Confidentiality in Your Own Case: When Lawyers, Tax Advisers and Doctors May Disclose Client Secrets

Published on 07.11.2026

Confidentiality in Your Own Case

Lawyer confidentiality has exceptions, and the same applies to tax advisers and, more narrowly, to doctors: anyone who is met by his own client with a chamber complaint, a criminal report or a lawsuit may defend himself. This is permitted only insofar as necessary, and only vis-à-vis the body that decides on the allegation.

An example: A tax adviser sends his annual invoice. The client considers it excessive and announces that he will complain to the tax advisers’ chamber unless the invoice is cut by half. The complaint arrives, and the chamber asks for a statement. May the tax adviser describe there what he did for the client, and thereby also disclose the client’s tax affairs? (Fictitious case.)

In short: Yes, he may defend himself, but only as far as necessary and only vis-à-vis the competent body. Silence is often the safer course: vis-à-vis the chamber he may refuse to provide information insofar as he would otherwise breach his duty of confidentiality (Section 56(1) BRAO).[63]

When a professional is put under pressure by his client, for instance by the announcement of a complaint or a criminal report, he may defend himself, but not without limits: the duty of confidentiality remains the yardstick, and a breach can be a criminal offence under Section 203 of the German Criminal Code (StGB). This article sets out the principles for lawyers, tax advisers and doctors, and the particularities for publicly appointed and sworn experts and for actuaries; a separate section deals with enforcing fees (lawsuit, assignment, debt collection) on the basis of case law and chamber material. What to do step by step is set out in the second article, “Chamber Complaint, Criminal Report, Threat: What Professionals Should Do Now”.

Overview: Rules by profession

Each profession is governed by its own rules, which can be divided into criminal law, professional law and supervision. The table shows where confidentiality is regulated and whether professional law provides an authority to protect one’s own interests.

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May I, as a lawyer, tax adviser or doctor, disclose secrets in order to defend myself?

Which rules apply: criminal law or professional law?

Under criminal law, Section 203(1) StGB threatens imprisonment of up to one year or a fine for anyone who, without authorisation, discloses a secret of another that was entrusted to him or otherwise became known to him as, among others, a doctor (no. 1), lawyer or tax adviser (no. 3).[1] Under professional law, the duty follows for lawyers from Section 43a(2) BRAO and Section 2 BORA,[2][3] for tax advisers from Section 57(1) StBerG and Section 5 BOStB,[4][5] and for doctors from Section 9 of the (model) professional code and the professional codes of the state medical chambers.[6] Permission clauses in professional codes are statutory-instrument law; they provide guidance but do not replace one’s own criminal-law assessment. A disclosure can be defensible under professional law and still unauthorised under criminal law. BRAO and BORA each contain their own duties of confidentiality with their own exceptions (see below).

In what order do I check whether I may disclose?

“Without authorisation” appears in the offence definition of Section 203 StGB but does not itself name the authority; that comes from outside: from the consent of the person whose secret it is, from statutory rights and duties of disclosure, or from a justification such as Section 34 StGB. A professional code is statutory-instrument law and not a statute: it provides guidance but creates no criminal-law authority and does not replace the criminal-law assessment. For the professional who is himself affected, this yields the following order:

• First: Release by the person whose secret it is. This is the cleanest route; what matters is its scope, its addressee and the proceedings for which it applies.
• Second: The professional-law clause as an indicator. Lawyers: no breach insofar as the conduct “is necessary to protect legitimate interests, e.g. to enforce or defend claims arising from the mandate or to defend oneself in one’s own case” (Section 2(4)(b) BORA).[3] Tax advisers: the duty does not apply insofar as disclosure serves to protect one’s own legitimate interests or the client has granted a release.[5] Doctors: the model professional code knows only release or disclosure “to protect a higher-ranking legal interest”; it contains no clause for own interests.[6] However, the guidance of the Federal Medical Association (Bundesärztekammer) and the National Association of Statutory Health Insurance Physicians (KBV) (as of 01.10.2025) recognises that confidentiality may exceptionally yield where doctors can protect their own legitimate interests only by disclosing: for example to enforce a fee claim through a lawyer or in court, to defend themselves against criminal-prosecution measures, or to file a criminal report where the doctor or practice staff became victims of violence by a patient during treatment. They name no legal basis for this. In particular, they do not derive this authority from justifying necessity, which they treat separately with reference to Section 9(2) MBO-Ä and Section 34 StGB (nos. 2.4.4.1 and 2.4.4.2).[7] Counter-position: the “protection of legitimate interests” appears as a general justification in the StGB in Section 193, and that provision applies to defamation offences;[99] where the formula appears elsewhere, for example in Section 201a(4) StGB, it applies only to the offence in question; there is no such provision for Section 203 StGB. In our view, one’s own interests can often be protected without disclosure: the professional can wait and see whether the debtor acknowledges the claim after all, whether the complaint is withdrawn, the proceedings are discontinued or a release is granted after all. Premature disclosure can be unnecessary and punishable. For fee lawsuits, case law goes further (see the section on fee enforcement).[9]
• Third: Justification. Justifying necessity (Section 34 StGB) comes into consideration only as a subordinate point: a present danger to a legal interest that cannot otherwise be averted, a substantially outweighing interest, an appropriate means.[8] For fee lawsuits, the BGH does not base disclosure on this but on the legitimate protection of one’s own interests; the OLG Brandenburg weighs the interests within the framework of the duty of confidentiality under Section 57 StBerG (see the section on fee enforcement). Whether the protection of legitimate interests applies alongside Section 34 StGB is disputed; the more recent criminal-law literature predominantly requires Section 34 StGB (references in Barton, FS Beulke 2015, pp. 605, 608 et seq.).[102] For a lawyer’s fee lawsuit, Henssler considers recourse to Section 34 StGB unnecessary because the RVG presupposes such actions (Sections 11(5) sentence 2, 14(2) RVG).[103]

How do I enforce my fee despite confidentiality, assignment and revocation of the release?

Question: May the professional sue for his fee even though he must touch on secrets of the client or patient in doing so? Answer of the courts: Yes. The Federal Court of Justice (BGH) described suing a defaulting patient for a fee, from the standpoint of legitimately protecting one’s own interests, as “undoubtedly permitted”; the doctor may use the help of a lawyer in doing so (BGH, 23.06.1993 – VIII ZR 226/92).[9] For the tax adviser, the Higher Regional Court (OLG) of Brandenburg, in an interim judgment on an employee’s right to refuse to testify (Section 387 ZPO), stated in its reasons: the duty of confidentiality under Section 57 StBerG does not prevent him from conducting a lawsuit over his fees and presenting circumstances from the mandate relationship, insofar as this is necessary for enforcement; the client’s interest in secrecy yields once he has caused the conflict of interest by refusing to pay (OLG Brandenburg, 21.11.2001 – 7 U 216/00, para. 21).[10] The court does not comment on Section 203 StGB. Under professional law, Section 2(4)(b) BORA provides the same for lawyers;[3] the Federal Medical Association and KBV name fee enforcement as a case of protecting legitimate interests without stating a legal basis (nos. 2.4.4.1 and 2.4.4.2).[7]

Question: May he present and prove what he needs? Answer: Yes, insofar as necessary. In the tax adviser’s fee lawsuit, the OLG Brandenburg in principle denied an employee named as a witness a right to refuse to testify, even though the former client had not released him; the duty to testify, which exists in principle, comes back into force (OLG Brandenburg, 21.11.2001 – 7 U 216/00, para. 23).[10] The witness had refused to testify because the defendant had not released him; on the claimant’s application, the court determined by interim judgment that he had no right to refuse to testify under Section 383(1) no. 6 ZPO (paras. 13, 19, 23).[10] Our recommendation (not from the judgment): in case of doubt, the witness should first refuse to testify and, before testifying, have the duty to testify determined by interim judgment on the application of the party offering the evidence. Anyone who testifies after the duty to testify has been finally established does not, in our assessment, disclose without authorisation; the Federal Court of Justice has not decided this for that constellation. Question from the actuarial perspective: Is it enough to state only the amount, invoice date and invoice number in the complaint and to offer the invoice as evidence only after a release? Answer: The cited decisions do not require such a restriction; they limit the presentation to what is necessary for enforcement (BGH, VIII ZR 226/92; OLG Brandenburg, 7 U 216/00).[9][10]

Counter-position: Section 34 StGB does not apply to a mere payment claim because an unpaid invoice is not an “other legal interest”. Question: On what does case law base the lawsuit? Answer: The BGH bases it on the legitimate protection of one’s own interests, not on Section 34 StGB (BGH, VIII ZR 226/92).[9] The OLG Brandenburg mentions neither Section 34 nor Section 203 StGB; it weighs the interests within the framework of Section 57 StBerG: the client’s interest in secrecy yields to the tax adviser’s legitimate interests because the client caused the conflict by refusing to pay (OLG Brandenburg, 7 U 216/00, para. 21).[10]

Question: Is the service deemed rendered if the client or patient refuses or revokes the release (actuarial view: obstruction of evidence)? Answer: Not automatically. The Federal Labour Court (BAG) held that refusing the release can be taken into account in the assessment of evidence under Section 286 ZPO, but does not mean that the opposing party’s submissions are deemed admitted; evidentiary relief up to a reversal of the burden of proof remains possible (BAG, 08.05.2014 – 2 AZR 75/13, para. 31).[11] Sections 427 and 444 ZPO say only that assertions “may” be regarded as proven.[12] Question: How does this work in a doctor’s fee lawsuit? What is established is that the professional may present in his own fee lawsuit what is necessary for enforcement (BGH, VIII ZR 226/92),[9] and that the OLG Brandenburg denied the named witness the right to refuse;[10] the consequences of a refused release are determined by the assessment of evidence (Section 286 ZPO).

