In two circumstances (2012 and 2016), a lawyer acquired funds from a authorized safety insurance coverage firm, however later didn’t move on the fee reimbursements paid by the opposing celebration or the court docket to the insurance coverage firm, however as an alternative offset them towards his price declare from his shopper. He was due to this fact accused of violating his skilled obligation to right away ahead different folks’s funds to the particular person licensed to obtain them (§ 43a Abs. 7 p. 2 BRAO). However, the AnwG denied this and acquitted the lawyer.
The enchantment introduced towards this by the Public Prosecutor General’s Office was unsuccessful on the AGH Hamburg (judgment of November eighth, 2023 – AGH I EVY 4/2023). Unlike the AnwG, nonetheless, the AGH noticed the lawyer’s obligation to ahead § 43 Abs. 7 P. 2 BRAO objectively violated. Because this not solely refers to shopper cash, but additionally contains third-party cash owed to the authorized safety insurance coverage. The AGH refers back to the wording and the aim of the regulation, “to guard the final belief within the correctness and integrity of the authorized occupation in all monetary issues and thus on the identical time the perform of the authorized occupation within the administration of justice”.
The authorized state of affairs was unclear on the time
The authorized safety insurance coverage was additionally entitled to the cash from the reimbursement of prices after the shopper’s declare below §§ 675, 667 BGB in line with § 86 VVG was transferred to them. The shopper can not declare a quota privilege. Since the lawyer knew in regards to the switch of the declare to the insurance coverage (§ 407 Abs. 1 BGB), his offsetting was not efficient.
According to the AGH, the lawyer made an unavoidable prohibition error. At the time of offsetting, it was nonetheless unclear whether or not a lawyer may hold reimbursements from the court docket and the opposing celebration and offset them towards his personal price claims towards his shopper. Clarifying BGH case legislation solely got here later.
AGH Hamburg, judgment of November eighth, 2023 – I EVY 4/2023
Editorial group beck-aktuell, hs, May 17, 2024.
Related Links
From the beck-online database
BGH, reimbursement of unused court docket prices, NJW 2021, 2589
BGH, declare to compensation of an unused price advance, NJW 2022, 1020
BGH, resolution on prices within the case of a constant declaration of settlement after the declare has been paid off, BeckRS 2021, 17178
BGH, forwarding of third-party funds to purchasers as an alternative of to authorized safety insurance coverage, NJW 2019, 3003