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As the legal profession continues to become more and more global, many attorneys will find themselves involved in dispute resolution matters outside the US. One question that often arises for the international litigator is professional ethics. On the one hand, you are bound by the professional ethics of your home jurisdiction, but on the other there is the code of professional ethics governing the practice of the international jurisdiction. This raises the question of ‘which professional rules do you have to comply with – the rules of the home country or the rules of the country you are practicing in, or even both? Common ethical questions that arise in such ‘double deontology’ situations include:
- What billing practice is permissible?
- Who may represent the client before a court?
- To what extent is the attorney bound to secrecy obligations?
- Which privileges apply?
- What are the limits for ‘hardball litigation’?
In this article we focus on the German attorney ethics landscape, with particular attention to how it corresponds with the ethical rules of the US. According to a 2002 report in International Bar News, the “differences and contradictions in the professional rights and duties of a lawyer from country to country hinge on the basic question of whether the lawyer has such rights because of his status as an instrument in the administration of justice or because he is a mere contractual service provider.” In Germany, according to the Act on Professional Rules for Attorneys, the answer to the above question is clearly that a lawyer is an independent part of the administration of justice and, thus, it is their duty to assist citizens with legal questions.
What does this mean? In short, it means they are subject to the disciplinary orders of their own court, but are under a duty not to interfere with procedural orders of the court, including refraining from filing prayers for relief which are not covered by the subject of the case or are intended only to delay the case.
Rules Pertaining to Foreign Lawyers Practicing in Germany
Any lawyer admitted in a country outside of Germany who practices law in Germany is held to a specific standard of ethics. German law, however, distinguishes between foreign lawyers coming from an EU country, those coming from countries who are a member of the WTO but not the EU, and those coming from any other country. Although German law allows for any lawyer qualified to practice in their home country to practice in Germany, the scope of rights and duties differ depending on which of the above three categories they fall under.
For US lawyers practicing in Germany, they fall under the second category as the US is a member of the WTO. According to the Act of Professional Rules for Attorneys (section 206.1): “foreign lawyers who are qualified to practice law in a WTO member state which is not an EU member state may establish themselves in Germany under their home title and with the permission to practice their home law and public international law by applying for registration with the bar and proving their admission in their home country.” Upon registration, the foreign lawyer is obliged to observe the same rights and duties as their German colleagues.
Thus, the foreign lawyer in Germany is ethically obliged to follow the German code of ethics. But what about their home country’s code of ethics? According to German law, the professional rules of the respective home country remains in force, thus requiring the lawyer to observe both the German professional rules and the rules of their home country.
Potential Conflicts of Professional Conduct Rules
Whenever two sets of rules govern a single act, there are bound to be areas of conflict, and the situation for the foreign litigator subject to both German and US attorney ethics rules is no exception. Take billing agreements, for example. Under US rules, contingency fee agreements between the lawyer and client are expressly permitted. However, in Germany, a contingency fee is a violation of the rules of professional ethics (as the attorney is an independent part of the administration of justice, one can not financially participate in the outcome of the litigation). In light of this conflict, it would be advisable not to enter into a contingency fee agreement with a client when the matter is taking place in Germany.
Another area of potential conflicts is privileges. For example, what happens if a lawyer is summoned to appear as a witness and his testimony has the potential to include confidential information obtained from a professional relationship with a client the question arises whether the lawyer may or even must refrain from appearing as a witness? In the US, the lawyer must abstain from appearing unless the client explicitly directs the lawyer to do otherwise. This is because the US code of ethics includes a privilege that guarantees all communications between the client and attorney to be absolutely protected.
In Germany, the rules are relatively similar, with the attorney’s privilege not to testify as a witness codified in section 383 (1) (6) of the German Code of Civil Procedure (note, the privilege is not codified in US law). However, unlike the US system where the attorney owns the privilege, in Germany the client has the discretion.
As a final example of potential conflicts of codes of ethics, we look at the issue of so called ‘hardball litigation’ tactics (i.e., when a lawyer acts in an unsportsmanlike manner staying within the limits of legal ability but exhausting legal borders and ambiguous branches of law). According to US rules of ethics, there are various limitations for trial conduct, generally stating that a lawyer “shall not disregard or advise the client to disregard a standing rule of court” and must refrain from “engaging in undignified or discourteous conduct which is degrading to a tribunal.”
The German code of ethics, on the other hand, explicitly states that objectiveness belongs to the professional obligations of the lawyer and various prohibited practices, such as the “conscious distribution of false issues or unreasonable affronts” (43a (3) Act on Professional Rules for Attorneys).
More so, personal insults are only in the scope of objectiveness if they are related to the issue of the trial and contribute to the finding of justice or to the defense of the lawyer’s client. In other words, in Germany (unlike the US), a lawyer is allowed to appreciate his obligation to attend to his client’s interests in the way he deems appropriate. Therefore, in his “fight for justice” he is allowed to use strong and vivid expressions, to argue “ad personam” to criticize for example the independence of a judge or the competence of an expert. It is not relevant if the lawyer’s behavior is undue or if he was able to express his criticism in a different way. As long as the lawyer’s behavior does not contribute false issues or offends other parties it has to be accepted.
Contact legal translation company All Language Alliance, Inc. to obtain English to German legal translation, German to English legal translation or German e-Discovery translation, and to hire a German interpreter for a deposition or an arbitration.