Advisory assistance

Basic data
Title:	Law on Legal Advice ; and Representation for ; Low Income Citizens
Short title:	Counseling Assistance Act
Abbreviation:	BerHG
Type:	Federal law
Scope:	Federal Republic of Germany
Legal matter:	Administration of justice
References :	303-15
Issued on:	June 18, 1980 ; ( BGBl. I p. 689 )
Entry into force on:	predominantly January 1, 1981
Last change by:	Art. 140 Regulation of August 31, 2015 ; ( Federal Law Gazette I p. 1474, 1497 )
Effective date of the ; last change:	September 8, 2015 ; (Art. 627 of August 31, 2015)
Weblink:	Text of the law
	Please note the note on the applicable legal version.

The advisory assistance (including legal advice Help) is in Germany , a benefit for the litigants, the costs for advice or representation by a lawyer can not apply and where no other reasonable option is available. Relevant is the Counseling Assistance Act (BerHG). Advisory assistance is provided for exercising rights outside of judicial proceedings as well as for obligatory conciliatory proceedings according to § 15a EGZPO .

history

Up until the introduction of the advisory support, advice in out-of-court matters was not regulated uniformly across the country; various state regulations existed in parallel. The federal government wanted to change this, but not replace existing offers of out-of-court legal advice. To this end, some federal states carried out model tests as part of the legislative process, which showed that the largest gaps in out-of-court legal protection exist in civil and administrative jurisdiction . In the other areas of law, the legislature saw legal advice already adequately covered by other offers: in labor law through legal advice from the trade unions, in social law through social associations such as Sozialverband Deutschland SoVD , the VdK and in tax law through wage tax assistance associations . Some federal states extended the advisory assistance due to state regulations to include labor and social law, for example due to a regulation in the unification treaty for all states of the former GDR.

On the basis of a lawsuit brought by a person seeking justice who lived in a federal state in which this was not the case, the Federal Constitutional Court ruled that the exclusion of labor law matters violated the principle of equality in Article 3 (1) of the Basic Law. Precisely because the counseling aid wants to provide out-of-court legal protection for the unprofitable, they must not be referred to membership in a trade union, which is regularly associated with costs. With the law of September 14, 1994, the legislature then expanded the advisory assistance to include labor law and also to social law, because it was difficult to convey that advisory assistance could, but not, be granted for social assistance matters for which the administrative jurisdiction was responsible at the time for example for pension matters. The only thing that was excluded was tax law.

A legal protection seeker who sought legal protection in child benefit law sued against this exclusion of tax law from advisory assistance. The Federal Constitutional Court ruled that this regulation also violates the principle of equality, as the sole exclusion of tax law is not objectively justified. The legislature reacted and deleted the final list of areas of law for which advisory assistance could be granted, without replacement.

requirements

The prerequisite for the granting of counseling assistance is that the person seeking legal advice cannot raise the necessary funds according to his personal and economic circumstances ( Section 1 (1) No. 1 BerHG). This requirement is met if the requirements for the installment-free approval of legal aid are met ( Section 1 (2) BerHG).

Another prerequisite is that the legal seeker does not have other options for assistance that the legal seeker can reasonably be expected to use ( Section 1 (1) No. 2 BerHG). The Counseling Assistance Act wanted to close loopholes in out-of-court legal protection, but not to displace existing help. Such possibilities of assistance can, for example, the existing legal protection insurance , consumer advice centers , debt counseling centers , advice from authorities within the scope of their responsibility, in particular advice from the youth welfare office in accordance with Section 18 (1) No. 1 SGB VIII in the enforcement of child maintenance , free advice from the legal profession or the Be bar associations or through charitable organizations. In addition, the local court's advisory services responsible for filing the application provide advice in simple cases. It cannot be expected of a person seeking legal advice to seek legal advice from the authority against whose decision he has lodged an objection and which is also responsible for deciding on the objection itself.

Finally, the exercise of rights must not be willful ( Section 1 (1) No. 3 BerHG).

Providing advice

Advice is provided by lawyers or legal advisers ( Section 3 (1) BerHG). Advisory assistance can also be provided by the local court if the request of the person seeking legal advice can be met by providing immediate information, a reference to other options for assistance or the inclusion of an application or a declaration ( Section 3 (2) BerHG). Tax advisors can also provide advice (including representation) in all tax and tax law matters (Section 3 (1) sentence 2 BerHG). The advisory assistance consists of advice and, if necessary, representation ( Section 2 (1) BerHG). According to § 49a BRAO , the lawyer is obliged to provide advisory assistance in spite of the sometimes considerably reduced remuneration claims . In individual cases or for an important reason, however, he can reject or terminate them (Section 49a (1) sentence 2 BRAO, Section 16a (3) BORA). The reasons (e.g. occupational overload) are not conclusively stated in Section 16a (3) of the Professional Code for Lawyers (BORA).

Advice is generally provided for all legal matters, but for matters of criminal law and administrative offense law only in the form of advice ( Section 2 (2) sentence 3 BerHG).

