Prohibition of representing conflicting interests

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The prohibition of representing conflicting interests (so-called collision of interests, for lawyers according to § 43a Paragraph 4 BRAO , for patent attorneys according to § 39a Paragraph 4 PAO) means that a lawyer or a patent attorney may not represent any conflicting interests in the same legal matter, what As a result, a lawyer or a patent attorney may not accept a mandate proposed to him because of an existing or feared conflict of interests. If several conflicting mandates have been held, all must be resigned. The conflict of interests wants to prevent special advantages for one client.

The prerequisite for a conflict of interests in the narrower sense is therefore

  • the representation of conflicting interests in the same case.

In a broader sense, there is a conflict of interests if

  • there is a risk of breach of an obligation of confidentiality with regard to information entrusted by a previous client;
  • if knowledge from dealing with a previous mandate enables a new client to gain unjustified special advantages.

In order to adequately take into account the freedom to exercise a profession in Article 12 (1) of the Basic Law , § 3 BORA must be interpreted in a constitutional manner when changing offices. There is therefore no violation of the prohibition on the perception of conflicting interests ( Section 43a (4) BRAO) if the lawyer is not at fault and if there is actually no conflict of interests and no disadvantage for the client.

The conflict of interests can also be explained with the lawyer’s duty of confidentiality under Section 43a (2) BRAO and Section 2 BORA, since the lawyer would have to disclose secrets in the same legal case.

An attorney's contract based on the prohibition of representing conflicting interests will generally be void due to a violation of a prohibition law in accordance with Section 134 of the German Civil Code .

See also

Betrayal

Individual evidence

  1. ^ Karlsruhe Regional Court, judgment of October 6, 2016, Az. 10 O 219/16, Anwaltsblatt 2017, 91.