Question: Can the court order the release? Answer: The court cannot replace the release. Only the holder of the secret can release; the right to refuse to testify ends with his release (Section 385(2) ZPO).[28] The court may take the refusal into account in the assessment of evidence (see above).[11] It can order a party to produce documents to which that party has referred; third parties with a right to refuse to testify are not obliged to do so (Section 142(1), (2) ZPO).[101] The court may ask the party to obtain the release and summon the witness; whether he testifies is for the witness himself to decide (BGH, 16.11.2017 – 3 StR 460/17, para. 10, on criminal proceedings).[29]

Question: May the court refrain from summoning a witness bound by confidentiality because he has not been released? Answer: In criminal proceedings, no. The BGH set aside a judgment because the Regional Court had not summoned doctors despite the refused release: it should have summoned them and brought about their decision on the right to refuse to testify; that they would have testified could not be ruled out (BGH, 16.11.2017 – 3 StR 460/17, paras. 11 et seq.).[29] We know of no corresponding decision for civil proceedings. There the BGH generally prohibits disregarding a material offer of evidence by anticipated assessment of evidence (BGH, 12.05.2021 – XII ZR 152/19, paras. 10, 14 et seq.).[104] In our assessment, the same therefore applies there: summon; the witness decides.

Question: Can the opponent have the evidence rejected as late if the professional produces it only after the release? Answer: Late submissions are to be admitted after the deadline only if they do not delay the proceedings or if the party sufficiently excuses the delay (Section 296(1) ZPO); otherwise they may be rejected in case of delay and gross negligence (Section 296(2) ZPO).[108] It therefore depends on whether the delay is excused. We have found neither in case law nor in commentary whether a mistake about a supposed ban on disclosure suffices for that; in our assessment it will hardly suffice.

Question: The professional may tell his own lawyer only what is necessary for pursuing the claim (see below). How far may the lawyer go in presenting the case in court? Answer (our assessment): No further than the client himself. The lawyer is himself bound by confidentiality (Section 43a(2) BRAO; Section 203(1) no. 3 StGB);[2] the fact that he is bound by confidentiality does not widen what may be communicated to him and what may be presented. The yardstick remains what is necessary.

Disclosing in stages. In our view, the criterion “necessary” implies a sequence: (0) First send a reminder out of court, stating only the amount, date and invoice number; even the application for a payment order (Mahnantrag) requires only a description of the claim (Section 690(1) no. 3 ZPO); diagnoses are not necessary for that (see below on one’s own lawyer).[100] The BGH calls suing for payment the “last resort for enforcing a fee claim” (BGH, 10.07.1991 – VIII ZR 296/90).[15] (1) Ask for a release beforehand. In our assessment, the professional need not wait until a release is ruled out; whoever refuses it when asked has caused the conflict. (2) Present only what is needed for a conclusive claim; the presentation is not to be measured against full proof. (3) Present more only once the other side disputes it; the OLG Brandenburg admits evidence “insofar as it is disputed” (para. 21).[10] (4) Offer evidence that would reveal secrets on condition of a release; if the opponent refuses it, plead obstruction of evidence. Limits: the refusal is taken into account in the assessment of evidence; it does not take effect automatically (BAG, 2 AZR 75/13).[11] The claimant must plead conclusively; in the Brandenburg case, the Regional Court had dismissed the fee lawsuit because the conclusion of the contract had not been conclusively pleaded (para. 6).[10] As defendant, the professional may dispute assertions if that is true; he must, however, respond to the opponent’s assertions (Section 138(2) ZPO), and what he does not expressly dispute is deemed admitted (Section 138(3) ZPO). An invented alternative explanation, such as a private loan, is prohibited by the duty of truthfulness (Section 138(1) ZPO).[62] The same applies to chamber proceedings: a caution under professional law may be more acceptable than a defence that breaches Section 203 StGB; in that case a statement for the file that one does not admit the allegation is sufficient.

Question: Which routes outside the lawsuit do the chambers mention? The professional statutes and chambers name the following for lawyers:

• Cost assessment. If the fee is part of the costs of court proceedings, the court of first instance fixes it on application as soon as it is due (Section 11(1), (2) RVG).[13]
• Fee opinion. If the amount of the fee is disputed in litigation, the court must obtain an opinion of the board of the bar chamber; it is to be given free of charge (Section 14(3) RVG).[13] The board also gives opinions to courts in other cases (Section 73(2) no. 8 BRAO).[14]
• Conciliation. The chamber board mediates on application in disputes with clients and may make conciliation proposals; if the client applies for the procedure, the member’s consent is not required; the proposal is binding only if both sides accept it (Section 73(2) no. 3, (5) BRAO).[14]

May I assign the fee claim or hand it to a debt-collection company, and what happens after a revocation?

Question 1: Is the assignment effective without consent? Answer of the courts: Not vis-à-vis a commercial billing agency. The assignment of a medical or dental fee claim to a commercial billing agency, made for the purpose of invoicing and collection with handover of the billing documents, is void under Section 134 BGB for breach of confidentiality if the patient has not consented (BGH, 10.07.1991 – VIII ZR 296/90, official headnote).[15] The reasoning: under Section 402 BGB the assignor must give information and hand over the documents and cannot fulfil this duty without breaching confidentiality; it does not matter whether secrets are actually disclosed (BGH, 06.06.2019 – IX ZR 272/17).[16] The BGH confirmed this and stated that engaging a third party in addition to one’s own lawsuit is regularly not necessary (BGH, 23.06.1993 – VIII ZR 226/92).[9] The consent must make the occasion and purpose recognisable; a wording that mentions collection and, if necessary, a lawsuit was held sufficient by the BGH (BGH, 10.10.2013 – III ZR 325/12, paras. 11–13).[17] The Local Court (AG) of Mannheim dismissed a claim because the consent must recognisably extend for the patient also to the transfer of the treatment data to the refinancing bank (AG Mannheim, 20.09.2011 – 10 C 102/11, case-law database of the Baden-Württemberg state dental chamber).[18] Federal Medical Association and KBV: consent is valid only if it is sufficiently specific; a blanket advance consent in the treatment contract is not enough; transfer to private-practice billing agencies requires consent (no. 2.4.1).[19]

Exception among members of the professions. Lawyers may assign fee claims to lawyers without consent; otherwise assignment is permissible only with express consent in text form or where the claim has been finally established by a court (Section 49b(4) BRAO).[20] The BGH held the assignment to a lawyer without consent effective and derived from the provision a right of the assignee to refuse to testify (BGH, 01.03.2007 – IX ZR 189/05, para. 19).[21] For tax advisers, Section 64(2) StBerG contains a corresponding rule;[22] the BGH held the assignment of a tax adviser’s fee claim to a tax advisory firm without the client’s consent effective and pointed out that the client can protect himself by contractually excluding assignment under Section 399 BGB (BGH, 25.09.2014 – IX ZR 25/14).[23] Corresponding rules are contained in Section 55(3) WPO for auditors[24] and Section 43a PAO for patent attorneys.[25] The Hamburg Chamber of Psychotherapists considers transfer to a debt-collection company possible if everything has been tried, repeated reminders have been sent and the reminder already states that the necessary information will be passed to a debt-collection company in case of non-payment; only the data necessary for enforcement may be transmitted (as a rule name, address, copy of the invoice with the diagnosis blacked out, reminder letter) – chamber view.[26]

