Representation of professionals in legal investigations: What matters

Lawyers' court investigations are a particular burden for the professionals concerned - lawyers. Investigation proceedings against a lawyer are often triggered by a complaint made by clients, colleagues, courts, authorities or other third parties to the competent bar association or directly to the Bar Court. But what is important when it comes to representation in investigations by the Bar Court?

What is a judicial investigation by a lawyer?

The lawyers' court investigation procedure is a special procedure that serves to clarify breaches of professional duty by lawyers. It is initiated by the Bar Association if there is a suspicion that a lawyer has breached their professional duties (Section 114 et seq. BRAO). The aim is to clarify whether main proceedings must be instituted before the Bar Court.

Typical case: Allegation of a violation of §§ 43, 43a para. 3 BRAO

A classic starting point for investigation proceedings is the suspicion that a lawyer has violated the applicable professional law - in particular the general professional duties pursuant to Section 43 BRAO and the requirement of objectivity pursuant to Section 43a (3) BRAO.

§ Section 43 BRAO obliges lawyers to exercise their profession conscientiously and to conduct themselves both within and outside the profession in such a way that they remain worthy of the respect and trust that the position of lawyer requires. Pursuant to Section 43a (3) BRAO, one of the basic duties is that the lawyer must not behave in an unobjective manner when practicing the profession. In particular, impropriety exists if falsehoods are deliberately spread or disparaging statements are made for which other parties involved or the course of the proceedings have given no cause.

When interpreting the requirement of objectivity, it must be taken into account that the requirements for objectivity must not be too strict. The provision does not go beyond what is necessary to ensure the proper functioning of the administration of justice. In practice, it is recognized that criminal insults as well as the deliberate dissemination of falsehoods or unfounded disparaging statements violate the requirement of objectivity. At the same time, it should be noted that professional law does not sanction all unobjective conduct, even if a lawyer's conduct is considered improper, distasteful or a breach of good manners.

Reporting obligations in law firms

As a side effect beyond the actual professional proceedings, special reporting obligations arise within the management, particularly in partnerships and especially in large international law firms. In such structures, there is often an obligation to report ongoing professional proceedings to the firm's management and to report regularly on the progress of the proceedings. This not only serves to assess risks and protect the reputation of the law firm, but is often also regulated in internal guidelines or partnership agreements.

Defense strategy and recruitment options

An early and active defense is crucial, especially in preliminary proceedings. The aim is to have the proceedings discontinued as early as possible and thus to prevent a trial. Pursuant to Section 116 BRAO in conjunction with the provisions on discontinuing criminal proceedings, the preliminary proceedings must be discontinued if the suspicion of a professional offense is not confirmed or the guilt is low.