Prohibition of circumvention (legal professional law)
The prohibition of circumvention or the prohibition of circumvention of the opposing attorney is a provision of the professional law of lawyers and patent attorneys . According to this, a lawyer in a legal dispute for his client is not allowed to directly contact a party who is also represented by a lawyer, but has to contact his lawyer.
European Union
At the European level, the prohibition of circumvention is in 5.5. of the Code of Conduct for Lawyers in the European Union (CCBE) in the section “Conduct towards colleagues”: “The lawyer is prohibited from contacting a person who he knows is a lawyer about a particular matter has been instructed to represent you or has used his assistance, unless this lawyer has consented and he keeps him informed. "
Germany
In Germany, the prohibition of circumvention is regulated in § 12 BORA of the professional code of conduct for lawyers (BORA): "The lawyer may not directly contact or negotiate with another party without the consent of the lawyer." Previously, it was part of the professional code of conduct . According to Section 12 (2) of the BORA, the prohibition does not apply in the event of imminent danger , but the lawyer of the other party involved must be informed immediately; a copy of any written notification must be sent to him immediately.
The main purpose of the prohibition of circumvention is to protect the opposing client . In addition, the bypassed lawyer and proper litigation are protected.
A violation of the prohibition of circumvention leads to a professional sanction depending on the severity of the violation.
A negligent violation of the prohibition of circumvention is also possible. In this case, an instructive note is sufficient as a professional sanction from the Bar.
However, a breach of the prohibition of circumvention does not trigger an anti-competitive claim by one lawyer against the other lawyer. Because § 12 BORA is to be seen as a competition law neutral norm, which basically does not offer any protection against legal competition.
For patent attorneys in Germany, the prohibition of circumvention is regulated in § 17 BOPA of the professional code of practice for patent attorneys (BOPA): "The patent attorney may not directly contact or negotiate with another party without the consent of the patent attorney or attorney, if he is known or is out the circumstances, in particular from the file situation, shows that the other party involved in this matter is represented by a patent attorney or a lawyer. "
Austria
In Austria, the prohibition of circumvention is regulated in Section 18 of the guidelines for practicing the legal profession and for monitoring the duties of lawyers and trainee lawyers (RLBA) of the Austrian Bar Association.
Switzerland
In Switzerland, the prohibition of circumvention is regulated in Art. 28 "Contacting the other party" of the professional code of the Swiss Bar Association.
England and Wales
In England and Wales, the prohibition of circumvention is regulated in Section IB 11.4 of the Code of Conduct of the Solicitors Regulation Authority.
United States
In the United States, each state has separate professional law for attorneys. In New York State, which is decisive for the legal profession, the prohibition of circumvention can be found in Rule 4.2 of the "Rules of Professional Conduct" of the New York Bar Association.
Web links
- BORA Professional Code for Lawyers (as of November 1, 2018) (PDF file; 163 kB)
- BOPA The Professional Code of Patent Attorneys (as of March 1, 2014) (PDF file; 160 kB)
Individual evidence
- ↑ Römermann / Günther , Professional Code for Lawyers, 9th Ed., § 12 Rn. 1.
- ↑ Römermann / Günther , Professional Code for Lawyers, 9th Ed., § 12 Rn. 3.
- ↑ Feuerich / Weyland / Böhnlein , Bundesrechtsanwaltsordnung, 8th edition, § 12 BORA marginal no. 1.
- ↑ Römermann / Günther , Professional Code for Lawyers, 9th Ed., § 12 Rn. 20th
- ^ Judgment of the BGH from October 26, 2015, AnwZ (Brfg) 25/15, NJW-Spezial 2016, 30
- ↑ OLG Nuremberg, NJW 2005, 158