I. Introduction
The Federal Constitutional Court is currently dealing with the matter of 1 BvR 3069/06, which concerns the question of whether a criminal defense lawyer is entitled to a right to remain silent in court. More specifically, the question is whether a lawyer who is employed as a witness is entitled to a right to remain silent in a legal fee case in civil proceedings. The decision is eagerly awaited, as there is concern that the confidentiality obligation of a defense attorney would be weakened if the constitutional complaint is not accepted or dismissed. This would have unforeseeable consequences for the position of trust of a lawyer. In fact, the duty of confidentiality and the prohibition of representing conflicting interests are the last profession-specific duties that remain.The later complainant before the Federal Constitutional Court had taken on the criminal defense of the later defendant in two cases in 2004 as an employed lawyer. The power of attorney was only in the name of the employed lawyer and later complainant. After an unsuccessful pre-trial warning, the lawyer's employer had sued for the lawyer's fee against the former client of the employee, who had since left the law firm, before the district court. The amount of the lawyer's fees was EUR 889.71. The lawyer's fee, which was probably incurred by the mandated employed lawyer, had not been assigned to the suing lawyer employer. The employee was later summoned as a witness by the district court, as the defendant disputed the mandate in part, and also the provision of services by the complainant. The defendant, who had since changed, also claimed that the service had been poorly performed. At the time, the complainant had already left the law firm where he had been employed.
II. Civil procedural basis of the right to confidentiality
In civil law, the right or obligation of a Lawyer and his employees to maintain confidentiality is regulated in § 383 I No. 6 ZPO. Accordingly, persons to whom facts are entrusted by virtue of their office, profession or occupation, the confidentiality of which is required by their nature or by law, may refuse to testify with regard to the facts to which the obligation of confidentiality relates. Lawyers may refuse to testify in court with regard to facts that they have learned as a result of their position of trust. Section 385 II ZPO states that the confidentiality obligation is lifted if the protected party has released the lawyer from his confidentiality obligation. In the latter case, there is no longer any potential for conflict between the fundamental duty to testify and the risk of criminal liability. If the party's decision on the question of the release is not disclosed to him, he must assume that his duty of confidentiality remains in force.
The defendant stated – in response to a written request from the witness – that he was not releasing him from his duty of confidentiality. Nevertheless, the district court summoned the defendant's former criminal defense attorney:
"On the scope and nature of the work for the defendant in the years 2004, 2005, insofar as the activities for the two invoices dated January 11, 2005 and January 12, 2005(Ref. 3399-04 MH/PI and 3542-04 FR/PI).
Please bring any written documents you may have with you."
The employed lawyer then addressed the following written submission to the district court:
"To the District Court
In the legal dispute A. v. B,
here: Witness examination of Lawyer C,
the undersigned formally declares his refusal to testify within the meaning of §§ 386 I, 495 ZPO. As the defendant's legal representative at the time, the undersigned has a right to refuse to testify in accordance with § 383 I No. 6 ZPO. The defendant has not released the signatory from his duty of confidentiality (Section 385 II ZPO). The subject of the evidence extends to questions that have been entrusted to the signatory within the scope of the mandate. The above is legally attested in accordance with Section 386 II, 294 ZPO. Since the witness is exercising his right to remain silent, it is already being communicated before the date that he will not appear for this reason at the main hearing on September 5, 2006, see § 386 III ZPO.
