The Hand File of the Tax Advisor, Auditor and Lawyer (Part II)

Outline:

In the last issue:

1. hand file as a personal duty of the professional

2. costs

3. ownership of the file

4. entitlement to the hand file

In this issue:

5. right of access to the file

6. information on the inventory of the reference file

7. conflict with confidentiality interests

8. seizure, submission of the case file, record-keeping obligations

9. compulsory activity

10. sale of the firm

11. death/resignation of the professional

12. document destruction

13. summary

5. right of access to the file

5.1 Scope: Gem. According to § 666 of the German Civil Code (BGB), the professional is obliged to give the client the necessary information, to provide information on the status of the transaction upon request and to render an account after the execution of the assignment. This contractual claim is the basis for the client’s right to inspect the case files.

In doing so, it regularly also extends to those parts of the file which are not or no longer to be surrendered in accordance with § 667 BGB. The only exceptions here are the professional’s notes on personal impressions and confidentially researched information (see above). Even if the client has already received copies or originals of documents, he may be entitled to inspect them. For this purpose, he must substantiate that he is no longer in possession of these documents, i.e. that they have been lost by the client, for example.

In good faith, the professional cannot oppose this request of the client, unless the effort that would have to be made bears no relation to the interest pursued by the client. This duty of loyalty arising from the terminated mandate relationship is not subject to any fixed time limits; restrictions on the right to information can only arise from the circumstances of the individual case, in particular according to good faith (§ 242 BGB)1. The legal limit is therefore the prohibition of harassment and the inadmissible exercise of rights, §§ 226, 242 BGB.

The claim from § 666 BGB is dispositive. The obligation to inspect the case files can therefore be modified or even waived by contract, even by implication. The exemption shall be invalid if it is contrary to good faith or if justified doubts about the reliability of the agent subsequently arise.

Since the ratio legis of § 666 BGB is the protection of the client against the agent in the case of an unfaithful damage, contractual exclusions of information will not be enforceable in the case of liability claims of the client against the professional. Thus, in general, inspection cannot be denied. In addition to § 666 BGB, the client may also invoke §§ 242 , 810 f. BGB. However, a different assessment could result if it is a matter of investigating the advisor for claims for damages directed against him: In such a case, the (former) client is no longer worthy of protection.

5.2 Practical implementation: Reference is made here to the above remarks on impossibility. Hand files that have been lost, for example, during a move (or “as usual” the patient file on a failed operation in the corridors of the hospital) can no longer be the subject of a right of inspection because of the impossibility that has occurred.

5.3 Payment of costs and entitlement to copies: The consultant can make the inspection dependent on the payment of an appropriate advance as security due to his expenses in connection, §§ 273 f., 670 f. analogously, 811 para. 2 sentence 2 BGB. This right also exists in the case of a contractual claim to inspection arising from the consultancy contract pursuant to § 666 BGB4. Costs are not only transport, packaging, postage, but also the office costs of the professional: A moderate use of the fee schedule in the context of a cost estimate according to § 287 ZPO would only be conceivable in the alternative, because in principle costs are to be specified concretely, § 249 BGB. Conceptually excluded, however, is the approach of a lost profit according to the rules on the use of time of the entrepreneur or his employees. The consultant is not obliged to make copies – but in individual cases must allow the creditor to make copies or notes.

5.4 Dispatch and delivery of files: Very rarely (e.g. in the case of hostility between the parties, illness), there may be a right to dispatch of the files. Only if an intact return is ensured, a claim for temporary handing over to the client or his (new) advisor can be assumed in case of an important reason (e.g. very extensive documents)8. For the rest, there is – in the absence of a statutory provision – also no “collegial” claim to the transmission of files to professionals for inspection.

6. information about the inventory of the file: Since the hand file is considered to be an “epitome of property” within the meaning of Section 260 of the Civil Code, the aforementioned provision provides the client with the possibility of requesting information about the inventory of the hand files. This right to information is also dispositive and can be contractually waived. The obligation to provide information, however, only relates to the information required under Section 50 para. 4 BRAO; Section 66 para. 2 StBerG, i.e. documents which the professional has received in the course of his work from or for the client, but not correspondence between client and agent10. If there is reason to believe that the information provided by the professional has not been prepared with the necessary care, the professional shall, pursuant to section 260 subs. 2 BGB to make an affidavit in accordance with the provisions of § 261 BGB. It does not satisfy the requirements for the duty to swear an oath if the professional has previously refused to provide information or submits supporting documents late.

However, a reason for providing an assurance may be if the professional has tried by all means to prevent the provision of information13. The request for information must always relate to a specific file of a specific mandate; there is no general right to be sworn in.

7. conflict with confidentiality interests

7.1 Risk of self-incrimination for a criminal offence: In the case of a client’s right to information or surrender, it is irrelevant whether the disclosure of his files would expose the professional to the risk of having to incriminate himself for a criminal offence14. Excluding such cases from the obligation to provide information circumvents the protective purpose of the norm, namely the protection of the client from damage by the mandated professional. According to the BGH, the protection of the client has priority in this respect.

