the risk that confidential information may be used to the detriment of a party or that the lawyer’s loyalty is compromised. Minor overlaps without a relevant connection are not sufficient.
What role does the clients’ consent play?
The written or oral consent of both clients may counter disciplinary allegations in certain cases but does not affect criminal liability under Section 356 StGB. Even if both parties expressly agree, the objective violation of protected legal interests—protection against breach of confidentiality and safeguarding party interests—remains of paramount legal importance. Any such consent may affect possible civil claims for damages, but not the criminal or professional assessment of breach of party duty.
Are there exceptions to the prohibition on representing conflicting interests?
There are only a few, well-defined exceptions to the prohibition. An exception exists, for instance, if the legal matters in question are not the same but are independent cases with no legal, factual, or economic connection whatsoever. If the interests involved do not actually conflict but only abstractly diverge—for example, when representing parties whose interests incidentally differ—there is no breach of party duty. The same applies to clearly marginal points of contact or where the activity is clearly limited to advice only and no information is shared. In dubious cases, however, lawyers are always subject to a strict obligation to be cautious.
What is the impact of violations of the prohibition on breach of party duty on the validity of contracts or court decisions?
A violation of the prohibition on breach of party duty can have far-reaching civil and procedural consequences. Declarations made by the lawyer may be void pursuant to Section 134 BGB due to violation of a statutory prohibition, provided the protected interest so requires. In court proceedings, settlements or acknowledgements can be contested or declared invalid once a breach is credibly demonstrated. In addition, a mandate may be terminated with immediate effect, and any entitlement to fees or reimbursement of costs may be forfeited completely in some cases. Such effects serve to protect the integrity of the legal profession and the interests of those seeking justice.