Lawyer C Signature
In contrast to the parallel provisions of criminal law, a witness bound to secrecy does not have to appear in court at all if he has a right to remain silent and invokes it. In this case, the witness entitled to remain silent can submit a written declaration or a statement for the records of the court dealing with the matter, even before the date of the hearing, stating that he is invoking his right to refuse to give evidence in order to avoid appearing in person, § 386 ZPO. Furthermore, according to § 386 I ZPO, the facts leading to his right to remain silent, within the meaning of § 294 ZPO, must be substantiated. In the cases of § 383 I No. 6 ZPO, the assurance given with reference to the oath of office taken by the witness is sufficient to establish credibility: "Attorney's Assurance". If the attorney authorized to remain silent has made this declaration in the correct form and has substantiated it, Section 386 III ZPO states that the witness is released from the obligation to appear in person on the basis of his refusal. This of course assumes that the right to refuse encompasses the entire question of evidence. Often the summons already contains the question of evidence, so that the witness can be clear about the content of his testimony and the extent to which it would violate his duty of confidentiality. If a witness is also questioned about matters that are not covered by his legal right to maintain confidentiality, there is a risk that, despite his declaration of refusal to testify, he may be fined for failing to appear and, if the fine cannot be collected, he may be imprisoned, cf. Section 380 ZPO.
The court dealing with the matter may not impose any disciplinary measures in accordance with § 380 StPO in the event of a formally proper declaration of refusal to testify or a declaration that the witness will not appear at the hearing. The right to remain absent as a witness does not depend on whether the refusal was justified. If one of the parties to the dispute objects to the Lawyer's right to refuse to give evidence, a preliminary dispute shall be held in accordance with § 387 ZPO. The trial court decides on the lawfulness of the refusal of the witness to appear in court after hearing the parties. The witness is not obliged to be legally represented. However, he has a right to do so, although this is less relevant in the case of witnesses who are lawyers. If the trial court decides against the lawfulness of the refusal to give evidence, the witness has the right of immediate appeal against a decision to this effect by the trial court, which is issued by interlocutory judgment. The latter must be submitted to the judex a quo in accordance with Section 569 (1) ZPO within a strict time limit of two weeks. The costs in the amount of EUR 50.00 shall be borne by the unsuccessful party.
III. Civil case law on the right of lawyers to confidentiality
Since the district court remained of the opinion that the witness had to appear despite the corresponding legal arguments of the complainant, and then also stated this by means of an interim judgment, the witness lodged an immediate appeal against this decision with the district court, which, however, followed the legal opinion of the district court.
The witness then lodged a constitutional complaint in Karlsruhe. The district court suspended the legal proceedings so as not to present the witness with a fait accompli.
The question of whether a lawyer, as a witness or a legally equivalent professional assistant, is still entitled to the right to remain silent when they have been summoned as witnesses in legal proceedings concerning lawyers' fees is not a new one and has already been the subject of isolated rulings by the highest court. For fee-based lawsuits, it is recognized that an attorney is not prevented from presenting the necessary evidence to fulfill his burden of disclosure, even if this means violating the duty of confidentiality. Since the law provides for such actions (Section 11 of the German Lawyers' Remuneration Act (Rechtsanwaltsvergütungsgesetz; RVG)), the substantiation required under procedural law is lawful. This is now also expressly stated in Section 2 (3) of the German Federal Rules of Professional Practice for Lawyers (Bundesrechtsanwaltsordnung; BORA).[5]
According to case law, the exceptional case of the attorney's duty of confidentiality being lifted in the case of the attorney's own fee claims can be applied to cases in which the fee claim can only be proven by witness testimony – by employed attorneys or office staff. Here, too, the defendant has caused the conflict of interest himself by his refusal to pay and is not in need of protection. Therefore, the witness may also testify without being liable to prosecution (Section 203 (1) no. 3, (3) StGB) or violating professional duties. It is still understandable that the witness should be allowed to testify in this situation. The only question is what happens if the witness has decided not to testify. This case was the subject ofthe decision of the Higher Regional Court of Stuttgart[6].A salaried lawyer had refused to testify in a fee dispute. The plaintiffs' attorneys did not consider the right to refuse testimony to apply and requested an interim decision on this question pursuant to § 387 (1) ZPO. The Higher Regional Court of Stuttgart came to the conclusion that the witness was obliged to give her testimony and rejected the invocation of her right to refuse testimony. The right to refuse testimony is fundamentally transformed into the duty to testify. A weighing of the conflicting interests of the importance of the right to remain silent against the claimed attorney fees could also lead to different results in individual cases.
