OGH: Advertising of a lawyer

May 26, 2021 Benn-Ibler Rechtsanwälte

A legal advisor's choice of words announcing a "forceful medial representation" (“schlagkräftige mediale Durchsetzung”) is not an insulting or credit-damaging approach and is justifiable in the sense of section 9 (1) of the Lawyers' Act (Rechtsanwaltsordnung, RAO) referred to by the lower courts.

The Guidelines for the Exercise of the Legal Profession and for the Supervision of the Duties of Lawyers and Trainee Lawyers (Richtlinien für die Ausübung des Rechtsanwaltsberufes, RL-BA) regulate the professional ethics of lawyers. Pursuant to Sec. 49 RL-BA 2015, the lawyer must observe the interests of his client, the honor and reputation of the profession, as well as the professional duties when dealing with the media. Publications in the media initiated within the scope of a mandate are permissible with the express consent of the client, provided they are in the interest of the client after careful consideration by the lawyer.

In the case at hand, the plaintiff did not claim the defendant's media work on the merits, but the advertising with the wording "forceful medial representation" as unfair. The person seeking legal advice would understand this to mean the media's negative stirring up of public opinion against his opponent and the announced methods would contradict the professional diligence of the profession.

In the appeal, the plaintiff argued that the Court of Appeal had unreasonably considered this advertising to be permissible. The lower courts did not agree with the plaintiff's legal opinion that the reference to a forceful medial representation had been used to advertise "by exerting pressure via the media and creating trouble through disparagement" and that a forceful medial representation had a credit-damaging effect per se. The contested statement was not to be understood as a promotion of illegal or unethical methods.

The Supreme Court held that the Court of Appeal had not assumed that media work in violation of the law and the profession was covered by the professional code of conduct for lawyers. Rather, the claim for an injunction was denied because the defendant's advertising was not alleged to have used such methods.

OGH 4 Ob 34/21k (15.03.2021)