Emergency attorney
An emergency lawyer is a lawyer who is appointed by the court to represent a party if the party cannot find a lawyer who is ready to represent it.
requirements
The requirements for the assignment of an emergency attorney are regulated in § 78b ZPO. They also apply via references in some other German jurisdictions. For the criminal courts in principle no Notanwalt can coordinate (z. B. for the appeal in proceedings under the Prison Act ) because the courts the possibility of an appeal to the transcript submitted the appeal court of the office, deem sufficient. In cases of necessary defense ( Section 140 StPO), the court appoints a public defender . It is controversial whether the assignment of an emergency attorney for the enforcement procedure is possible.
For penniless parties who have been granted legal aid , Section 121 (5) ZPO contains a special legal regulation. Upon request, the party will only be assigned “a lawyer who is ready to represent”, so that assignment without the consent of the lawyer - unlike in accordance with Section 78b ZPO - is not possible. If the lawyer has prepared the application for legal aid for his client himself, it can generally be assumed that he is also prepared to represent him in the subsequent proceedings in the event of approval; If legal aid is refused, this condition has not been met, so that the lawyer can refuse further representation in the main proceedings or make it dependent on the payment of an appropriate advance payment ( Section 9 RVG ).
The procedure for the appointment of an emergency lawyer is not subject to the compulsory lawyer, this also applies to the immediate complaint against the rejection of the application and a possible complaint to be heard.
Legal process
An emergency lawyer can only be assigned for a process in which representation by lawyers is required; so it has to be a legal process.
No lawyer willing to represent
The prerequisite is that, despite reasonable efforts, the party cannot find a lawyer willing to represent. It must substantiate the requirements. However, the prerequisites must not be met because the party has not paid the lawyer an advance on costs.
The courts apply a very strict standard here. The Federal Court of Justice did not consider it sufficient for a party to seek representation from only four lawyers (out of 28 lawyers admitted to the Federal Court of Justice). Other courts, where there are more lawyers capable of postulating in the judicial district, sometimes demand a significantly higher number of unsuccessful inquiries.
It is generally not enough to ask lawyers for representation on the last day of the appeal period. If, for this reason, there is no lawyer willing to represent the applicant, no emergency lawyer can be assigned to the applicant.
No hopelessness or willfulness
The appointment of an emergency lawyer also requires that the prosecution or defense is not futile or willful.
Stricter requirements are placed on the hopelessness than, for example, the sufficient chance of success in the approval of legal aid. It is not enough that a defeat in the main thing is more likely than a victory, but there must be no conceivable possibility, not even through a detailed legal justification, that the process could end in favor of the applicant. This is primarily intended to protect the lawyer, who cannot be expected to pursue apparently hopeless proceedings.
Willfulness exists, for example, if the applicant was previously represented by a lawyer, but the latter has resigned from the mandate. Here, the applicant must prove that he is not responsible for the resignation. If the applicant has already been assigned an emergency attorney and has successfully applied for release from the obligation, the appointment of another emergency attorney is not considered under any circumstances.
Consequences of the application
If the application is successful, the applicant will be assigned a lawyer by the chairman of the trial court. According to Section 78c (1) ZPO, the chairman can choose from all lawyers who are established in the district of the trial court. Both the applicant and the lawyer concerned have the right to appeal immediately against the selection of the lawyer.
If the application is rejected, an immediate appeal is also available.
If the deadline for filing an appeal has expired and the party has submitted an application for the assignment of an emergency lawyer within the deadline, the attorney assigned to file the appeal can apply for restitution to the previous status .
The lawyer can make the representation dependent on the payment of an advance payment, but otherwise he is obliged to represent the party according to § 48 BRAO and can only apply to the trial court for exemption for an important reason. If this is rejected, the legal remedy of an immediate complaint is also available here.
Web links
- Case law on § 78b ZPO dejure.org, accessed on April 7, 2017
Individual evidence
- ↑ OLG Hamm, March 11, 2014, AZ 1 Vollz (Ws) 105/14
- ↑ for this: OLG Cologne, October 9, 2007, AZ 52 Zs 494/07; OLG Bamberg, May 7, 2007, AZ 3 Ws 113/2006; against: OLG Hamm, decision February 11, 2014, AZ 1 Ws 24/13 ; Düsseldorf Higher Regional Court, March 9, 1999, AZ 1 Ws 155/99/1 Ws 163/99
- ↑ PKH / Advice Aid from the Munich Bar Association , accessed on April 7, 2017
- ↑ BGH, March 24, 2011, AZ I ZA 1/11
- ^ BGH, December 7, 1999, AZ VI ZR 219/99
- ↑ BGH, May 7, 2003, AZ IV ZR 133/97
- ↑ BAG, August 25, 2014, AZ 8 AZN 226/14 (A)
- ↑ BGH, December 18, 2013, AZ III ZR 122/13
- ↑ No lawyer approved by the BGH wants to sue - right to appoint an emergency lawyer? Haufe-Online-Redaktion, March 14, 2014
- ↑ To appoint an emergency lawyer according to § 78b ZPO before the BGH after the resignation of the previous legal representative Verlag Dr. Otto Schmidt , January 20, 2014