7.2 Professional secrecy: The duty of confidentiality serves exclusively the client as the “master of the secret” and not the professional’s own interest in secrecy. The professional’s confidentiality is regularly at the disposition of the “owner of the secret”, who can release him from the obligation of confidentiality at any time and not merely for the purpose of giving evidence to the judiciary or in court. Thus, a client’s right to disclosure or right to information cannot be suspended by the professional’s duty of confidentiality.

7.3 Interest in secrecy in the case of confidential background information: However, a professional’s interest in secrecy vis-à-vis his client that falls directly within the scope of protection of Art. 12 GG may exist in documents that contain personal impressions or confidential background information. Such records need not be disclosed by the professional.

7.4 Personal secrecy interests of the board members involved in meetings: If the client is a legal entity, the question arises as to whether the disclosure or inspection of the case files could violate personal secrecy interests of the board members of the legal entity involved in the meetings with the professional. The direct protective effect of the duty of confidentiality regularly unfolds only vis-à-vis the client, the legal person. In this case, the members of the executive bodies are only third parties outside the mandate relationship; therefore, a claim to surrender or inspection does not collide with any personal secrecy interests of the members of the executive bodies.

7.5 Compensation for damages against the professional: Where the (former) client requests information or access to the file only in order to justify his own claims for damages against the professional, the right to access or to submit an invoice to the client ends.

8. seizure, submission of the case file, record-keeping obligationsIf a professional voluntarily hands over or makes available to a third party the hand file or parts of the hand file without the knowledge and consent of his client, he violates his duty of confidentiality (Section 43a (2) sentence 1 BRAO; Section 57 StBerG) and commits a betrayal of secrets within the meaning of Section 203 StGB. In the case of voluntary surrender by the accused or by a person entitled to refuse to testify, there is no prohibition on the use of evidence.

If, for example, the defense counsel releases his file without being released from the duty of confidentiality, the subsequent objection is of no use. Any incriminating circumstances uncovered from the files may be used against the accused. An exception exists only if, for example, a relative entitled to refuse to testify was not expressly informed of the prohibition of seizure and was therefore not aware of the significance of his statement18. The defense counsel is obliged to instruct a relative entitled to refuse to testify about the prohibition of seizure and exploitation. If necessary, the professional is therefore required to make use of the available legal remedies and application options, in particular the appeal, the request for a stay until the appeal decision, the application for a provisional suspension of execution, the objection and the application for a judicial decision.

The prohibitions of seizure are regulated in § 97 StPO. The case files shall be kept within the limits of Section 97 para. 2 StPO par excellence exempt from seizure. In the event of a seizure by the police or tax investigation, it is therefore advisable to first ensure that the searching officers note in the search and seizure report that the items were seized and not voluntarily handed over. If only the content of the statement is important in the case of documents and if these are used by the investigating officers themselves for reasons that are worthy of recognition, copies are to be made available by the investigating officers or copying is to be permitted.

Often, excerpted copies from the case files are sufficient to meet the concerns of the investigating officers, so that they can remain with the professional. Seized file components should be photocopied – as far as possible – still before for reasons of proof of and for the Kanzlei. Subsequently, the hand file can be sealed by the professional or his staff together with the investigating officer, since only the public prosecutor, but not the investigating officer, is entitled to inspect the seized file (cf. Section 110 of the Code of Criminal Procedure). The separate sealing of file components which, in the opinion of the professional, are not subject to seizure (e.g. correspondence between the accused and the defence counsel) is absolutely advisable, as such documents must be submitted to the competent judge for examination of a prohibition of seizure without a review by the public prosecutor’s office.

If there is no internal separation of the file within the meaning of Section 97 of the Code of Criminal Procedure, the professional must regularly instruct his own staff repeatedly not only about the duty of confidentiality but also about the right to demand that the file be sealed: It is advisable to document this in the personnel file so that the professional is not later exposed to the accusation of his own unreliability due to inadequate law firm organisation. In practice, even in such cases, the investigating officer will try to form his own opinion as to whether sealing appears to be necessary by cross-reading. Registry staff can underline the seriousness of the request by copying the service card and taking their own minutes. Gem. Section 107 sentence 2 of the Code of Criminal Procedure, a list of the objects taken into custody or seized shall be given to the person concerned on request.

This should definitely be insisted upon by the law firm personnel as well. It is not uncommon for the nature and extent of the items seized to indicate what the law enforcement authorities intend to do in the end. In the context of seizure within pre-trial proceedings, the presence of a defense attorney may cause officers to exercise restraint. However, the defender must proceed with caution. If he interferes too much, action can be taken against him. This is because Section 164 of the Code of Criminal Procedure is also applicable to him. It should be noted that the search and seizure must be proportionate – even for those under § § 102 , 103 StPO. It is necessary to check that what is seized is covered by the seizure order so that only the right things are taken.