Question 2: Can the release be revoked, and does the assignment remain? Answer: The release can be revoked at any time; what matters is the unequivocally declared will of the person whose secret it is (BGH, 07.03.1996 – 4 StR 737/95, BGHSt 42, 73, on criminal proceedings (Section 53 StPO)).[27] According to the Federal Medical Association and KBV, revocation takes effect for the future (no. 2.4.1).[19] For the assignment: if it is effective without consent under the professional statute, for example under Section 64(2) StBerG, the client must accept a change of creditor and can protect himself only through a contractual exclusion under Section 399 BGB (BGH, IX ZR 25/14).[23] For health professions the assignment without consent is void (BGH, IX ZR 272/17);[16] a revocation of consent already given takes effect for the future according to the medical chambers’ line. Question: Does revocation undo an assignment that is already effective? What is established is that the BGH refers the client who wants to protect himself against a change of creditor to the contractual exclusion under Section 399 BGB and ties the effectiveness of the assignment to the conditions at the time of assignment; revocation takes effect for the future. Recommendation: put the consent in writing, state purpose and scope, include collection and lawsuit (BGH, III ZR 325/12).[17]

Question 3: Must or may the professional testify as a witness in the assignee’s lawsuit? Answer: In civil proceedings, anyone who by virtue of his status has been entrusted with facts whose secrecy is required may refuse to testify (Section 383(1) no. 6 ZPO); the right lapses with the release (Section 385(2) ZPO).[28] After revocation, the right to refuse to testify in criminal proceedings applies again (BGHSt 42, 73, on Section 53 StPO).[27] Where it exists, it is for the doctor to decide freely whether to testify; the person whose secret it is has no claim in criminal proceedings that he remain silent (BGH, 16.11.2017 – 3 StR 460/17, headnote 1).[29] In his own fee lawsuit, the OLG Brandenburg denied employees the right to refuse to testify (7 U 216/00);[10] in the case reported by the Federal Constitutional Court (BVerfG), the local court and regional court had obliged the lawyer to testify in the fee lawsuit, and the constitutional complaint was not accepted for decision (BVerfG, 17.03.2008 – 1 BvR 3069/06).[30] If the professional sues as a litigation representative under an authorisation to collect, he is himself the plaintiff (BGH, IX ZR 272/17);[16] the question of his position as a witness then does not arise. Question: Is the assignor available as a witness in a debt-collection company’s lawsuit after revocation? What is established is the legal position on the right to refuse to testify under Section 383 ZPO; recommendation: word the consent so that it includes witness testimony, or sue yourself.

Question 4: What procedural consequences does a revocation have in pending proceedings, and is the professional a party or a witness in his own case? Answer: Refusing the release can be assessed as obstruction of evidence under Section 286 ZPO, with evidentiary relief up to reversal of the burden of proof but without automatic admission (BAG, 08.05.2014 – 2 AZR 75/13, para. 31).[11] A party is whoever sues as the holder of the right or as litigation representative; in a silent assignment with authorisation to collect, the assignor sues in his own name on a third party’s right (BGH, IX ZR 272/17).[16] The assignee who sues after assignment is the party; the assignor is then not a party.

Question 5: Is one’s own lawsuit the legally safe route, and what applies to re-assignment and voluntary litigation representation? Answer: One’s own lawsuit is the route documented in case law; the BGH bases it not on a release but on protecting one’s own legitimate interests (BGH, VIII ZR 226/92).[9] For voluntary litigation representation, the BGH requires an effective authorisation and one’s own interest worthy of protection, including an economic one; a seller of a claim may have it, mere technical facilitation of the conduct of the proceedings is not enough (BGH, 24.08.2016 – VIII ZR 182/15, paras. 17–19).[31] Consequence in practice: anyone who wants to sue himself after an assignment needs either a re-assignment or an authorisation with his own economic interest; re-assignment is advisable before suing.

The common picture across the professions. Own lawsuit: permitted, limited to what is necessary (lawyers: BORA; tax advisers: OLG Brandenburg; doctors: BGH, BÄK/KBV). Assignment and debt collection to persons outside the professions: specific, informed consent (doctors: BGH, BÄK/KBV; dentists: AG Mannheim via LZK BW); exception between members of the professions (lawyers, tax advisers, auditors, patent attorneys). Revocation: at any time with effect for the future. Psychotherapists Hamburg: mention of debt collection already in the reminder. Pharmacists and veterinarians are, as health professionals, subject to Section 203(1) no. 1 StGB; passing information on to persons assisting is permissible only insofar as necessary (Section 203(3) sentence 2 StGB).[32] For veterinarians, the AG Munich assumed that the assignment of the fee claim without the animal owner’s consent was possible (AG München, 30.08.2024 – 161 C 16714/22, para. 9).[33] Auditors (Sections 43 and 55(3) WPO) and patent attorneys (Section 43a PAO) have the same rule as tax advisers: free assignment among members of the professions, otherwise consent or a final judicial finding, with the acquirer bound to confidentiality.[24][25] Notaries are subject to confidentiality under Section 18 BNotO; their costs are collected not by a fee lawsuit but on the basis of a cost statement furnished with an enforcement clause under the Code of Civil Procedure (Section 89 GNotKG).[34]

Relatives, heirs, guardians, social welfare office: from whom do I claim the fee, and what may I disclose in doing so?

Question 1 (parents and child): Who owes the fee for treating a minor child, and may the professional tell the parents the treatment data? Answer: For a minor child, the treatment contract is as a rule concluded between the parents and the hospital operator as a contract for the benefit of the child; unless the circumstances indicate otherwise, both parents become entitled and obliged under it, and in principle it does not matter who accompanied the child (BGH, 28.04.2005 – III ZR 351/04, para. 12).[35] On disclosure to the custodial parent: the AG Siegen stated that the custodial parent is regularly regarded, including under criminal law, as the person entitled to dispose, so that no secrecy protection exists vis-à-vis him; the child’s personality right prevails only once the child is capable of independent judgement (AG Siegen, 20.05.2021 – 14 C 1101/20, paras. 24 et seq.).[36]

Question 2 (spouse): Is the patient’s spouse liable for the fee, and may the professional tell the spouse treatment data? Answer: Through transactions for the appropriate provision of the family’s necessities of life, both spouses become entitled and obliged unless the circumstances indicate otherwise (Section 1357(1) BGB); the BGH counted the medically necessary inpatient treatment of a child among them (BGH, 28.04.2005 – III ZR 351/04, para. 12).[35] Medically indicated, urgent treatment of a spouse also serves the appropriate provision of necessities; however, the co-liability of the other spouse can be excluded, among other things, by health insurance and by the financial circumstances in relation to the amount of the costs (cf. BGH, 27.11.1991 – XII ZR 226/90). Whether the hospital can bind the other spouse depends on the circumstances of the individual case; the safest course is for him to co-sign the treatment contract.[37] If the spouses live separately, the authority to bind each other lapses (Section 1357(3) BGB); the view that co-liability can nevertheless be based on Section 1357(1) BGB was described by the BVerfG as untenable under any conceivable legal aspect (BVerfG, 08.10.2015 – 1 BvR 455/14, para. 12).[38] On disclosing treatment data: the duty of confidentiality applies in principle also vis-à-vis the patient’s close relatives (BGH, 31.05.1983 – VI ZR 259/81).[39] Recommendation: tell the spouse only the amount; treatment details only with the patient’s release.

Question 3 (heirs): Does confidentiality continue after death, and who can release? Answer: The doctor’s duty of confidentiality continues beyond the patient’s death, in principle also vis-à-vis the surviving close relatives; no right of release can be granted to them, as otherwise confidentiality would be undermined vis-à-vis them (BGH, 31.05.1983 – VI ZR 259/81).[39] What matters in principle is the declared or presumed will of the person who can release the doctor, that is, generally the patient; during his lifetime only he can release (Section 385(2) ZPO); in court proceedings the doctor may not limit himself to refusing disclosure “on grounds of principle” (BGH, 04.07.1984 – IVa ZB 18/83).[40] The deceased can no longer release; the duty extends beyond death, his will applies first, otherwise his presumed will taking all circumstances into account, in particular the purpose of the person seeking inspection, and the decision lies with the holder of the secret, with a margin of assessment and a duty of conscientious examination (BGH, 26.02.2013 – VI ZR 359/11, paras. 9, 11, 12).[41] Question: May the fee claim against the heirs be substantiated with treatment details? What is established is the standard of the fee lawsuit: only what is necessary for collection is disclosed (BGH, VIII ZR 226/92).[9] Recommendation: state the amount and the invoice number; further details only insofar as the presumed will of the deceased and necessity support them, and document the examination.

