Can a lawyer appear against his client

A. Conflicts in the everyday life of a criminal defense lawyer

The offense of betrayal of parties (Section 356 of the Criminal Code) reads:

(1) A lawyer or other legal adviser who, in the matters entrusted to him in this capacity in the same legal case, serves both parties in breach of duty through advice or assistance, is punished with imprisonment from three months to five years.

(2) If the same person acts with the consent of the other party to the detriment of his party, imprisonment of one year to five years applies.

The norm is also known as the “domestic offense of the legal profession”. It is a so-called special offense, i.e. a criminal norm that can only be committed by lawyers or similar professions. Lawyers are unilateral party representatives. You have to stand up for the rights of your clients with all your might. For this reason, the criminal offense of party betrayal is intended to ensure the "constant role of the legal adviser in the legal representation of interests".

As noble and comprehensible as these legislative purposes are - the criminal offense also harbors risks for a fair constitutional state. If misinterpreted, it can be used as a pressure tool by the state to “switch off” combative and inconvenient lawyers, especially criminal defense lawyers. The offense of betrayal of the party is therefore also criticized as a symbol of state mistrust of the legal profession.

In practice, there are considerable uncertainties when applying the penal norm. In addition to some disputes regarding the interpretation, on closer inspection it also becomes apparent that diverging standards are applied in the application of the criminal offense in different areas of law. With divorce lawyers, inheritance law advice and mediators, as in white collar crime, a more generous tendency can be seen. In contrast, there is a real risk for defense lawyers who, for example, are involved in allegations against the Narcotics Act, of being targeted by the prosecutors themselves.

Almost every lawyer has come across a potential conflict of interest in their professional life. There also seem to be very different behavior patterns among lawyers when it comes to reacting to such dangers. While some lawyers act according to the motto “If it could be dangerous in any way, I'd rather keep my hands off it”, there are other colleagues who trust that “nothing will happen”.

In practice it is actually often "Russian roulette" to get involved in certain critical situations. In most cases, nothing actually happens. However, if it is by chance and criminal proceedings are initiated against a lawyer for betrayal of the party, this often has drastic consequences for the person concerned.

I. Consequences of a Conviction for Treason

If there is a final conviction of a lawyer for betrayal of the party, a subsequent professional proceeding is as safe as the amen in the church. A conviction for betrayal of a party can - in addition to the actual punishment - result in the severest of all professional sanctions, namely an exclusion from the profession (cf. § 114 Paragraph 1 No. 5 BRAO). In addition, a violation of § 356 StGB (or the corresponding professional regulations) can lead to the nullity of the legal contract. Under certain circumstances, this has the consequence that fee claims do not apply. Consideration should also be given to asset recovery of values ​​that go beyond this.

In practice there are only relatively seldom - then mostly in clear cases - to final convictions for betrayal of the party. In problematic borderline cases, many of those affected get involved in a “lazy deal” and accept a suspension of the criminal proceedings against payment in accordance with Section 153a of the Code of Criminal Procedure. From the point of view of the rule of law, this is unpleasant, as important legal issues remain unanswered and the existing opportunities for abuse are perpetuated.

Incidentally, the lawyers concerned should carefully consider whether the “sparrow in hand” (= attitude against payment) compared to the “dove on the roof” - namely a clear acquittal - is really the better choice. In particular, it must be kept in mind that discontinuing an investigation in accordance with the opportunity provisions of Sections 153 et seq. StPO can nevertheless have consequences under professional law. An isolated asset recovery cannot be ruled out either.

II. Relationship to other norms of criminal law

a) Section 146 of the Code of Criminal Procedure - prohibition of multiple defense

1. General requirements

The offense of betrayal of parties and the corresponding professional regulations are historically older than the prohibition of multiple defenses standardized in Section 146 of the Code of Criminal Procedure. This was only introduced in the 1970s as part of the so-called Stammheim processes. Until then, multiple defenses of several suspects in criminal proceedings were allowed as long as there was no material conflict of interests.

The scope of application of Section 146 of the Code of Criminal Procedure overlaps in part with that of Section 356 of the Criminal Code. In many sub-areas, the party betrayal also covers case constellations that do not fall under the prohibition of multiple defenses. This repeatedly leads to fatal errors about which client can be accepted and which cannot.

146 StPO is therefore significantly narrower in the area of ​​application than the norms that regulate a conflict of interests, since this is only about defense in criminal proceedings. In § 146 sentence 1 StPO is linked to "the same act". This is based on the so-called procedural offense within the meaning of Section 264 of the Code of Criminal Procedure. This is understood to mean a uniform historical process that differs from other similar or similar events.