In the federal states of Bremen and Hamburg there is no advisory assistance, but public legal advice . Institutions set up for this purpose (legal information and comparison offices) provide legal advice. Going to a lawyer is not supported. In Berlin, those seeking legal advice have the right to choose between public advice and legal advice. ( § 12 BerHG)

Procedure

application

The counseling assistance must be applied for at the local court at the place of residence of the person seeking legal advice . The application must be made by the person seeking the right. The lawyer is obliged to point out the possibilities of advisory and legal aid if there is a justified cause (Section 16 (1) BORA). The lawyer is not obliged to submit the application, but if he does so, there is a risk that if the advisory assistance is refused, he will settle his own extrajudicial activity for the submission of the application to the client . When applying for counseling assistance, documents must be submitted that reveal a specific legal problem, as well as ongoing proof of income and expenditure. The applicant must substantiate the individual circumstances that justify the need for advice; it is not sufficient to merely assert the need for legal advice.

If the person seeking legal advice first turns to a counselor and should then subsequently apply for the approval of counseling assistance, then according to Section 6 (2) BerHG a period of four weeks for submitting an application, beginning with the start of the advisory assistance activity, d. H. usually with the first consultation.

decision

The Rechtspfleger decides on the application for advice . If the Rechtspfleger rejects the application for the granting of advisory assistance, the reminder according to 7 BerHG possible, on which the judge at the local court makes a final decision. The reminder is possible for an unlimited period in these cases due to Section 24a (2) RPflG. The judicial decision is final. For the income and financial situation, however, the time of approval is decisive.

Subsequent cancellation of the license

The advisory court can acc. § 6a BerHG cancel the advisory assistance again if

the prerequisites for the authorization were not met at the time of the authorization and no more than one year has passed since the authorization or
the person entitled to counseling assistance has obtained something as a result of the counseling or representation and no longer fulfills the personal or economic requirements for the permit due to what has been obtained. Cancellation for this reason requires an application from the adviser and the fulfillment of further requirements by the adviser.

Costs and fees

Costs for those entitled to counseling assistance

The lawyer receives fees for his work exclusively from the state treasury, but he can also pay an additional fee of € 15.00 including sales tax (before August 1, 2013 € 10.00 including sales tax) according to No. 2500 Request VV ( § 44 RVG ). As a result, the lawyer assumes the difference between the statutory remuneration claim and the remuneration for the advisory assistance as a special social contribution.

Remuneration agreements between the legal seeker and the lawyer were void until December 31, 2013 to the extent that advice was granted. With the reform of the law on advisory assistance on January 1, 2014, however, remuneration agreements no longer become null and void; instead, Section 8 (2) BerHG only prevents the assertion of claims from an otherwise effective remuneration agreement. If the approval of advisory assistance is subsequently revoked, the lawyer can also re-assert claims for remuneration from a remuneration agreement.

Attorney's fees

The lawyer receives for his activity from the state treasury regardless of the amount in dispute, importance or difficulty of the matter according to. No. 2500ff. VV RVG flat-rate payments between 35.00 and 85.00 EUR. If the legal activity leads to an out-of-court settlement or settlement of the matter, an additional fee of EUR 150.00 is due. For activities in insolvency proceedings there is a fee based on the number of creditors up to EUR 675.00 (for more than 15 creditors). In addition to the fees, there is a right to reimbursement of the necessary expenses including VAT, as well as the above-mentioned claim against the person entitled to advice directly in the amount of 15.00 EUR gross.

literature

Horst-Reiner Enders: Legal aid . In: Hans-Ulrich Büchting, Benno Heussen (Hrsg.): Beck'sches Rechtsanwalts Handbuch . 9th edition. Munich 2007, ISBN 978-3-406-55076-8 , p. 1511 ff. (= L. Legal aid and advice, marginal numbers 1-91 = I. Legal aid).
Armin Schoreit, Jürgen Dehn, Ingo Michael Groß: Advisory assistance, legal aid, legal aid - BerH / PKH / VKH - . 10th edition. CF Müller, Heidelberg et al. 2010, ISBN 978-3-8114-4432-4 , pp. 3–107.

Web links

Individual evidence

↑ BVerfG, December 2, 1992, AZ 1 BvR 296/88
↑ Federal Constitutional Court, decision of October 14, 2008, Az. 1 BvR 2310/06
^ Federal Constitutional Court , decision of May 11, 2009, Az. 1 BvR 1517/08
^ Federal Constitutional Court, decision of November 25, 2009, Az. 1 BvR 2464/09, quoted from juris
↑ OLG Hamm , decision of May 4, 2010, Az. I - 15 W 105/10, 15 W 105/10

[1] BVerfG, December 2, 1992, AZ 1 BvR 296/88

[2] Federal Constitutional Court, decision of October 14, 2008, Az. 1 BvR 2310/06

[3] Federal Constitutional Court , decision of May 11, 2009, Az. 1 BvR 1517/08

[4] Federal Constitutional Court, decision of November 25, 2009, Az. 1 BvR 2464/09, quoted from juris

[5] OLG Hamm , decision of May 4, 2010, Az. I - 15 W 105/10, 15 W 105/10