Question 4 (guardianship): Who is the contracting party and payer if the patient or client is under guardianship? Answer: That depends on how the contract was concluded. A person concerned by guardianship proceedings can, within the scope of Section 275 FamFG, instruct a lawyer on the basis of the RVG, but cannot conclude a fee agreement with him if he lacks legal capacity (Sections 104 no. 2, 105 BGB) (OLG München, 18.09.2025 – 15 U 1133/25, paras. 16–20).[42] If a reservation of consent (since 01.01.2023 Section 1825 BGB, previously Section 1903 BGB) has been ordered and the guardian refuses approval, the lawyer’s contract is finally ineffective; the person’s actual legal capacity then does not matter (OLG München, 18.09.2019 – 15 U 127/19, paras. 9–11).[43]

Question 5 (social welfare office): May the professional claim reimbursement of costs from the social assistance provider and transmit patient data for that purpose? Answer: An application for reimbursement of costs within a reasonable period is required, which is regularly one month after the end of the emergency. To carry out its inquiries, the social assistance provider may, in cases of emergency medical aid, collect the patient’s health data even if the patient can no longer be reached and cannot give consent; the hospital that asserts a claim for emergency aid under Section 25 SGB XII because of emergency medical treatment is obliged to transmit to the social assistance provider the information it needs to check the correctness of the invoice (BSG, 18.11.2014 – B 8 SO 9/13 R, paras. 17 et seq.).[44] The emergency helper’s claim exists only if the social assistance provider has no knowledge of the case; its knowledge marks the break between the claims of the emergency helper and of the person in need (BSG, 23.08.2013 – B 8 SO 19/12 R, para. 18).[45]

Confidentiality after the death of the client or patient

What is new

• The medical chambers’ guidance on powers of attorney for future care governs the release vis-à-vis the attorney-in-fact, but not its effect after death.[87]
• Drafting route: the release is expressly declared also for the period after death, separately from the continued validity of the power of attorney.
• We have not found a cross-profession overview of the chamber professions at the chambers (own compilation, see 2. below).
• The duty to deliver wills to the probate court (Section 2259(1) BGB) is a statutory exception to the lawyer’s duty of confidentiality.[88] We have not found this in the chambers’ publications.

1. Principle

Confidentiality does not end with death. It continues (Section 203(5) StGB), and surviving relatives in principle have no right of their own to release from it.[39][89] What seems essential to us: the secret belongs to the deceased, not to the heirs. What matters is his declared will, alternatively his presumed will.[89][90] In case of doubt, the protection of trust takes precedence, and the professional must give general reasons for a refusal.[39][40]

2. Overview by profession

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3. Power of attorney for future care with release

If the deceased made a declaration on confidentiality, his declaration is decisive.[89] A release in a power of attorney for future care is subject to the proviso that it fits the life and treatment situation; if the patient objected to inspection during his lifetime, well after the power of attorney was granted, this will takes precedence.[94] The common templates separate the release field from the field “validity beyond death”.[95][96] A mere bank power of attorney concerns the management of assets; the release is not provided for there.[95] The more personal the subject matter of a power of attorney, the more likely it is to expire on death; for a health-care power of attorney without an express provision, this tends to speak against its continued validity.[97]

It remains open how far a release reaches after death (named professionals, purposes) and whether heirs can revoke it. We have found no decision on this.

4. Practical consequence

In our view, the release should be included in the power of attorney for future care or in the disposition expressly also for the period after death, naming the professional groups, the recipients and the purpose, in writing. The power of attorney itself must apply beyond death; in case of doubt, the declaration is interpreted first, and only then do Sections 672 sentence 1, 168 sentence 1 BGB apply.[97] It is occasionally argued that heirs too could release.[98] Case law predominantly rejects this;[39][89] the BGH left the question open in 1984.[40] Anyone who discloses without an express provision does so at his own risk.

5. Summary

• Confidentiality continues after death; heirs in principle cannot release.
• The declared will takes precedence over the presumed will.
• A power of attorney for future care with an express release also for the period after death is the safest route.

Counter-position: Must the patient’s or client’s name appear in the fee lawsuit?

Question 1: Counter-position – the mere fact that someone is a patient or client is a secret; the lawsuit must manage without naming him. What does case law say? Answer: In criminal proceedings the BGH expressly extended the doctor’s right to refuse to testify to the patient’s identity and the fact of his treatment; if the question is whether a person was in treatment with a doctor, the doctor has a right to refuse to testify, whether he would have to answer yes or no (BGH, 22.12.1999 – 3 StR 401/99, reasons at 2.).[46] For his own fee lawsuit, the BGH in principle considered the disclosure of treatment data justified in order to substantiate the claim conclusively and to meet possible objections (BGH, 23.06.1993 – VIII ZR 226/92).[9] The first decision concerns testimony as a witness, the second the professional’s own fee lawsuit.

Question 2: Counter-position – the invoice must be submitted with the name and the treatment details blacked out. How far does that go? Answer: The BGH requires that the disclosure of treatment data be limited to the reasonable extent necessary to collect the fee claims and that the circle of those to whom the treatment data are made accessible be kept as small as possible (BGH, 23.06.1993 – VIII ZR 226/92).[9] Details that are not needed for conclusiveness and for replying to objections are accordingly omitted; what is needed for that may be stated. Recommendation: invoice with amount, date and invoice number; description of services only insofar as the defendant disputes the claim. Blacking out works mainly where the debtor and the patient are different persons (parents, spouse): then the debtor suffices and the patient can remain unnamed as long as the treatment is not disputed. Where the patient is himself the defendant, he is known anyway; but being the defendant says nothing about why someone is the debtor (for example as a parent, spouse or heir) and does not replace the examination of necessity. Where his name is not necessary for the claim, naming him is, in our assessment, unauthorised. If the patient is named in the complaint, he is identifiable and his data are disclosed; if he is not identifiable, nothing is disclosed in our assessment (we have not read a decision on this).

Question 3: Counter-position – refusing the release is obstruction of evidence (Section 286 ZPO). Answer: This was dealt with above: the refusal can be taken into account in the assessment of evidence but does not mean that the opposing party’s submissions are deemed admitted (BAG, 08.05.2014 – 2 AZR 75/13, para. 31).[11]

Question 4: Who testifies in the fee lawsuit, and what must the professional set out? Answer: If the conclusion of the mandate becomes disputed in a lawyer’s fee lawsuit, the parties’ legal acts must be set out in factual terms so that the formation of the contract giving rise to the claim can be reviewed in law (BGH, 17.07.2003 – IX ZR 250/02, reasons III. 1.).[47] The lawyer as a witness can be released from confidentiality only by his client (Section 385(2) ZPO); the client is “master of the secret”, and a general weighing of whether the client’s interests worthy of protection are affected is not for the lawyer (BGH, 16.02.2011 – IV ZB 23/09, paras. 12, 14).[48] In the fee lawsuit reported by the BVerfG, the local court and regional court had obliged the lawyer to testify; the constitutional complaint was not accepted for decision (BVerfG, 17.03.2008 – 1 BvR 3069/06).[30] The contradiction with the BGH decision is only apparent: there the lawyer was to testify in someone else’s lawsuit, here it concerns his own fee claim, where the lower courts based the duty to testify on protecting legitimate own interests; there is no substantive decision of the BVerfG or the BGH on this.

Question 5: Does a patient who objects to the payment order lack the will to keep the matter secret – and is nothing then secret any more? Answer: No. The OLG Hamm describes the concept of a secret by three elements: being secret, the will to keep it secret and the objective interest in secrecy (OLG Hamm, order of 22.02.2001 – 2 Ws 9/01, reasons II. 2.).[106] It denied the will to keep it secret because the person concerned had passed the secret on “consciously and purposefully to another group of persons”.[106] The case concerned an examination mark in a doctoral procedure, not a doctor or lawyer case; in our assessment only the general concept of a secret is transferable. (The date 23.11.2000, which is occasionally cited in the literature, is the decision of the Public Prosecutor General against which the application was directed.)[106]

Application to the fee lawsuit: A patient who objects to a claim does not consciously and purposefully pass anything on to another group of persons; in our assessment the will to keep it secret is present. The starting point is therefore the objective interest in secrecy; for treatment data it will regularly have to be affirmed. The smallness of the claim (about EUR 80) belongs, in our assessment, not to the elements of the offence but to the weighing and to the question of what is necessary for justification.