If there is a case of so-called identity of offense, a conflict of interests is irrefutably suspected. It is therefore not possible to allow an exception in a specific case - even if there is agreement that there is no conflict of interests in terms of content.

The prohibition of multiple defenses according to § 146 sentence 2 StPO, i.e. in the case of procedural identity, is even more formal. The only thing that matters here is whether a public prosecutor combines a case against several suspects. If the procedures are separated again, the ban no longer applies. The formalization of § 146 sentence 2 StPO can lead to cases in which a multiple defense is prohibited in the case of procedural identity, although neither “the same act” nor a conflict of interests is present.

146 StPO does not prohibit several defense lawyers from discussing one another and agreeing on a common line of defense. Such a one Base defense is basically permissible under professional law and criminal procedure - and in many cases also makes sense. However, even in such constellations, care must be taken that each lawyer actually only represents the interests of his own client in the context of the jointly agreed defense. If a defense attorney submits to the will of a colleague in the context of a basic defense, for example because he expects the latter to provide him with future lucrative mandates, he goes to the entrance area of ​​the party treason.

2. Successive multiple defenses

One of the first things that every young professional who wants to become a criminal defense lawyer learns is that the so-called successive multiple defense is not prohibited by Section 146 of the Code of Criminal Procedure. This means that you can in principle represent an accused if the mandate with another accused has already been concluded.

An evil trap lurks here. Because even a successive multiple defense is a party betrayal if the interests of the respective client collide. Section 356 of the Criminal Code does not require “simultaneity” of the conflict of interests. Theoretically, a conflict of interests can still reveal itself years later - with the result that at least the objective offense of Section 356 of the Criminal Code is fulfilled.

This problem arises in particular in case constellations in which the previous procedure did not become legally binding or was discontinued without the use of a criminal complaint. For example, if a defense attorney learns within the scope of the “second mandate” that another accused, whose criminal proceedings have been discontinued in accordance with Section 170 (2) StPO, was in fact the perpetrator, the attorney has a problem.

A conflict of interest in the case of staggered mandates can also arise entirely unintentionally. Sometimes, after many years, a lawyer no longer remembers that he has already had contact with a client who suddenly comes across as a witness in a main hearing. Theoretically, a lawyer who has accepted a mandate is bound “forever” to the resulting interest. If a conflict arises after years, the resolution of the relevant professional colleague should in any case be denied.

3. Witness assistance

The prohibition of multiple defenses in Section 146 of the Criminal Code does not apply to witnesses and co-plaintiffs. Here too, however, there is the possibility of a conflict of interests. This would undoubtedly be the case if two witnesses, who are heard in the same preliminary investigation, accuse each other of aiding and abetting.

Even a can not be entirely unproblematic Special knowledge or be a "passive knowledge". For example, if one of the witnesses “confesses” to the lawyer that he and another witness were involved in a crime committed by the main accused, the lawyer knows more than the investigating authorities. If he now also represents the other witness, and if the latter denies involvement with the lawyer, this leads, at least objectively, to a collision of the facts.

However, such a constellation does not necessarily have to lead to a conflict of interests. As long as all parties involved agree that no information should be actively given to the investigating authorities, it makes sense to jointly invoke a right to refuse to provide information under Section 55 of the Code of Criminal Procedure and to remain silent. The lawyer did nothing wrong. He correctly instructed each of the representatives he represented about the possibilities of Section 55 of the Code of Criminal Procedure and at the same time made the client's wishes come true vis-à-vis the investigating authorities.

After all this, a criminal conflict of interests could only be assumed if there was already one potential conflict of interest would be enough. However, this must be answered in the negative (see below).

b) Professional regulations: § 43a BRAO, § 3 BORA

The professional regulations of § 43a Paragraph 4 BRAO (Federal Lawyers' Act) or § 3 BORA (Professional Code for Lawyers) also presuppose a conflict of interest. In this respect, its scope essentially corresponds to that of Section 356 of the Criminal Code.

In contrast to the criminal offense of party betrayal, however, no intent is required for professional law. Negligent violations can also result in professional sanctions.

In addition, Section 43a (4) BRAO also applies to partners or co-partners in a law firm. Section 3 BORA also extends the interpersonal area of ​​application to people who work with the lawyer, i.e. employees, freelancers or colleagues in shared offices. However, Section 3 (2) of the BORA expressly enables a declaration of consent to be obtained from the client. The dangers emanating from the professional regulations can therefore be mitigated by taking appropriate precautionary measures.