IV. Content of the constitutional complaint
In his constitutional complaint, the complainant had argued that the challenged court decisions violated his freedom of occupation as a witness, lawyer and defense counsel under Article 12.1 of the Basic Law. Lawyer and defense attorney's right to refuse to testify on matters concerning facts confided to him and the extent of the criminal defense was protected by the exercise of the profession under Article 12, paragraph 1 of the German Constitution.
The purpose of the provisions of §§ 383 para. 1 no. 6 ZPO and 53 StPO is to protect the relationship of trust between the professional and those who seek their help and expertise.
The challenged rulings of the courts would have the effect of converting the confidentiality obligation of the witness and complainant into a procedural obligation to testify. According to the clear wording of § 385 (2) ZPO, the person entrusted with the secret only has a duty to testify if he or she is released from the duty of confidentiality. This had been expressly rejected here by the defendant. Furthermore, it is the legislative decision that lawyers and criminal defense attorneys cannot be forced to testify. There is no serious harm to the general public that could justify a disclosure of the secret in the context of a balancing of interests in an individual case. The freedom of the complainant to exercise his profession as a lawyer outweighed the right of others to collect the lawyer's fees, especially since the fees in question amounted to only approximately EUR 900.
The duty of confidentiality is an indispensable condition for practising the legal profession and thus part of the protection of Article 12 (1) sentence 1 of the German Basic Law(GG).[7] This duty of confidentiality applies to a particular extent to criminal defence. The Federal Constitutional Court has stated: "Only if the accused can count on the confidentiality of his defense counsel is the prerequisite created for the development of a relationship of trust, without which a criminal defense cannot be effective." Indeed, confidentiality of the content of conversations is of the highest priority for a criminal defense attorney. If a defense attorney were forced to reveal this knowledge in a public trial, it would have devastating consequences for his future professional activity.
Furthermore, the mere risk of committing a criminally relevant act (Section 203 of the German Criminal Code) and of being punished by the court of law justifies the assumption of an existential violation of the freedom to practice one's profession. A violation of fundamental rights to that effect, which was ordered by the civil courts, could only be thwarted by the Federal Constitutional Court. After the complainant's testimony, the case was settled. The professional duty of confidentiality for Lawyers is described in § 43 a II S. 2 BRAO and refers to everything that the Lawyer has become aware of "in the exercise of his profession". The criminal law definition of a secret in § 203 of the German Penal Code (StGB) is narrower and refers to facts relating to the person of the person concerned and to their past or present circumstances. 8] According to the criminal law definition, the secret must have been confided to the Lawyer or must have otherwise become known to him. Entrusting is understood to mean initiating into a secret under circumstances in which a duty of confidentiality arises; otherwise becoming known encompasses any other acquisition of knowledge by virtue of the practice of the profession. The right of the attorney to refuse testimony begins with the knowledge of the fact worthy of protection and does not require an effective mandate relationship. Nor does it end with the completion of the assignment or the termination of the mandate.[9] According to the parallel provision of § 203 IV StGB, it also continues after the death of the person whose trust in the professional is protected.The right to refuse testimony does not even expire when the witness gives up their profession. This is the legal concept of § 54 IV StPO.
V. Legal assessment of the prospects of success
1. Scope of protection
Article 12 of the German Basic Law grants a subjective right and guarantees freedom of occupation, here in the form of the institution of the legal profession as a uniform fundamental right. The constitutional provision also includes the protection of the confidential relationship between a lawyer and his clients. Without this relationship of trust, practicing law would simply not be possible. Since, on the other hand, the right to confidentiality is generally recognized as the indispensable basis of this position of trust, an encroachment on this legal position also means an encroachment on the practice of the profession.
This applies in particular if the obligation to testify in a main hearing, i.e. in public, is to be maintained. The Federal Constitutional Court has already recognized this: it even mentioned the duty of confidentiality first and foremost as an example of these basic duties, the continued existence of which is indispensable for maintaining a functional administration of justice.
