When lawyers argue…

Like members of other independent professions, attorneys at law are subject not only to general legal provisions but also to a special code of professional conduct, which includes, in particular, the Attorney Regulations (RAO), the Guidelines for the Practice of the Legal Profession (RL-BA), and the Disciplinary Statute (DSt). Pursuant to § 21 RL-BA, a lawyer may neither unnecessarily provoke the opposing party’s attorney at law nor attack them personally; in the event of breaches of duty within the meaning of § 1 DSt, severe penalties may be imposed, up to and including removal from the register of attorneys at law (§ 16(4) DSt), which effectively amounts to a professional ban of at least three years (§ 18 DSt). So how do attorneys at law resolve their disputes while avoiding overly acrimonious conflicts?

Among other things, Section 21(2) of the RL-BA provides guidance on this matter; according to this provision, in the event of a personal dispute arising from the practice of law with another attorney at law who is a member of the same bar association, an attorney at law must request mediation from the committee of the respective bar association. This raises the question of whether it is mandatory to refer the matter to said committee before pursuing legal action, and what the legal consequences are if the matter is not referred to the committee. Is this a so-called “mandatory” conciliation clause, such that failure to comply with it renders legal action inadmissible or at least temporarily precludes the enforceability of the claim, or is the provided-for dispute resolution merely “optional”?

A systematic analysis of § 21(2) of the RL-BA identifies this provision as a professional duty. The purpose of the provision is to prevent disputes between members of the bar from being played out in public and the associated disclosure of matters subject to confidentiality. This alone suggests that, while a violation of this provision should be assessed from a disciplinary law perspective, it should not affect the enforcement of claims before the ordinary courts. This is supported by the fact that the Bar Association’s committee is not an arbitral tribunal within the meaning of § 587 of the Code of Civil Procedure (ZPO); it can only facilitate an agreement as a mediator through conciliation and has no decision-making authority. The establishment of a mandatory conciliation procedure that (temporarily) precludes recourse to the courts is unlikely to disproportionately restrict access to the courts, even in light of Article 6 of the ECHR, which guarantees the right to a fair trial. 

It is therefore encouraging, in terms of the right to a fair trial, that the Supreme Court has recently provided legal clarity by drawing on standards from various “chambered” professional groups and also with regard to Section 21(2) of the RL-BA. In its decision 9 Ob 39/25p, with regard to the provisions of the General Guidelines for Real Estate and Asset Trustees (ALR), the court held that mandatory dispute resolution would require a higher degree of specificity, such as a specification of when and for what period the enforceability of the claim is to be precluded. Furthermore, it would be necessary to define how attempts at settlement that have already taken place but remained unsuccessful are to be assessed, in order to avoid a delay in legal protection caused by repeated attempts at settlement. Consequently, the Supreme Court therefore held, with regard to the ALR, that there is merely “an optional professional duty, the breach of which may, at most, result in disciplinary consequences, but does not render the claim unenforceable or preclude legal recourse.”

§ 21(2) RL-BA constitutes the counterpart for attorneys at law to the ALR examined in Decision 9 Ob 39/25p, and the Supreme Court therefore also commented on this matter obiter in that decision. It explained that § 21(2) RL-BA is structured similarly to the ALR, from which it can be concluded that it merely establishes a professional and disciplinary standard, but does not mandate dispute resolution in the sense of a temporary bar to litigation.

Decision 9 Ob 39/25p represents a consistent continuation of a line of case law previously established by the Supreme Court. Already in its decision 4 Ob 33/24t, the Supreme Court, based on similar considerations, had deemed an arbitration clause in ÖNORM B 2110 to be merely “optional” and had ruled that dismissing a lawsuit for failure to first initiate arbitration proceedings was unjustified.

In summary, the Supreme Court has now clarified that the provision of § 21(2) RL-BA merely provides for optional dispute resolution. While failing to attempt mediation may be relevant under professional ethics rules, it does not constitute a restriction on legal protection or access to the courts. This is consistent, as it is already required by fundamental rights considerations to restrict legal recourse only in those cases where this is expressly provided for by law. The enforceability of the claim and the admissibility of legal action therefore remain unaffected by the provision of § 21(2) RL-BA.
 

Co-author: Markus Kunze | Associate