The legal consequence of a violation of the prohibition on representing conflicting interests is regulated in Section 3 (4) BORA. Anyone who realizes that he has accidentally got into a conflict of interest (including with a professional colleague) must inform his client immediately and terminate all mandates in the same legal matter.

c) In-house lawyers

A special provision to avoid conflicts of interest is contained in Section 46c BRAO for in-house lawyers. If criminal or fine proceedings are directed against the employer or its employees, they may not act as their defense lawyer.

I. Attorney or other legal counsel

First of all, all lawyers, i.e. in particular criminal defense lawyers, fall under the special offense of Section 356 of the Criminal Code. Patent attorneys or university professors who are appointed as defense counsel in accordance with Section 142 (2) of the Code of Criminal Procedure can also commit betrayal of parties. Lawyers are not included if they work in a completely different function, e.g. as insolvency administrator, executor, broker or managing director of a GmbH. In each individual case, however, you will always have to look carefully to see which specific activity is actually in the foreground.

The comments regarding Notaries. Apparently a notary has never been convicted of treason. Notaries can be subsumed under the term “other legal counsel” without any problems, at least according to the wording. However, the professional status of a notary is not necessarily comparable to that of a lawyer. Notaries are subject to a so-called neutrality obligation. According to Section 14, Paragraph 1, Sentence 2 of the Federal Notary Code, a notary is not a representative of a party, but an independent and impartial supervisor of the parties involved.

Nevertheless - or precisely because of this - there are many arguments in favor of viewing the notary as "other legal advisor" within the meaning of Section 356 of the Criminal Code. This is also a criminal offense if he betrays one of several parties to the detriment of another or gives preference to one of several unobjective motives. In practice, the inhibition threshold to initiate criminal or professional proceedings against notaries seems to be significantly higher than, for example, against tax advisors.

II. Act of betrayal of the party

1. Entrusted case

The threshold at which a case is “entrusted” to a lawyer is low. In any case, this is not the case with purely private conversations. The same applies to abstract legal information that is given, for example, in the context of training courses or lectures (e.g. "The statute of limitations in criminal law is 5 years", "You have a criminal record from 90 daily rates").

But even if, for example, a lawyer is called to a search in a company and it is not quite clear at the beginning who he is actually representing (the company, the managing directors as potential accused, the employees as witnesses, etc.), the boundary can become fluid be.

In the case law, the formula is used that a case is entrusted when a matter is submitted with the offer of the transfer of mandate and the lawyer makes this offer does not immediately reject.

This formula is extremely problematic on closer inspection. For example, if a lawyer visits a potential client in the prison and concludes a fee agreement with him, a legal matter would already be “entrusted” even if the client never pays the agreed fee and the mandate is soon resigned as a result. It is therefore preferable to base some of the literature on the fact that a matter is only "entrusted" when the potential client can legitimately assume that the lawyer actually takes over a client. This is at least not the case in cases in which a client refuses to pay the fee demanded by the lawyer.

2. Entrusted to “Him”

The conflicting mandates must be entrusted to "him" - that is, the lawyer in person. Criminal law and professional law diverge in partnership matters.

It is true that there is a violation of Section 3 (2) sentence 1 BORA if a Law firm colleague advised the other side in the same case in the conflicting interest.

The party betrayal presupposes, however, that the perpetrator personally acts for both sides - the professional violation of Section 3 (2) sentence 1 of the BORA is therefore not penalized.

3. Improper service towards both parties

a) party

Parties are the natural and legal persons legally involved in a legal matter. It is sufficient for the party status that the person pursues a legal concern in the matter in question.

In criminal proceedings, the accused or potential co-accused belong to the group of protected "parties" just like the victims of a crime or witnesses.

The case law has not always seen it that way. Only a few decades ago, the application of Section 356 of the Criminal Code in criminal law with regard to accused of a crime was rejected with the argument that they have a purely factual interest at the outcome of the proceedings. Interestingly, a similar argument is still being used in the discussion today as to whether the public prosecutor's office can also be a party within the meaning of Section 356.Correctly, this also has a not only “factual” interest, but also a legal interest in the outcome of a proceeding.