The constitutional significance of this question is apparent from the rulings of the Federal Constitutional Court, in which it has found that it is not in violation of Article 3.1 of the Basic Law and Article 2 of the Basic Law if the Code of Criminal Procedure does not grant social workers and veterinarians a right to refuse to give evidence, but on the other hand has emphasized the confidentiality interests of clients and patients as being worthy of protection.
2nd encroachment
Compelling the complainant to testify constitutes a massive infringement of both the right to silence and the duty of confidentiality under section 383 subsection 1 no. 6 of the Code of Civil Procedure.
The violation of the comprehensive duty of confidentiality can be punished in accordance with § 203 I No. 3 StGB with a prison sentence of up to one year or a fine. In the event of a violation, the injured party may be liable to prosecution under § 823 II BGB. § 203 StGB is considered a protective law in the sense of this provision. 14] In addition, there may be a claim for damages against the lawyer for breach of secondary obligations. Ultimately, there is also the threat of professional repercussions. If the lawyer violates his duty of confidentiality, which according to § 43 a II BRAO is one of the "basic duties of a lawyer", the Lawyers' Disciplinary Court may impose a penalty in the form of a warning or even exclusion from the legal profession.
The former client and defendant in the civil dispute did not release the complainant from his duty of confidentiality. It is now recognized, by analogy with medical confidentiality, that the interest in maintaining confidentiality is not only an individual interest, but also a community interest.
The case law on the rescission of the attorney-client confidentiality obligation in fee-based lawsuits cannot be applied to witnesses subject to the confidentiality obligation. Only the party liable for the fees has, by refusing to pay, deprived himself of his rights, not the attorney as a witness. Even in the context of § 385 ZPO, an exemption from the duty of confidentiality by all those who have a right to confidentiality is necessary. It would be incomprehensible for this to be different in the parallel issue of the Lawyer's right to confidentiality as a witness. The complainant has obviously not deprived himself of his rights. In the course of his testimony before the civil court, the complainant would probably also have no choice but to uncover another criminal offense committed by the defendant in the civil dispute, especially since the content of the complainant's activities is also relevant according to the decision of the Weiden District Court to take evidence.
3. Justification under constitutional law?
An infringement of a lawyer's professional confidentiality and duty of confidentiality may be justified in individual cases. If the evidence to be clarified is of direct or indirect financial benefit to the Lawyer, there is a legitimate self-interest: In this case, a right to disclose can arise despite the existence of an obligation of confidentiality from the basic principles of justifiable emergency (Section 34 of the German Criminal Code) or by taking the aspect of the protection of legitimate interests (Section 193 of the German Criminal Code). If a lawyer acting as a witness has a vested interest in the outcome of the case,[17] for example, if the suing law firm is claiming a share of the profits of the lawyer employed there, it has always been recognized that the witness is not prevented from doing so in order to fulfill theThat the duty of confidentiality in this case does not only apply to the suing Lawyer, but also to a partner or employee of the firm, needs no further mention. Despite his affiliation with the administration of justice, there is no general rule of experience for an increased credibility of the lawyer as a witness.
Furthermore, the duty of confidentiality must, if necessary, give way in the fight against organized crime and the associated protection of the life, health and property of citizens. Insofar as this serves overriding legal interests, the attorney-client confidentiality must take a back seat in individual cases. In these cases, the disclosure of secrets would be lawful and not subject to punishment.
However, it must always be kept in mind that a breach of confidentiality goes hand in hand with a breach of trust that is dangerous for the reputation of the entire profession. For these reasons, particularly strict requirements must be applied when weighing up the legal interests when considering the necessity of waiving the right to confidentiality. [18] The legal community as a whole must therefore attach importance to the privacy being accepted and respected. In any case, a balancing of interests would lead to the right to silence of the complainant prevailing:
The client's interest in the attorney's duty of confidentiality only takes a back seat if there is no less severe, equally suitable means of enforcing the attorney's claim for remuneration. The attorney-employer was not dependent on the complainant's testimony to assert the fee claim: In the present case, it must be taken into account that the defendant in the civil action specifically disputed having retained the complainant. However, the mandate would have been apparent from the criminal power of attorney issued to the complainant and signed by the defendant, which was among the civil files.