How much may I disclose?

All authorities are subject to the proviso of necessity.[3][6] In practice this means: disclosure is made only to the body responsible for the proceedings, only what is needed for defence or legal action, and only in the proceedings themselves – not to the press, colleagues, association members or on social media. If the facts can be presented without names and details, the abstract presentation is to be chosen. The weighing is recorded in writing.

Am I liable to prosecution for an oversight or mistake?

Fact. Section 203 StGB punishes unauthorised disclosure; the provision contains no penalty for negligent disclosure.[1][49] Under Section 15 StGB only intentional conduct is punishable unless the law expressly threatens negligent conduct with punishment. A person does not act intentionally if, when committing the act, he is unaware of a circumstance that belongs to the statutory definition of the offence (Section 16(1) sentence 1 StGB). If the offender lacks the insight that he is doing wrong, he acts without guilt if he could not avoid the mistake; “if the offender could avoid the mistake, the penalty may be mitigated under Section 49(1)” (Section 17 StGB).[49]

Assessment – conscious disclosure. Whoever consciously passes on unredacted material although he knows that the details are not needed for the claim acts intentionally; Section 15 StGB helps only in the case of an oversight, for example where a detail was overlooked when redacting.[49] If the doctor wrongly considers the disclosure necessary and therefore permitted, he is mistaken about the limit of his authority. In our assessment this leaves intent intact; it excuses only if the mistake was unavoidable (Section 17 StGB), and that is rare for a professional who must know his duty of confidentiality.[49] Example: the diagnosis is redacted, but the entry “10 sessions of psychotherapy” remains in the invoice. It too is treatment data and allows conclusions about the kind of illness. If the doctor consciously left it in because he considered it harmless, that is a mistake about the limit of his authority and not an oversight.

May I tell my own lawyer more than I consider necessary?

Fact. The lawyer you instruct for your defence is himself a holder of professional secrets (Section 203(1) no. 3 StGB)[1] and bound to confidentiality (Section 43a(2) BRAO).[2] Giving him information is therefore not a disclosure to an uninvolved third party but serves advice and defence. That does not make the disclosure unlimited: it is authorised only insofar as it is necessary for pursuing the claim (see immediately below).

Question: How far may the information to one’s own lawyer go? What is established is the standard of necessity: disclosure to persons who assist in the professional activity is permissible only insofar as necessary for their involvement (Section 203(3) sentence 2 StGB),[32] and the BGH expressly granted the doctor the help of a lawyer in the fee lawsuit (BGH, 23.06.1993 – VIII ZR 226/92).[9] It follows, in our assessment: only what is necessary for enforcement may be communicated to one’s own lawyer; everything else is to be redacted beforehand. Practitioners’ recommendation for doctors: send a reminder first, point out in it the possible passing on, and pass on only the necessary data.[105] Persons who assist have been criminally liable themselves for unauthorised disclosure since 2017 (Section 203(4) sentence 1 StGB).[32] Whether the instructed trial lawyer is an “other assisting person” within the meaning of Section 203(3) StGB or a third party with his own mandate, we treat below as an open question.

Section 203(4) sentence 2 no. 1 StGB. Under this provision a person who, as an assisting person, discloses without authorisation is also punishable; according to the second clause this does “not apply to other assisting persons who are themselves a person named in paragraphs 1 or 2”.[32] In our assessment this exception relieves the doctor only of the duty to bind the lawyer specifically to confidentiality; for this we rely on the legislative materials, which consider an obligation unnecessary where the assisting person “is already bound by law, i.e. under paragraphs 1 and 2, to secrecy” (BT-Drs. 18/11936, p. 29).[107] The lawyer’s duty of confidentiality follows from Section 203(1) no. 3 StGB and Section 43a(2) BRAO.[1][2]

Criminal liability of the doctor. “The doctor is off the hook” applies only insofar as the disclosure is necessary. The legislative materials say expressly: “In addition, the bearer of professional secrets is himself liable to punishment for a disclosure exceeding the necessary extent.” (BT-Drs. 18/11936, p. 28).[107]

Redacting is mandatory. What plays no role for the claim, the doctor must redact before passing the material to his own lawyer; redacting is not a mere option. If he passes on more, that is in our assessment his own unauthorised disclosure, and the doctor is the perpetrator (Section 203(1) StGB).[32] That the lawyer is himself bound by confidentiality changes nothing: the doctor’s authority extends only as far as necessity (cf. the legislative materials on assisting persons).[107]

Example: payment order procedure. For the application for a payment order, a description of the claim stating the performance demanded is sufficient (Section 690(1) no. 3 ZPO),[100] that is, the debtor and the invoice with date and amount. The lawyer does not need diagnoses and treatment details for that. If the doctor nevertheless gives him the unredacted file, that is in our assessment more than necessary. Documents that the lawyer needs to examine the claim and to substantiate it after an objection, however, the doctor may give him already now.

Open question: Is the trial lawyer an “assisting person” or a third party with his own mandate? The legislative materials define the other assisting person as someone who assists in the professional activity of the bearer of professional secrets (BT-Drs. 18/11936, p. 22); the examples given there do not mention a trial lawyer.[109] The second clause, by contrast, presupposes that bearers of professional secrets can also be assisting persons.[32] We have found no decision or commentary passage that classifies precisely the trial lawyer instructed by the doctor; a commentary (for example on Section 203 StGB) was not accessible to us. In our assessment the classification changes little in the result: in both cases the standard of necessity applies, and the lawyer is bound to confidentiality in his own right.

Assisting persons and the fee lawsuit compared. As regards the helpers working for him professionally and the persons being trained for the profession (trainees), there is no disclosure at all (Section 203(3) sentence 1 StGB); that sentence contains no necessity limit and thus no limit on quantity.[32] As regards other assisting persons, secrets may be disclosed only insofar as this is necessary for making use of their activity (Section 203(3) sentence 2 StGB).[32] In the fee lawsuit there is an additional difference: with an assisting person the secret stays within the circle of those bound to confidentiality. In the fee lawsuit, by contrast, it is meant to go out, to the court and into the hearing. In our assessment this is justified only because the doctor may enforce his own interest in the fee (BGH, 23.06.1993 – VIII ZR 226/92),[9] and therefore only as far as necessary for that. That the lawyer is himself bound by confidentiality changes nothing, because he is meant to present the case. Whether the lawyer is an “assisting person” at all in the doctor’s own fee matter we leave open; we have not yet checked the commentary and will do so for the second article.

Perpetrator, instigator, accessory: Whoever brings the doctor to pass material on, or helps with it, may participate under the general rules (Sections 26, 27 StGB).[110] Both forms presuppose an intentionally committed unlawful act of another. If the lawyer submits only what the claim needs, that is authorised; then there is no act in which the doctor could participate. Participation becomes punishable only if the lawyer presents more than necessary and the doctor wants exactly that or knowingly makes it possible. Usually, however, the doctor is himself the perpetrator already through the excessive disclosure (see above); participation then does not matter. We deal with further points in the second article.

BRAO and BORA: each with its own duties and exceptions. Section 43a(2) BRAO is the lawyer’s statutory duty of confidentiality. It covers everything that became known to him in the exercise of his profession and does not apply to facts that are obvious or by their significance need no secrecy (sentences 1 to 3).[2] Section 2 BORA is statutory-instrument law, regulates the duty and right of confidentiality and contains its own exceptions: there is no breach insofar as statute or law demands or permits an exception (paragraph 3), and in the case of consent, of protecting legitimate interests – for instance to enforce or defend claims arising from the mandate or to defend oneself in one’s own case – and of internal firm procedures (paragraph 4(b)).[3] Both sets of rules therefore determine not only competence and supervision but also their own authorities. As statutory-instrument law, however, Section 2 BORA cannot create criminal-law authority under Section 203 StGB; the assessment remains two-stage (see above).

May I report to my professional liability insurer?

Yes, insofar as this is necessary to defend against the claim. The notification to the insurer is not a voluntary disclosure but an obligation (Obliegenheit): facts that may give rise to liability towards a third party must be notified to the insurer within one week; if the third party asserts his claim, the week runs from that moment (Section 104(1) VVG).[50] Under data-protection law, special categories of personal data, such as health data, may also be processed where this is necessary “for the establishment, exercise or defence of legal claims” (Art. 9(2)(f) GDPR).[51] Assessment: anyone who makes a claim against a professional cannot prevent him from defending himself with the help of his insurer. Here too: only what is necessary and only vis-à-vis the insurer and the instructed lawyer.

