Can lawyers represent a family?
Conflict of interest
There is no limit to the number of possible case constellations in which there may be a “critical proximity” of different mandates and activities. When it comes to the admissibility of action, details are often decisive. A good orientation aid is provided by z. B. the contributions of Offermann-Burckart, conflict of interests - every case is different - 35 individual cases from practice on a core obligation of the legal profession, AnwBl. 2009, p. 729 ff .; and conflict of interests - It remains the same: Every case is different (50 individual cases from practice on a core obligation of the legal profession), AnwBl. 2011, p. 809 ff.
The following examples can therefore only sharpen the view of the problem areas; they are neither conclusive nor can they be generalized without further ado.
4.1 Family law
Cases of family law are particularly dangerous when it comes to conflict situations within the meaning of Section 3 BORA. This is also due to the long periods of time over which the mandate exists. If, for example, the joint child comes of age, the material legal situation with regard to maintenance changes and conflict situations can arise years after the divorce and after the first settlement of the maintenance issues.
4.1.1 Divorce by mutual consent
There is no such thing as the so-called “consensual divorce” that is handled by a single lawyer. Since a lawyer is only partially required in divorce proceedings, it is often possible to divorce even if only one party is represented by a lawyer. The lawyer is then only responsible for the interests of his client, he cannot advise the other party "en passant".
RA A and RA B work together in shared offices. The couple M and F would like to get a divorce by mutual agreement. RA A should represent M and RA B should represent F. A simultaneous representation of the spouses in the divorce proceedings by lawyers from the same office community is not permitted according to Section 3 (2) sentence 1 BORA, as the interests of the spouses are objectively conflicting. The subjective evaluation standard (amicable divorce) cannot be used as a basis.
4.1.2 Parent and child with maintenance
In the case of adult children, there are regularly conflicting interests in the representation of one parent and the child against the other parent in the dispute over the amount of maintenance, since child maintenance depends on the performance of both parents, which in turn depends on their own maintenance claims. The BGH, AnwZ (Brfg) 35/11, allows it to be sufficient in individual cases that a possible conflict of interests between the parties represented has already been resolved in advance (in this case the parent complaining had submitted that until then it was solely for the maintenance of the son and be prepared to continue doing this regardless of the outcome of the legal dispute), but not without emphasizing that this applies to gain compensation and child support, which might be seen differently in the case of separation maintenance.
4.1.3 Advice in advance
Years ago, the F contacted RA A. She reports that the couple grew apart. She would like advice on how a divorce works out and what maintenance claims she is entitled to in the event of separation and divorce. After the consultation, F does not answer again. Now her husband M approaches RA A and would like to entrust him with the implementation of the divorce proceedings. Since both mandates are based on the same circumstances (the marital relationships) and the interests of F and M contradict each other, RA A is not allowed to accept M's mandate in matters of divorce and subsequent matters.
Spouses M and F would like to conduct a mediation process to resolve family law disputes. To do this, contact RA A. In the course of an initial conversation with the couple, maintenance calculations were made. The existence of a shared property was also discussed. Even before the conditions for carrying out a mediation process can be clarified, F informs that she is no longer interested in mediation. Now RA A represents the M out of court. Legal mediators are also bound by legal professional obligations in accordance with Section 18 BORA. Legal activity as a mediator is permitted if it is limited from the outset to an attempt at an amicable settlement with the consent of both spouses. If the mediation fails, the legal mediator is not allowed to represent one of the spouses.
4.1.5 Divorce Agreement
Similar to mediation, the lawyer is not barred from drafting a divorce agreement on behalf of both spouses, collecting the material for this and pointing out possible conflicts and possible solutions. For the further divorce proceedings, however, it is "used up" for both spouses.
4.2 Traffic law
Problems can arise, for example, in the defense of the person who caused the accident in criminal proceedings and the victim of the accident in compensation proceedings (very strict; see BayObLG, NJW 95, 607).
4.3 Company law
In corporate law, the majority shareholder's house attorney often advises the company on legal matters. If there is now a dispute between the shareholders, the interests of the company (e.g. in the event of a resolution being challenged) are not necessarily congruent with those of the majority shareholder, especially since the majority shareholder may be excluded from forming a will within the company (e.g. according to Section 47 (4) GmbHG). Since such disputes are often based on earlier resolutions or contracts in which the aforementioned house attorney was involved, the assumption of the identity of the legal case between the earlier discussion and the later dispute is obvious, so that § 3 BORA must be checked very carefully in each individual case .
4.4 Criminal Law
In criminal law, particular caution is required in the case of series crimes with changing participants or partially overlapping series and / or participants. When defending cases of narcotics trading, it is important to ensure that the two “dealers” A and B have not bought some of the goods from the same “wholesaler” and that buyer A can exonerate himself at the expense of alternative buyer B.
In the case of industrial accidents, for example, it is typical that despite an initial agreement (both innocent), a conflict of interests emerges between the superior and the subordinate in the course of the proceedings.
In the context of a tenancy dispute in which A asserts claims against B, B is represented by RA R as a lawyer. In another legal matter, RA R has asserted C's claims against A. RA R has obtained a payment title for C against A. On behalf of C, RA R has now attached A's claim against his other client B. RA R obtained a garnishment and transfer order for obligee C and at the same time continued to represent third-party debtor B. This also represents a conflict of interests and thus a representation of conflicting interests, since R for B must raise objections to A's request in his interest, but must defend this in the interests of C.
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