For the accrual of criminal fees according to § 2, 14 RVG 2004, no. 4101/4102 no. 2 or 3/4103/4105 VV-RVG is also relevant as to whether the complainant was present at the detention review hearing. The defendant had disputed the latter. This would also have been evident from the minutes of the custody examination. The same could have been confirmed by hearing the then judge of the district court. Participation in the police interrogation of the complainant in the prison would have been revealed by the interrogation of the responsible police officer who conducted the interrogation. In addition, the defendant in the civil proceedings had criticized the complainant's poor performance. Allegedly, the complainant was late for the detention review appointment. The competent detention judge could have been heard on this point as well.
Even if the balance tips against the complainant, the right of a lawyer to exercise the right to remain silent can never be overridden in a fee lawsuit. A duty to testify can never be the result of a legal consideration of interests.[19] The latter can therefore only lead to the fact that a witness who voluntarily wants to testify is not punishable according to § 203 I No. 3 StGB. The voluntary decision of the person bound by professional confidentiality must never be at issue in proceedings concerning the payment of fees.
The only person who can claim a justification for breaching confidentiality in legal fee disputes is the person who is legally enforcing their claim for remuneration. The complainant who was actually mandated here is not in such an emergency situation that could justify a breach of the duty of confidentiality.
Moreover, the behavior of the complainant was not abusive, contrary to the legal opinion of the attorney-employer, because he offered to the district court after receiving the summons to stand as a witness before a judge at the local district court for a statement in the case(the latter was rejected by the civil court). According to established case law and legal literature, a witness entitled to refuse to give evidence in civil and criminal law may disclose a secret in whole or in part and partially reveal it. 20] He does not need to explain the reasons for refusing to give evidence. Whether and when the witness invokes his right to refuse to testify is entirely his decision. According to the rulings of the highest courts, the judge is not even allowed to ask him about his motives.According to the prevailing case law and the commentaries on criminal and civil law, the witness who is unwilling to testify may be informed of the authority to allow the use of earlier statements, although the court must refrain from exerting any influence on the freedom of the witness to make up his mind.This also suggests that the witness should be left to decide in the respective procedural situation whether he wants to testify or not. Due to the tension between the witness's duty to testify and their duty of confidentiality, it is accepted by the legislator that the witness is in an internal conflict situation and that a later invocation of the right to refuse testimony does not preclude the witness from declaring at an earlier point in time that they would be willing to testify. For this reason, in the parallel conflict situation of a witness entitled to refuse testimony in criminal proceedings, it is also recognized that the witness must be informed again before each new hearing, even if he has already waived his right to refuse testimony in his previous hearing.[23] The legislatureitself assumed that the decision of the witness entitled to refuse to testify to want to testify or not must and may be made anew in each case.
The obligation of the witness to testify cannot be justified by the case law of the Higher Regional Court of Stuttgart. However, regardless of the question of its correctness, this case law could not be applied to the present case. In contrast to the above-mentioned decision of the Higher Regional Court of Stuttgart on civil law, a client relationship did not arise in the present case between the plaintiff and the defendant, but between the witness and the defendant. In contrast to civil law, a client relationship does not arise with the law firm, but with the Lawyer (ad personam). Furthermore, the civil courts did not carry out any balancing of interests at all. The challenged decisions only took into account the plaintiff's interest in asserting his fee claim and the defendant's interest in maintaining confidentiality. The complainant's own interest as a lawyer, on the other hand, was not taken into account in the balancing of interests. Apparently, the civil courts assumed that employed lawyers were generally obliged to testify as witnesses in fee proceedings regarding details of the client-attorney relationship. This represented a failure to exercise discretion.