Fact – obligations after the insured event. After the insured event has occurred, the insurer may demand any information necessary to establish the insured event or the extent of its duty to perform (Section 31(1) VVG). If you breach a contractually agreed obligation, the insurer is released from its duty to perform in the case of intent; in the case of gross negligence it may reduce its performance according to the seriousness of the fault, and you bear the burden of proving the absence of gross negligence. If the breach was not causal for the occurrence or establishment of the insured event or for the extent of performance, the insurer remains obliged to perform – but not in the case of fraudulent intent (Section 28(2), (3) VVG). For information and disclosure obligations after the insured event, release from the duty to perform requires a separate notice by the insurer in text form about this legal consequence (Section 28(4) VVG).[52]

Fact – model conditions. The non-binding model conditions of the GDV (German Insurance Association) for professional indemnity insurance against financial loss (AVB VH, as of May 2025) provide in substance as follows:[53]

• B3-3.2.1: You must, where possible, take care to avert and reduce the loss, follow the insurer’s instructions as far as reasonable and obtain instructions where circumstances permit.
• B3-3.2.2(b): You must give the insurer “detailed and truthful loss reports” and support it in investigating and settling the loss; “All circumstances that in the insurer’s view are important for handling the loss must be communicated and all documents requested for this must be submitted.”
• B3-3.2.2(e): If a liability claim is asserted in court, you leave the conduct of the proceedings to the insurer; it instructs a lawyer in the policyholder’s name, to whom you must give a power of attorney and all necessary information and make the requested documents available.
• B3-3.3.1 to B3-3.3.3: Intent leads to release from the duty to perform, gross negligence to a reduction. For an information or disclosure obligation after the insured event, release occurs only if the insurer has previously pointed out this legal consequence by separate notice in text form (B3-3.3.2). The insurer remains obliged to perform if you prove that you did not act with gross negligence or that the breach was not causal; this does not apply in the case of fraudulent intent (B3-3.3.3).

Note. These are non-binding GDV models for optional use. What matters are the insurance certificate and the terms of your own contract; they may differ.

Assessment – conflict between confidentiality and the insurance obligation. Anyone who withholds relevant circumstances because he himself considers them unimportant risks his insurance cover: under the model conditions, what matters is what in the insurer’s view is important for handling the loss. Whether there is a reduction or release from performance depends on fault, instruction in text form and causation. Conversely, the insurer’s question does not automatically justify the answer: a contractual obligation does not by itself create authority within the meaning of Section 203 StGB. The yardstick remains necessity for settlement and for defence against the claim. Insofar as it is met, a justification under the principles set out above comes into consideration; Art. 9(2)(f) GDPR in addition covers the processing of the data, not the disclosure (see below on the GDPR). On the basis for disclosure to the insurer, the BGH held: Section 213 VVG does not preclude general releases from confidentiality, but the insurer regularly may not demand them from the insured in the course of examining the claim, and cooperation is owed only for the collection relevant to the examination of the claim (BGH, 05.07.2017 – IV ZR 121/15, paras. 20–26).[54]

Practical tip:

• Ask: Where the necessity of information is doubtful, ask the insurer in writing what it needs it for.
• Black out: Black out or pseudonymise what is not needed for settlement (such as names, addresses, health data).
• Consent: Ask the client for consent insofar as that does not endanger the defence; it is the cleanest route.
• Document: Record what you communicated to whom and why, and observe the one-week deadline (Section 104(1) VVG; B3-3.2.2(a)).

Do the GDPR and the Trade Secrets Act also apply?

Section 203 StGB is not the only rule that protects client information. Two further sets of rules are often confused or overlooked.

GDPR. The General Data Protection Regulation applies to the wholly or partly automated processing of personal data and to non-automated processing where the data are stored or are to be stored in a filing system (Art. 2(1) GDPR).[55] It therefore attaches to data processing. If you keep client data electronically – the rule for files, e-mail and logbooks – the GDPR applies, and the criminal-law duty of confidentiality continues unchanged alongside it. Processing and disclosure must be kept apart, as must data protection and the duty of confidentiality: the GDPR governs whether data may be processed, Section 203 StGB whether a secret may be disclosed. A permission under Art. 9(2)(f) GDPR (processing for the establishment, exercise or defence of legal claims) does not by itself make the transfer an authorised disclosure; conversely, criminal-law authority does not replace the basis under data-protection law. The Federal Medical Association and KBV also treat the two separately (nos. 2.4.4.2 and 3.4.1).[7]

Trade Secrets Act. The GeschGehG protects information that is secret, has commercial value and is protected by reasonable secrecy measures (Section 2 no. 1 GeschGehG). Obtaining, using and disclosing are prohibited under the conditions of Section 4; Section 5 contains exceptions, for instance for uncovering unlawful acts in the public interest; Section 23 contains the penal provision.[56] On the view taken here, this is an additional layer of protection, for instance for the client’s trade secrets. It does not replace Section 203 StGB and presupposes that the holder of the secret takes reasonable protective measures.

Must I testify as a witness?

In criminal proceedings, lawyers, tax advisers and doctors may refuse to testify; the right lapses if they have been released from confidentiality (Section 53(1) sentence 1 no. 3, (2) sentence 1 StPO).[57] In civil proceedings the same applies to persons who “by virtue of their office, status or trade” have been entrusted with facts whose secrecy is required; there too the right ends with the release (Section 383(1) no. 6, Section 385(2) ZPO).[28] The release lies with the person whose secret it is; he can grant, refuse or limit it. Anyone who files a criminal report himself and later claims silence as a witness exposes himself to the charge of contradiction; how far the right to refuse then extends must be clarified in the individual case.

Important: Section 53 StPO and Section 203 StGB do not cover the same group of persons. A veterinarian, for example, is named in Section 203(1) no. 1 StGB but not in Section 53(1) sentence 1 StPO; in criminal proceedings he has no right to refuse to testify.[57] Anyone named only in Section 203 StGB is authorised to testify upon a witness summons: the duty to testify covers the disclosure. Anyone named in both provisions, such as doctors and lawyers, is not authorised by the summons alone; a release is needed here.

The police can also summon you. Since 24.08.2017, witnesses are obliged to follow a police summons and to testify if it is based on an instruction from the public prosecutor’s office (Section 163(3) StPO).[58] For a police summons, therefore, ask about the public prosecutor’s instruction.

Section 160a StPO regulates investigative measures directed against holders of professional secrets and, depending on the profession, attaches to them prohibitions on use or a weighing of interests (paragraphs 1 and 2).[59] If the person whose secret it is has revoked the release, the doctor’s testimony may according to the BGH not be used (BGHSt 42, 73, on Section 53 StPO).[27] That does not change the need for caution: never rely on the mere assertion.

Search and seizure. Counter-position: in a search the file must be handed over immediately. Question: Does that apply to every role? Answer by role: if the professional is himself the accused, Section 97 StPO does not protect the documents: under Section 97(2) sentence 2 StPO the exemption from seizure does not apply if the person entitled to refuse to testify is suspected of participation; the BVerfG stated that the protection of the relationship of trust between doctor and patient is not aimed at shielding the doctor from prosecution measures where he is suspected of an offence committed in the course of his professional activity (BVerfG, 29.07.2002 – 2 BvR 708/02, para. 5).[60][61] If, on the other hand, the patient is the accused and the doctor only a witness, documents in the doctor’s custody are in principle not subject to seizure under Section 97(1) nos. 1–3, (2) sentence 1 StPO, and coercive and administrative measures against persons entitled to refuse to testify are excluded (Section 95(2) sentence 2 StPO); according to BVerfGE 32, 373, seizure of the patient file in principle violates the patient’s fundamental right.[60][61] Question: Is voluntary handover without a seizure order covered by Section 203 StGB? What is established is that seizure and coercive measures are bound to the conditions of Sections 95 and 97 StPO; authority to disclose arises from a release or a justification, not from the authority’s mere request. Recommendation: hand over documents only upon a seizure order or after a release.

Patient as witness (fact). The patient is obliged as a witness to appear and to testify (Sections 48, 51, 70 StPO); he may remain silent only under Section 55 StPO, insofar as he would incriminate himself.[60] The duty of confidentiality binds the professional, not the person whose secret it is.