The literature view, according to which public prosecutors can also be a party within the meaning of Section 356 of the Criminal Code, must therefore be followed. This has a very practical consequence, for example, in the case of agreements on the outcome of criminal proceedings. In the course of such conversations, defense counsel may not divulge mandate secrets in the “quiet little room”, nor signal with a “wink” that the client is guilty. Even more so, as long as there is no explicit mandate from the client, such violations of the client's interests may not be carried out with the motive of “pleasing” the public prosecutor or the court - for example because one hopes that this will benefit other proceedings.

b) "Serve"

The term “service” covers every professional activity of the perpetrator, through which the interests of the party concerned are to be promoted. What is required is the actual provision of a legal service - either through advice or assistance. The term is interpreted very broadly. Failure to do so in breach of duty can also serve. This would be the case, for example, if a lawyer renounces the right to inspect files or procedural contradictions because he does not want to spoil the “good relations” with the other side.

The mere notification of a lawyer’s willingness to accept a client does not constitute “serving”. However, it is sometimes claimed that this is in any case present if a lawyer has presented himself to the court and / or given a corresponding power of attorney on the files Has.

c) Same case

The same legal case within the meaning of Section 356 of the Criminal Code includes all matters "in which several parties may confront each other in opposing interests". So it depends on the factual and legal content of the entrusted interests. The scope of the betrayal of parties goes beyond that of the prohibition of multiple defenses in the case of identity of the offense. In particular, the term “the same legal case” is not identical to that of the “procedural act” within the meaning of §§ 146 S. 1, 264 StPO.

In the case of complex or multi-layered life issues, the decisive factor is whether these can only be given a uniform legal view.

For example, if a lawyer generally represents a company in the prevention of corruption and in another procedure a (former) employer against the company in dismissal protection proceedings, this should in any case not be the same legal matter within the meaning of Section 356 of the Criminal Code. There is therefore no conflict of interest, at least legally. Whether such behavior by a lawyer is tactically or economically wise is another matter.

d) "Improper service"

1. Objective or subjective interest as a starting point?

The central concept of party betrayal that needs to be interpreted is the “non-compliance” of service. The criminal law itself gives no indication of how exactly this rather vague legal term should be concretized.

It is already controversial whether the assessment of whether the behavior of a lawyer is “contrary to duty”, whether it depends on the specific, subjective interests of the client or whether the starting point is an objective, “well-understood” interest of the client.

The prevailing opinion and also the case law are based on the actual - subjective - interests of the respective client. In other words, even if a client is unreasonable, the lawyer has to fulfill his mandate and must not act against the will of the client.

Every criminal defense attorney is aware of this problem. Sometimes it takes a very professional, detached attitude to counteract the danger of making yourself “the slave of your own client”. An early clarification of the client's interests and the willingness of the lawyer to represent them is important.

An example of a lawyer who believed that he was able to assess the real interests of his clients better than they himself was provided by the so-called "Oldenburg Railway Conflict" in recent years. In an administrative dispute with Deutsche Bahn, a renowned specialist in administrative law represented the interests of several citizens vis-à-vis the railway company at the same time. In a court hearing, Deutsche Bahn then made a proposal for an amicable settlement, which the lawyer felt was very beneficial to the plaintiffs. He was personally convinced that “more was not to be got” and therefore, by virtue of his legal power of attorney, agreed to the proposed settlement.

However, the plaintiffs had expressly forbidden the lawyer to do just that. They had made it clear in advance that they did not want to compromise and that they wanted to fight the dispute through to the last resort in an emergency. With the consent to the court settlement, the lawyer had therefore clearly opposed the actually declared subjective will of his clients.

As a result, criminal proceedings were initiated against the lawyer. This was initially discontinued by the public prosecutor's office, but then resumed in the subsequent enforcement proceedings by the Hamm Higher Regional Court (see decision of the OLG Hamm dated October 9, 2014, Az. 4 Ws 227/14). In a lengthy criminal proceeding, the Münster Regional Court sentenced the lawyer to a suspended sentence of one year and four months for betrayal of the party - which means the accused's lawyer will end his career with certainty.

The appeal filed by the lawyer was partially successful. However, in its decision of November 21, 2018 (4 StR 15/18), the BGH confirmed the basic criminal liability for betrayal of parties in the present constellation. The decision is correct - emphasizes that the interpretation of Section 356 of the Criminal Code primarily depends on the client's actual will - and not on what would be objectively good and right for him.