Furthermore, the case law of the Higher Regional Court of Stuttgart in MDR 99, p. 192 cannot be applied to the present case, since even this decision – with reference to Henssler/Prütting-Eylmann, BRAO, § 43 a margin no. 64 – excludes from the duty to testify cases in which, as here, the enforcement of minimal fee claims is at issue, but secrets of high-level importance have to be betrayed. In the present case, given a fee claim of less than EUR 900.00, the interest in confidentiality would prevail, especially since criminally relevant matters would have to be disclosed by the complainant. A higher-ranking significance of secrets than entrusted criminal facts is inconceivable. Accordingly, even the Higher Regional Court of Stuttgart would come to a different conclusion for the present case of fee claims subject to criminal law.
In this context, it should be mentioned that the attorney generally has his own protectable interest in complying with his confidentiality obligation.[25] It would not be correct to claim that the confidentiality obligation only serves the interests of the client. According to the case law of the Federal Court of Justice, the trusted third party should also be released from the dilemma of a conflict of duties - maintaining trust and taking into account the general interest in the investigation of criminal offenses.[26] This is something that the legislator has accepted, just as it accepts, for example, in criminal proceedings, that the most serious crimes remain unsolved because the lawyer, who is not released from his duty of confidentiality, refuses to testify. This regulation may initially seem strange, but in reality it makes good sense. The attorney-client privilege is always also about the general trust on which the legal profession depends, and that would suffer if it were not for the certainty that the attorney cannot be forced to disclose the secrets entrusted to him, unless the person concerned in the individual case would himself agree to a disclosure. In the present case, the complainant, as a criminal defense attorney, has an even greater interest in maintaining his duty of confidentiality, especially since the defendant has accused him of providing an inadequate service in the context of his mandate. In this regard, he is entitled to a further right to refuse to give evidence on substantive grounds pursuant to section 384 no. 1 ZPO.
The attorney employer's concern that the testimony was indispensable for his prospects of success would be unfounded: Regardless of the fact that other evidence was available here and the testimony of the witness was therefore not absolutely necessary,it would be incorrect for the employer's legal proceedings to be lost simply by the appellant invoking his right to remain silent. The circumstances of the defendant's refusal to release the attorney-client privilege are to be freely assessed by the courts having jurisdiction to decide. In general, the civil judge will have to draw the conclusion from this circumstance, based on general experience, that the testimony would have been unfavorable for the party whose trust in the Lawyer is being protected, and will rule in favor of the facts to be clarified to the detriment of the party. The former lawyer-employer is not without rights in this regard. It is in his power to document the activity of his employed lawyer in the file in such a way that he can present it in a substantiated and convincing manner. If the court refuses to release the former client from the confidentiality obligation, it will draw the appropriate conclusions from the idea of § 444 ZPO, and the substantiated submission of the attorney as plaintiff would then be deemed to have been admitted.[28] This generally applicable principle is only invalidated if the party can have an interest in the particular confidentiality of this fact that goes beyond the specific legal dispute.[29] This is the reason why the defendant did not release the complainant from the right to refuse to give evidence after the alleged conclusion of the criminal proceedings, recognisably because he feared that he would otherwise lose the fee proceedings.
In the context of a practical concordance, it is also not possible to construct a continuing duty of loyalty under labor law between the complainant and his former law firm. In view of the importance of legal confidentiality for the integrity of the profession, the complainant has decided not to make use of any right to testify that may be justified under § 34 of the German Criminal Code (StGB). The courts and the suing former employer lawyer must accept this. A derived from the employment contract after-effective obligation in the former employer's fee processes, always to claim § 34 StGB, is not deducible, especially since the criminal risk of consideration alone meets the complainant.
Furthermore, the independence of the lawyer as an organ of the administration of justice generally takes precedence over any right of the employer to issue instructions.[30]
VI. Opinion of bar associations
In May 2007, the Constitutional Law Committee of the German Federal Bar Association submitted a statement regarding the constitutional complaint at hand and was divided in its opinion regarding the merits of the constitutional complaint (4:4 votes). The Presidency of the German Federal Bar Association decided to leave this divided opinion unchanged. The members who were optimistic about the prospects of success of the constitutional complaint emphasized that the challenged civil court decisions had not made a balancing decision and erroneously assumed that employed Lawyers are – even after termination of the employment relationship – generally obliged to disclose the internal matters of the client relationship. The four members voting against the prospects of success argued that the complainant would not violate any of the client's interests worthy of protection if he were obliged to testify; rather, the interests of the Lawyer suing for his fees take precedence. It should be noted, however, that the Constitutional Law Committee was not aware that the present case involves a manifestly unfounded fee claim, especially since only the complainant was retained as a criminal defense attorney, not the plaintiff in the legal dispute. Furthermore, the BRAK had apparently assumed that the claim had been assigned.