Secrets of third parties. The authority to protect one’s own interests supports disclosure vis-à-vis the opposing party who himself triggered the dispute. It does not without more support the disclosure of secrets of other clients: anyone who wants to name another client as a witness needs that client’s release; without it, only the weighing under Section 34 StGB remains.[8] A white lie is ruled out. If the court asks whether the contact was professional or private, the party’s duty of truthfulness (Section 138(1) ZPO)[62] forbids the answer “private” if it was professional; anyone who refuses to answer thereby hints at the mandate (assessment). In practice this means: obtain the release before naming the witness. The client himself may speak as a witness about his own mandate; the duty of confidentiality binds the professional, not the person whose secret it is.

What applies in chamber and professional-court proceedings?

Lawyers must give the chamber board information in supervisory and complaint matters. This does not apply if and insofar as they would thereby breach their confidentiality or expose themselves to the risk of being prosecuted for a criminal offence, an administrative offence or a breach of professional duty, and they invoke this (Section 56(1) BRAO). Culpable breaches of duty are punished in lawyers’ disciplinary proceedings (Section 113(1) BRAO).[63] For tax advisers, the chamber board may issue a reprimand if the guilt is minor; the member must be heard beforehand (Section 81(1), (4) StBerG).[64] For doctors, the procedure follows the health professions or chamber act of the respective state, such as the Heilberufe-Kammergesetz in Bavaria or the Heilberufsgesetz in North Rhine-Westphalia. Supervision is exercised by the state medical chamber; culpable breaches are punished by the professional courts for the health professions, in Bavaria at the regional courts of Munich I and Nuremberg-Fürth, in North Rhine-Westphalia at the administrative courts of Cologne and Münster.[65] The details differ from state to state.

Medical professional-court proceedings. In Bavaria, the Code of Criminal Procedure applies mutatis mutandis to professional-court proceedings (Art. 98 HKaG).[66]

Tax office: where confidentiality practically ends

Vis-à-vis the tax office, professional secrecy is protected least. Assessment up front: not because there were no right to confidentiality there, but because there you must prove your own deductions – and the proof often requires exactly the details you are supposed to protect.

• Fact – refusal to give information: In tax assessment proceedings, holders of professional secrets may refuse to give information about what was entrusted or became known to them in that capacity; the right lapses if the person whose secret it is has released them from confidentiality (Section 102(1) no. 3, (3) AO).[67]
• Fact – external audit: In an external audit, the tax authority may access digitally stored documents relevant for tax purposes (Section 147(6) AO).[68] Findings made in doing so about other persons may be used for their taxation (Section 194(3) AO; so-called control notifications).[69]
• Fact – proof obligations: Entertainment expenses are deductible only if, among other things, the participants are stated in writing (Section 4(5) sentence 1 no. 2 EStG).[70] Anyone who uses a vehicle for both business and private purposes either taxes the private use at a flat 1 % of the list price or proves it with a proper logbook (Section 6(1) no. 4 sentences 2, 3 EStG).[71]

Assessment: Professional secrecy ends in tax proceedings where your own proof begins. The right to silence protects against giving information about what was entrusted to you; it does not relieve you of documenting your own deductions. Unlike in the fee lawsuit against the client, where disclosure is limited to what is necessary (BGH, VIII ZR 226/92),[9] the issue here is your own proof vis-à-vis the tax authority, which is itself bound by tax secrecy (Section 30 AO).[72] Anyone who blacks out names bears the risk that the deduction or the logbook method fails. For entertainment expenses, the Federal Fiscal Court (BFH) did not recognise confidentiality as a ground for refusal and denied the deduction where details were missing (BFH, 26.02.2004 – IV R 50/01, paras. 19–24).[73] For the logbook, the customer visited must appear in the logbook itself, a later self-prepared list is not enough, and whether something different applies to holders of professional secrets has not been decided by the BFH (BFH, 01.03.2012 – VI R 33/10, paras. 12, 14, 15); according to its headnote, the Tax Court (FG) of Munich did not lower the requirements because of the doctor’s confidentiality (FG München, 20.07.2007 – 13 K 1877/04).[74]

Practical tip:

• Keep the logbook separate: Enter the date, route, a neutral purpose (“client appointment”) and a mandate number; the assignment of the number to the client is kept in a separate list that you produce only if needed. According to BFH, VI R 33/10, the separate list is risky because the partner visited must in principle appear in the logbook itself.[74]
• Entertainment: Name guests only with their consent; if it is missing, weigh the deduction against client protection.
• Separate data: Keep client data and tax-relevant data separate so that data access under Section 147(6) AO does not unintentionally capture mandate content.
• Objection: If the tax office objects to blacked-out entries, lodge an objection against the assessment within one month of notification (Section 355(1) AO).[75]

Key points

• Check two levels: criminal law (Section 203 StGB) and professional law. Defensible under professional law does not mean authorised under criminal law.
• Order: release – professional-law clause – justification.
• Only as much as necessary, only vis-à-vis the competent body, only in the proceedings; record the weighing in writing.
• Doctors: no clause for own interests in the professional code; according to BÄK/KBV, however, they may disclose to protect legitimate interests (fee, defence, criminal report). Section 34 StGB is only a subordinate point; the BGH bases the doctor’s own fee lawsuit on the protection of legitimate interests of his own, and the OLG Brandenburg weighs the interests within the framework of Section 57 StBerG.
• Own lawyer: he is himself a holder of professional secrets; giving him information is not disclosure to uninvolved persons.
• Insurer: observe the obligations (Sections 28, 31, 104 VVG; model AVB B3-3); disclose only insofar as necessary for settlement.
• Fee: Own lawsuit is permitted (BGH VIII ZR 226/92; OLG Brandenburg 7 U 216/00), only with what is necessary. Assignment or debt collection to persons outside the professions only with specific consent; revocation takes effect for the future. Refusal or revocation is not an automatic presumption of evidence.
• Relatives, heirs, guardians, social welfare office: the person who is to pay is not automatically the person whose secret it is. Parents are regularly contracting parties; spouses are co-bound under Section 1357 BGB, except where they live apart or other circumstances apply; after death the declared or presumed will of the patient decides; for a person under guardianship, legal capacity and reservation of consent matter; vis-à-vis the social welfare office the emergency-helper rule applies, with an application for reimbursement of costs.

Does an expert have a duty of confidentiality? Publicly appointed experts and actuaries

What was said above applies correspondingly to authorities, necessity and order of assessment, insofar as Section 203 StGB applies at all. Only the differences are set out here.

Are experts and actuaries subject to confidentiality under Section 203 StGB?

The wording is narrower than often assumed. Paragraph 2 no. 5 covers publicly appointed experts only if they have been “formally obliged by law to conscientiously perform their duties”.[76] The oath under Section 36(1) sentence 2 GewO may qualify;[77] whether in the individual case it meets the requirement of a formal obligation by law is a question of interpretation that must be clarified before any disclosure. The profession of actuary is not named in Section 203 StGB. Paragraph 1 no. 7 comes into consideration: “members of a private health, accident or life insurance undertaking” (and certain billing agencies). That applies to an actuary only if he works at such an undertaking, not as a freelance expert.[76] Anyone who holds both roles checks each separately. Outside Section 203 StGB, a duty of confidentiality may arise from contract, statutes or expert regulations.

What duties follow from public appointment?

The publicly appointed expert is sworn to perform his tasks “independently, free of instructions, personally, conscientiously and impartially”.[77] The DIHK model expert regulations make this more specific (no influence that endangers credibility; strict neutrality). They provide for a basic duty to give an opinion also for private clients, but permit refusal for good cause, which must be declared without delay.[78] Anyone who receives instructions that touch his independence therefore first checks whether the engagement must be declined.

What may the appointing body (usually the IHK) demand?

The appointing body supervises the duties and may demand information. Under the model expert regulations, confidentiality does not extend to the notification and information duties towards the chamber; however, the information may be refused if it would expose the expert to the risk of criminal prosecution.[78] The regulations of the specific appointing body may differ and are to be consulted. It is advisable to ask the body in writing beforehand to what extent it expects information.

Court experts and a court confidentiality order

Fact. If the public is excluded, for instance because an important business or trade secret is discussed whose public discussion would violate overriding interests worthy of protection (Section 172 no. 2 GVG), the court may impose on those present a duty to keep secret facts they learn through the hearing or through an official document relating to the matter (Section 174(3) GVG). The order must be included in the record of the hearing; an appeal lies against it, which has no suspensive effect.[79] Anyone who, contrary to such a duty of confidentiality imposed by the court on the basis of a statute, discloses without authorisation facts that became known to him through a non-public court hearing or through an official document relating to the matter is punished under Section 353d no. 2 StGB with imprisonment of up to one year or a fine.[80]

Assessment. The duty attaches to those present. On the view taken here, it therefore affects parties, lawyers and court experts present at the hearing alike – also the expert who is not publicly appointed and the freelance actuary, who are not covered by Section 203 StGB (see above). This is typical in proceedings over premium adjustments in private health insurance, in which the insurer’s calculation documents are discussed.