2. Examination of the breach of duty

Correctly, the Examination of the breach of duty in the following steps:

  1. The starting point is the "properly informed, discerning and free decision-making “client. The necessary condition of the legal assignment is that the client is informed about all pending steps. In the event of impending conflicts, the client must be informed in good time. In addition, a lawyer must point out to his client if he believes that he is acting unreasonably.
  2. Under the condition that the client is informed of all the circumstances and also of the attorney's assessments, the lawyer is of the correct opinion in principle subjective will which the lawyer has to implement.
  3. First up this The basis is then to determine whether, for example, when representing several clients there are similar interests or whether the respective subjective interests are incompatible. Only in the latter case is there a collisionwhich leads to a conflict of interests and thus to a "breach of duty".

As the case of the "Oldenburg Railway Conflict" shows, betrayal of the parties can also exist if there are either different interests within a group represented by the lawyer, or if a lawyer expressly opposes the explicitly stated will of his clients. A party betrayal is also conceivable if a defense attorney pleads for a suspended sentence in a court plea, even though the client has expressly instructed him to seek an acquittal. This applies - assuming a properly informed and discerning client - even if the demand for acquittal is unreasonable and certainly leads to ruin in court.

3. Justifying consent?

Although the subjective interest of the respective client is, according to the prevailing - and correct - opinion, the starting point for the examination of the "breach of duty", there is broad consensus that justifying consent as a justification does not remove any breach of duty.

The background is the legal interests protected by Section 356 of the Criminal Code. According to the prevailing opinion, the criminality of party treason persecutes one dual protective purpose:

  1. On the one hand, the client should be protected from “betrayal” or “overflowing to the other side”. So this is about the “integrity interest of the client”. Taken alone, this protected property would be at the disposal of the respective client, i.e. it would be capable of giving consent.
  2. According to the overwhelming opinion, betrayal of the party is also punishable in order to preserve the “reputation of the legal profession as a whole”. It is therefore a matter of a supra-individual legal good that is not at the disposal of the individual. The client can therefore determine the direction in which the lawyer works through his or her subjective assignment. Within this limit, however, as an independent body responsible for the administration of justice (cf. § 1 BRAO), the lawyer is jointly responsible for ensuring that it remains functional and with integrity.

For this reason, a lawyer should not, for example, "negotiate schizophrenia", i.e. simultaneously represent two positions that are logically incompatible. This would either be the case if a lawyer on behalf of a wife files a criminal complaint against the beating man, then defends him in subsequent criminal proceedings for bodily harm and pleads for acquittal. It would be equally contradicting itself if a criminal defense attorney represented two passengers in a car, both of whom claim to the police that they were the driver themselves.

4. Potential or actual conflict of interest?

a) Issue

If the respective subjective interests of the clients have been established after the examination program outlined above, then in cases where several accused persons are represented in criminal proceedings at the same time, the last step is to ask whether these interests are in harmony with one another. At this level, it is disputed whether "service contrary to duty" within the meaning of Section 356 of the Criminal Code already exists if it is seems possiblethat interests diverge, or whether such a collision current and specific must be available.

A case in which this dispute played a role was decided by the Nuremberg District Court in May 2018. This took place in narcotics criminal law. Two suspects were named as customers of his drug empire by the same “drug king”, who made use of the leniency program in Section 31 of the BtMG. The defendants were represented by the same lawyer as criminal defense attorney.

The Nuremberg-Fürth public prosecutor initiated proceedings against the Nuremberg defense attorney. After the latter refused to suspend the criminal proceedings against payment, the defense attorney was convicted by the Nuremberg District Court for betrayal of the party. The case is not yet final (as of October 2018).

(4. Potential or actual conflict of interest?)

b) The opinion of the Nuremberg Public Prosecutor's Office

If one believes that it is on one actual Conflict of interest arrives, the Nuremberg colleague has not made himself a criminal offense. Both clients knew each other. They also knew that they were both incriminated by the same key witness. In the specific constellation, they may even have expected advantages from being defended by one and the same lawyer.

Indeed, such a defense can be particularly effective when both accused have been wrongly incriminated. But even if they are guilty and want to confess, it can make perfect sense to coordinate interests, for example if you don't want to burden each other out of friendship.

The Nuremberg public prosecutor's office, and also the Nuremberg District Court in the first instance, saw the matter differently. You think that's already a potential Conflict of interest means that a lawyer has to keep his hands off a client. In reality, this is based on the following thought: If one of the two accused decides to make a confession, it is in the interests of the public prosecutor that he should also incriminate the other.

From the point of view of the public prosecutor's office, the defense attorney is now prevented from advising his client to provide clarification at the expense of the other. The public prosecutor's office therefore affirms a party betrayal even if the respective client does not even think of incriminating his co-accused - even if this is not an issue, since both are innocent!