In its statement of April 2007, the German Bar Association [Deutscher Anwaltsverein] [31] considered the complainant's constitutional complaint to be well-founded, since the members of the committee had recognized that a client-attorney relationship had only been established with the complainant, and not with the complainant's former employer. It would not have been necessary to hear the complainant, as the action would have been ready for dismissal even in the absence of an assignment of the complainant's fee to his former lawyer. The suing attorney, as the employer of the complainant, could not be entitled to any claims of his own.
The problem of the duty to testify of former employed lawyers was also discussed at the 5th Conference of Legal Advisors in Munich in March 2007. Representatives from almost all bar associations in Germany took part. During the conference, the results of the conference members on the scope of the duty of confidentiality were recorded under 5.[32] It says here:
"A lawyer may not give evidence as a witness, even after having assigned his fee claim to another lawyer, without being released from the duty of confidentiality by his former client. Insofar as a lawyer has not been released by his client from the duty of confidentiality, he cannot be compelled by judicial measures, e.g. to give testimony."
A connection to the present constitutional complaint cannot be overlooked. It is true that in the present case no assignment of a fee claim was made to the suing employer. The complainant would certainly have the right to remain silent according to the conference of representatives of the bar associations.
In a statement dated June 21, 2007, the Saarland Bar Association also endorsed the complainant's argumentation in a parallel case. This letter states:
The pending constitutional complaint has also been discussed at the 5th Conference of the Federal Bar Association's Professional Law Officers. The predominant view of the professional law officers – including those of our chamber – was that a lawyer who has not been released from the duty of confidentiality by his client cannot be forced to give testimony by judicial action. It follows, of course, that a statement made despite not being released from the duty of confidentiality would constitute a breach of professional ethics."
The latter view shows, incidentally, that in such cases the bar associations do not shy away from sanctioning possible violations of the duty of confidentiality under professional law. This illustrates all the more the "dilemma" in which the witness finds himself in this situation. In summary, the prospects of success for the constitutional complaint are assessed very confidently in the various committees of the bar associations.
VII. Conclusion
Pursuant to § 93 a BVerfGG, the constitutional complaint should be accepted for decision. A decision by the Federal Constitutional Court on the question relevant here of the existence of an obligation of confidentiality or a right to confidentiality is eagerly awaited in the professional law bodies of the legal profession. The present constitutional complaint raises a constitutional question that goes beyond the individual case and is relevant to the decision. As described in the previous section, the issue at hand will also be relevant in other parallel cases (see the statement by the Saarland Bar Association). The matter in dispute has also not yet been clarified by constitutional court rulings. It is apparent from the comments of the German Federal Bar and the German Bar Association that the question at hand urgently needs to be clarified. Otherwise, there would be considerable uncertainty among the young, predominantly salaried legal profession. The constitutional complaint at hand is also the subject of lively discussion in legal literature. 33] The constitutional complaint is also to be accepted for decision with regard to § 93 a II b BVerfGE, since the asserted violation of Article 12 of the Basic Law is of particular weight and affects the complainant in an existential way. The complainant would suffer a particularly serious disadvantage due to the criminal liability under § 203 of the German Criminal Code (StGB) and the threat of proceedings before the Lawyers' Disciplinary Tribunals. The Federal Constitutional Court has already ruled that the violation of the obligation of confidentiality is an indispensable condition for the practice of the legal profession.