Assessment. Because the duty relates to the persons present, it does not without more cover passing information on to others: not to representatives or colleagues within one’s own firm and not to a private expert whom a party wants to bring in. If the circle is to be extended, a decision of the court is needed on this view. That is stricter than confidentiality under Section 203 StGB and Section 43a(2) BRAO, which include employees and other assisting persons under certain conditions (Section 203(3) StGB;[81] Section 43a(2) sentences 4 to 6 BRAO).[2] Question: How far does an order under Section 174(3) GVG reach? What is established: the obligation may also be imposed on individual persons present only, the court determines scope and addressees at its discretion, and only facts that become known through the hearing or an official document are covered (BGH, 14.10.2020 – IV ZB 4/20, headnote 2, paras. 21, 34).[82] Recommendation: have the passing on to third parties, such as a private expert, regulated in advance by the court in its order.

Practical tip (assessment): Before passing on any procedural documents to a private expert, clarify whether a confidentiality order has been made and whom it covers. If it has, have the court extend the circle before documents leave the circle of those obliged.

What applies vis-à-vis a private professional association?

Many professional and expert associations are registered associations (eingetragene Vereine). A fictitious example: after a client’s complaint, the association opens proceedings against its member and demands a statement. Unlike with a chamber or appointing body, the constitution of an association is determined by its statutes (Section 25 BGB).[83] Membership is voluntary; anyone who joins submits to the association’s rules, and these may be stricter than the law. Association measures are subject to review by the state courts;[84] the ordinary legal route is open – even if the statutes provide for an “association court”; only a genuine arbitral tribunal is to be treated differently (see below). Four points to check:

• Release: Clarify whether a release exists, to what extent and vis-à-vis whom it applies. If you do not have one, request it in writing.
• Stricter association rules: An association may bind its members more strongly than the law and, for example, require silence even where Section 203 StGB or a professional code would permit disclosure. Anyone who violates this risks association-law measures, even if the disclosure was authorised under criminal law.
• Limits: Statutory duties take precedence over association rules, for instance the duty to testify as a witness. On the view taken here, an association rule cannot cut off one’s own legal advice and the route to the courts. It is different only with a genuine arbitral tribunal (see below).
• Practice: Until a court has decided, the association will treat its rules as effective. Request the release in writing, state reservations expressly and record every objection with its date.

Example: actuary and the DAV. The professional rules of the German Actuarial Association (Deutsche Aktuarvereinigung, DAV) forbid disclosing confidential information from professional practice to other parties “unless the client or employer has released them from their duty of confidentiality or disclosure is required by legal provisions” (no. 7).[85] Under this, the client or employer can release – not necessarily the person whose data are concerned, such as the insured person. The decision on the release therefore lies with the employer or client. The professional rules are association law and bind members who submit to the DAV’s disciplinary rules (no. 9.3). Unlike with the chamber professions, the obligation thus rests not on statute but on membership. Assessment: after leaving, only what follows from statute (Section 203 StGB, insofar as applicable; GDPR) or contract remains. The same applies where membership ends with death.

Association court or arbitral tribunal? An “association court” under the statutes is not a state court. A genuine arbitral tribunal within the meaning of Sections 1029 et seq. ZPO presupposes an arbitration agreement (Sections 1029, 1031 ZPO); its award has between the parties the effect of a final court judgment (Section 1055 ZPO), and setting aside is possible only to a limited extent (Section 1059 ZPO).[86] Check the statutes therefore: only if they provide for a genuine arbitral tribunal and you have effectively submitted to it is the state legal route closed.

Key points

• Experts fall under Section 203 StGB only if formally obliged; actuaries only if they work at an insurance undertaking.
• If instructions touch independence, first check whether the engagement must be declined.
• Vis-à-vis the appointing body there is a duty to provide information; it may be refused where there is a risk of one’s own prosecution.
• Association rules may be stricter than the law; statutory duties, legal advice and the legal route remain unaffected.
• A court confidentiality order (Section 174(3) GVG) binds all present, including persons not covered by Section 203 StGB; breach: Section 353d no. 2 StGB.

Conclusion

The exceptions to confidentiality for lawyers, tax advisers and doctors are not a blank cheque. Anyone defending himself against his own client first checks a release, then the clause of his professional code and finally a justification, in each case under both criminal law and professional law. The professional may sue for his own fee; the BGH bases this on the protection of own legitimate interests, not on Section 34 StGB, the OLG Brandenburg weighs the interests for the tax adviser within the framework of Section 57 StBerG, and both limit the presentation to what is necessary. Assignment and debt collection to persons outside the professions require specific consent. Under professional law, doctors have no clause for own interests but, according to the guidance of the Federal Medical Association and KBV, may disclose to protect legitimate interests. For actuaries and experts it is already doubtful whether Section 203 StGB applies. Vis-à-vis the tax office, the right to refuse information protects what was entrusted but does not relieve you of proving your own deductions. In every case: only what is necessary, only vis-à-vis the competent body, only in the proceedings, and record everything in writing.

Frequently asked questions

May a lawyer disclose client secrets in order to defend himself against a complaint?

Yes, insofar as necessary. Section 2(4)(b) BORA expressly names defence in one’s own case and the defence of claims arising from the mandate. The clause does not, however, replace the examination of whether the disclosure is also authorised under Section 203 StGB, and it permits information only to the competent body.

May I sue for my fee despite confidentiality?

Yes. The BGH described court enforcement of a fee claim, from the standpoint of legitimately protecting one’s own interests, as “undoubtedly permitted”; the OLG Brandenburg took the same view in the result for the tax adviser, weighing the interests within the framework of Section 57 StBerG. Only what is necessary for enforcement is presented. An assignment to a commercial billing agency or a debt-collection company, by contrast, needs the specific consent of the client or patient, except for assignments among members of the professions that professional law permits.

Does the same exception apply to doctors as to lawyers and tax advisers?

Not expressly. The medical model professional code knows only release and disclosure to protect a higher-ranking legal interest, but no clause for own interests. The guidance of the Federal Medical Association and KBV (as of 01.10.2025), however, recognises that doctors may disclose to protect legitimate interests, for example for the fee claim, defence against prosecution or a criminal report. They name no legal basis for this. For the doctor’s fee lawsuit, the BGH expressly approved disclosure to the extent necessary.

May I defend myself against my client’s allegations vis-à-vis the press?

You may not disclose secrets to the press, because the authority reaches only as far as the competent body in the proceedings. Public relations without disclosing protected content is to be kept separate from this and should be coordinated with your lawyer.

Is an actuary subject to confidentiality under Section 203 StGB?

Only if he works at an undertaking of private health, accident or life insurance (Section 203(1) no. 7 StGB). As a freelance expert he is not covered there. A duty of confidentiality can then, however, arise from contract or statutes.

Must a lawyer give the chamber information on a complaint?

In principle yes, under Section 56(1) BRAO. The duty lapses if and insofar as he would thereby breach his confidentiality or expose himself to the risk of prosecution for a criminal offence, an administrative offence or a breach of professional duty, and he invokes this.

Further reading: The mandate under legal-services law, Attorney liability, Tax adviser liability, Experts, Litigation PR. The practical steps are covered by the second article in this series: Chamber Complaint, Criminal Report, Threat: What Professionals Should Do Now (10 Steps).

As of: 6 November 2026. This article does not replace advice in an individual case.

Authors:

Dipl.-Math. Peter A. Schramm, expert in actuarial mathematics, Actuary DAV, publicly appointed and sworn by the IHK Frankfurt am Main (Chamber of Industry and Commerce) for actuarial mathematics in private health insurance (www.pkv-gutachter.de)

Dr. Johannes Fiala, PhD, RA (German attorney at law), MBA Financial Services (Univ.), MM (Univ.), Certified Financial and Investment Adviser (A.F.A.), Bankkaufmann (qualified bank clerk) (www.fiala.de)

Rechtsanwalt Dr. Johannes Fiala and the law firm, with a focus on professional law, professional liability and the defence of professionals in Munich, advise lawyers, tax advisers, doctors, actuaries and experts in conflicts with their own client, from assessing the authority to disclose through the statement to the chamber or appointing body to civil-law and criminal-law steps. Dr. Fiala has published extensively on questions of professional law and professional liability. Please contact the firm without obligation to discuss your individual situation in an initial consultation.

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