In the market of occupational pension consultancies, various models of cooperation between tax advisors, financial service providers and management consultants can be identified. Many distribution models do not hold in practice. Legal design Under the heading “legal design”, some distributors or management consultants offer, among other things, the “formulation of pension commitments, as well as the associated shareholder resolutions”. ? by a lawyer. But where are the limits of the cooperation with the professional lawyer in practice?
1st model with home visit: Some financial service providers like to adorn themselves with a professional lawyer. The telephone canvassing leads to an appointment, to which the financial service provider then brings an (unemployed?) lawyer. This involves offering the initial or home visit to customers in the company ? and of course this action of a display of honorary professional competence does not cost the (potential) customer a penny. However, this has two catches: On the one hand, the lawyer himself (and, incidentally, not via third parties, a management consultant-bAV or any other financial service provider) may offer a house visit to the potential client in an advertising manner, because in the opinion of the princes of the profession this would be ingratiating and enticing, and therefore not objective. The further catch is that a lawyer may not offer his services free of charge, and a fortiori may not advertise for a specific order in an individual case that is at issue here.
2nd model with StB/RA as an employee: The range of services offered by several management consultants in the area of occupational pension schemes includes, among other things, the legal structuring of pension commitments or, for example, the examination of the exemption from the social insurance obligation. These services are proactively offered to financial service providers and insurers (e.g. for the “broker service”). However, advising clients of an occupational pension consulting firm does not work through a permanent employee (RA/StB). Three reasons are decisive: On the one hand, in-house lawyers working in banks, for example, are repeatedly instructed by their chambers that they are only allowed to advise their own firm, not its clients. Also a cooperation in the distribution of insurance and financial products against commission is incompatible with the profession of a tax advisor or lawyer ? the withdrawal of the licence by the Chamber of the Honorary Professional may be threatened. Further ? and this is crucial for the occupational pension consulting firm ? it is of no use if a lawyer or tax advisor as managing director or other employee handles the clients’ inquiries: The BGH clarified in its decision of 22.02.2005 again that a bAV-consulting firm (e.g. a GmbH) ? when she offers legal advice ? also as such requires a permit under the Legal Advice Act. If permission is not granted, the consultancy contracts are null and void.
3. model of the management consultant Some financial service providers offer not only legal and tax advice, but also numerous business management service modules. Legal and tax advice, on the other hand, takes a back seat as one of several services. This also does not make the service offer legal, because according to a BGH decision of 23.01.1981 it is not possible to offer advice in the tax or legal field alongside other professional tasks. Better maps have here certified pension and insurance advisors, who have to account naturally then also after a fee order ? so no commissions. Incidentally (then often no longer quite so ?independent?) financial service providers may of course provide tax and legal advice themselves, but only as a so-called auxiliary business in close connection with a product sale in the foreground. The financial services provider is liable for the correctness of such advice ? whether he’s insured for it or not.
4. model of sales remuneration One or the other IORP sales company or IORP business consultant offers its partners, including independent financial service providers, a sales partner remuneration. This compensation allows the sales partner to participate in the payments of the end customer/entrepreneur etc. for “expert opinions on pension commitments” or “examination of the social security status”. The expertises and/or examinations provide a ?firm coworker? and/or lawyer as co-operation partners. The only stupid thing about this model is that the commissioned lawyer is not allowed to give away any part of his fee, neither directly nor indirectly via an intermediary bAV distributor. This applies even if the lawyer concludes his own contract with the client.
5. model of tax consultant remuneration The following particularly nice model has been devised by a bAV distributor: The distribution partner or financial service provider concludes a contract with the tax consultant. The tax consultant is promised an hourly remuneration: “The prerequisite for this is that the financial service provider receives remuneration/commissions from brokered business”. Some honorary professional generates a substantial conversion in co-operation with Finanzdienstleistern ? however a success remuneration under this ?condition? of the Verprovisionsierung is forbidden to the honorary professional. In practice, there are also said to be wives who like to hold out their hand when the opportunity arises ? not infrequently via a legally registered trade. The StB himself is not allowed to run a business ? i.e. he is also not allowed to act as a tip-giver on a success basis, because this would jeopardise his own licence.
6. model of cooperation It can be permissible and sensible if the “management consultant-bAV” for business management and financial advice works as an employee of a tax firm. In this case, the usual hourly rates are agreed ? no commission is paid.
7. model of cooperation The topic of occupational pension consulting touches on a wide range of disciplines. The clear separation of tasks and responsibilities often does not mean a ?solution of all bAV problems by one single provider? There is still a legal opinion that the financial service provider is not responsible for the tasks and responsibilities of a single provider. Johannes Fiala, lawyer (Munich), M.B.A. (Univ.Wales), M.M. (Univ.), certified financial and investment advisor (A.F.A.), EC expert (C.I.F.E.), banker (www.fiala.de )
Legal advice prohibited. In terms of the seal, the honorary professional is not permitted to work for the purpose of earning a commission from financial brokerage. Cooperation is required.
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About the author
Dr. Johannes FialaPhD, MBA, MM
Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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