The constitutional complaint should also be successful on the merits. Since the attorney-client privilege is one of the main pillars of the legal profession, it is protected by the fundamental right of Article 12 of the Basic Law. The civil courts have encroached on this protection. This encroachment is not justified under constitutional law.
Update: Unfortunately, the constitutional complaint was not accepted for decision on March 17, 2008 because "the violation of fundamental rights is not particularly significant." Nevertheless, the complainant was not heard by the district court because the parties had previously reached a settlement.
[1] The author is a lawyer specializing in criminal law at our firm and is involved in the proceedings. [2] Kleine-Cosack, F.A. Z ., July 14, 2007, p. 12.
[2] Kleine-Cosack, F.A.Z., July 14, 2007, p. 12.
[3] Lenckner, NJW 1964, p. 1190.
[4] Order of the Weiden District Court dated November 15, 2006 – 2 T 130/06, MDR 2007, pp. 484 et seq.
[5] The duty of confidentiality does not apply if this professional code of conduct or other legal provisions allow exceptions or if the enforcement of or defense against claims arising from the client relationship or the defense of the Lawyer in his own cause require disclosure.
[6] MDR 1999, p. 192.
[7] BVerfGE 110, 226, 252.
[8] Tröndle/Fischer, § 203 StGB Rn 4, 54th ed., 2007.
[9] Düsseldorf Regional Court NJW 1958, p. 1152; Augsburg Regional Court NJW 1964, 1186.
[10] Solbach, DRiZ 1978, p. 205.
[11] Cf. OLG NJW 1985, p. 2038 (2039); Henssler, Das anwaltliche Berufsgeheimnis, NJW 1994, pp. 1817; 1819.
[12] BVerfGE 76, p. 171 (190) = NJW 1988, p. 191, 193.
[13] BVerfGE 38, p. 313 (323 = NJW 1975, p. 588).
[14] Henssler, NJW 1994, pp. 1817, 1818.
[15] Len ckner, Ärztliches Berufsgeheimnis, p. 160 et seq.; Haffke, GA 1973, p. 63, 67.
[16] Reichold, in Thomas/Putzo, ZPO 25th edition, 2003, 385 marginal no. 5; Baumbach/Lauterbach/Albers/Hartmann, ZPO, Section 385 Rn 8, 65th edition, 2007.
[17] BGH NJW 1952, p. 151; MDR 1956, 625 (626).
[18] Rüpke, NJW 2002, pp. 2835, 2836.
[19] Lenckner, NJW 1965, pp. 321 (327).
[20] RG 48, 269, 272; Meyer-Goßner, Code of Civil Procedure, Section 53 Code of Civil Procedure, margin no. 41, 50th ed., 2007.
[21] Meyer-Goßner, Code of Criminal Procedure, Section 52, margin no. 16.
[22] Senge, in Karlsruher Kommentar, § 52 StPO Rdn. 43 a, 5th ed., 2003.
[23] BGH St 13, 394, 399 = NJW 1960, p. 584; RGSt 2, 192, 193.
[24] MDR 1999, p. 192, similar: Brandenburg Higher Regional Court, OLG-NL 2002, p. 114 f.; RGZ 53, 315, 316.
[25] Lenckner, NJW 1964, p. 1190.
[26] BGHSt 9, 59, 61 = NJW 1956, 599.
[27] Cf. on this: OLG Celle, NJW 1953, p. 426.
[28] Sch ons, Anwaltsblatt 2007, p. 443 et seq.
[29] Huber, in Musielak, ZPO § 383 Rdn. 10, 4th ed., 2005.
[30] Eylmann in Henssler/Prütting, Berufsrechtsanwaltsordnung, 2nd edition, Section 43 a, margin no. 18; in favor of the complainant's right to remain silent, see also Schons, Anwaltsblatt 2007, p. 443.
[31]http://www.anwaltverein.de/downloads/stellungnahmen/2007-21.pdf
[32] BRAK-Mitteilung 3/2007, page 103.
[33] On this, see Schons, Anwaltsblatt 2007, pp. 441, 443 et seq.
[34] BVerfGE 110, p. 226, 252.
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