(4. Potential or actual conflict of interest?)

c) Systematic objections

The legal opinion of the Nuremberg judiciary (in the lower instances) does not lead to a serious risk that uncomfortable defenders can be "eliminated". Nor is it well thought out or convincing.

This already starts with the fact that the degree of probability from when one can speak of a “potential conflict of interest” is not mentioned by the advocates of this doctrine. If one assumes in the example mentioned that the two co-accused are completely innocent, there was never even the slightest risk that their interests would conflict. Of course, a public prosecutor never knows for sure (just as little as a lawyer).

Systematic arguments also speak against the view of the Nuremberg District Court. In the original judgment, no attempt was made to deal with the legal arguments for and against.

Section 356 of the Criminal Code is a so-called abstract endangering offense. This means that the criminal liability is shifted very far "forward" anyway. It is all the more important to clearly outline the criminal offense. This is necessary against the background of the legal professional freedom, which is protected by Art. 12 GG (Basic Law). Incidentally, it is consistent with the highest court rulings that a judge may still appoint a lawyer as a public defender in the event of an impending, but not really existing, conflict of interest.

If one thinks to the end of the consequences of the legal opinion of the Nuremberg judiciary, a judge who does something like this would have to be persecuted for aiding and abetting party treason. Of course, nobody is prepared to draw these conclusions. The criminal liability of judges does not seem to be subject to the same standards that are superficially asserted with regard to the criminal liability of defense lawyers.

(4. Potential or actual conflict of interest?)

d) Reputation of the legal profession

According to the opinion represented here, the reputation of the legal profession is not endangered either. Because it corresponds to the profession of lawyer to be bound by the client's mandate.

A "reasonableness check" does not take place either by the lawyer or by the judiciary. In a free democratic constitutional state, everyone is free to be unreasonable. Apart from that, on closer inspection there are quite reasonable reasons for several accused to be represented by a lawyer or at least to optimally coordinate their defense with one another.

In addition, the clients are adequately protected by §§ 43a Paragraph 4 BRAO and 3 Paragraph 4 BORA. According to this, a lawyer must immediately resign all mandates if a conflict of interest becomes specific. A good criminal defense attorney will refrain from taking on the second mandate in the event of an impending conflict and instead call in a colleague in order to develop an optimal defense strategy.

III. Subjective fact: intent

A violation of the prohibition of representing conflicting interests is only punishable if the respective lawyer acts with intent. Intentional intent should be negated if, for example, a lawyer can no longer remember after many years that he has met a party before.

In contrast, errors in the interpretation of Section 356 of the Criminal Code generally constitute so-called prohibition errors within the meaning of Section 17 of the Criminal Code. As a rule, these do not lead to impunity.

There are no statutory regulations as to how long the protection against conflicts of interest continues for mandates that have long since ended. This legal situation contradicts the requirements of data protection. Basically, according to § 50 BRAO, files of a lawyer are to be kept for a period of six years. According to Art. 17 of the General Data Protection Regulation, there is an obligation to delete after these statutory retention periods have expired. Behind this stands the client's right to "be forgotten".

Against this background, it makes sense to limit the objective facts of § 356 StGB if a previous mandate has ended for more than six years. This is not only dictated by the unity of the legal order. Affected lawyers are to be protected from arbitrary criminal prosecution before a dispute arises as to whether one can and must still remember a closed case after such a long time.

It is to be hoped that some issues will soon be resolved - possibly through an appeal at the Nuremberg Higher Regional Court. Since criminal proceedings that are conducted in the first instance at the local court do not normally reach the Federal Court of Justice, a higher regional court could also make a so-called divergence submission.

This means that a legal issue that would normally have to be decided regionally by a higher regional court is decided uniformly and nationwide by the Federal Court of Justice in Karlsruhe. A prerequisite for such a divergence submission is inconsistent case law of the respective higher courts. Such a situation can easily be determined on closer analysis of the existing case law.

Regardless of this, a constitutional complaint should also be considered.

A kind of “preliminary check” would also be helpful. In tax proceedings, for example, there is the option of obtaining binding information from the tax office in advance of a dispute. This is then binding for the subsequent design. Such a procedure creates legal certainty. This would also be desirable for lawyers who are faced with the question of accepting or rejecting a lucrative mandate.

In some cases it is therefore proposed to use a Clearing procedure at the bar associations the aim of which is to provide binding information in advance about the admissibility of a lawyer’s engagement.