The seizure is not subject (§ 97 StPO):

– Correspondence between the accused client and the professional,

– Records kept by the professional of communications entrusted to him by the accused client or of other circumstances to which the right to refuse to testify extends,

– other items to which the right to refuse to testify extends (including medical reports).

The prohibition of seizure under § 97 of the Code of Criminal Procedure is directly linked to the right to refuse to testify under §§ 51, 53 of the Code of Criminal Procedure. The prohibition of seizure is linked to the right of the defence counsel to refuse to testify (§ 53 (1) sentence 2 StPO). Since the hand files often contain documents and records of the defense counsel which not only exonerate but also incriminate the defendant, the defendant will be advised not to release the defense counsel or advisor from his duty of confidentiality, otherwise the freedom from seizure will be waived. In doubtful cases, it is already better for the client from the criminal defence lawyer’s point of view not to release the tax adviser or lawyer from the duty of confidentiality in order to prevent the seizure.

Then also in any case the secrets resting in the area of the tax adviser or lawyer remain protected, which are not at all known to the person concerned, for example unknown critical notes of the adviser about his own client. It is clear from the enumeration of the objects exempt from seizure in § 97 of the Code of Criminal Procedure that only such documents are to remain exempt from seizure which originate from the special relationship of trust between counsel and client. However, this does not include notarial deeds, which by their very nature are intended for the knowledge of third parties. Vouchers, basic records and accounting documents which originate from the business sphere of the accused and have been handed over to a consultant for processing or safekeeping are seizable within the meaning of § 97 StPO.

Accounting documents given to the professional by the client are exempt from seizure only to the extent that they are equivalent to correspondence with the client, i.e. they are documents annotated by the professional for the purpose of analysis22. Such documents, which are not subject to seizure, must be filed under separate headings in the file or otherwise identified in order to avoid accidental disclosure of such parts of the file by Registry staff in the rush of a search:

Only in this way can the professional take organisational measures to counter any accusation of a deliberate breach of the professional duty of confidentiality from the outset. Notes: 1may be inhibited by performance The restrictions on seizure do not apply, however, if the persons entitled to refuse to testify are suspected of participation or of aiding and abetting, obstruction of justice or receiving stolen goods or if the objects in question were produced by a criminal offence or are used or intended for the commission of a criminal offence or derive from a criminal offence (section 97 subs. 3 third sentence Code of Criminal Procedure).

The custody of the defense counsel is not protected if he is suspected of participation or obstruction of justice. For these reasons, defense counsel must avoid even the slightest appearance of being in league with the defendant. His custody is not protected if he has in his possession objects which fall within the concept of instrument et producta sceleris or which derive from the offence (example: forged document). Particular caution is then also required if the client or a third party wishes to hand over to the defender objects that could be related to a criminal offence. The defender’s office or home are inconceivably unsuitable places to store such things. If the defence counsel has even the suspicion that they are connected with a criminal offence, he must refuse to receive them.

A popular distinction in practice concerns investigations by the tax investigation departmentWhile the latter get to see the counsel files from the time before the first seizure, at least in part (so-called pre-tax investigation file of the counsel), the counsel as defense counsel can normally be sure that the investigating authorities cannot inspect the counsel file newly created afterwards (so-called post-tax investigation file). This only changes when the investigating authorities learn that elements of the former file have found their way into the latter. The seizure of defense documents from the client is a particular issue that defense counsel must be aware of. According to the current legal situation, §§ 97 para. 1 , 53 para. 1 No. 2, 148 Code of Criminal Procedure, it follows that the correspondence (including attachments) and records of the client for the purpose of the defence that fall within the relationship of trust between client and defence counsel are free from seizure. However, this does not apply to correspondence with third parties (e.g. witnesses, experts) for the purpose of obtaining defence material, collected technical and scientific documents and also not with regard to witness reports and expert opinions.

Not subject to seizure within the meaning of Section 97 para. 1 StPO and therefore not to be made part of the case file are the records according to §§ 9 , 17 Money Laundering Act (GWG). The lack of protection of the criminal defence lawyer in this respect is probably not compatible with constitutional law. For the sake of completeness, we would like to remind you of the Artist’s Social Insurance Act (KSVG) and, for internationally active consultants, of the Foreign Trade and Payments Ordinance (AWV).

A special delicacy is the loss of files at the tax investigation or public prosecutor’s officeHere, according to the predominant opinion, the defense counsel should be obliged to cooperate in the reconstruction of the authority’s file, and according to one opinion even without limitation to the so-called official part, i.e. what was copied from the authority’s file26. While the professional may invoke the duty of confidentiality and/or the risk of his own criminal prosecution in the supervisory proceedings of the Bar27 , the professional – in the absence of a corresponding statutory restriction – has to submit his hand file to the court, for example, in advisory assistance cases in order to establish his credibility.

9. activity in accordance with duties: if a professional violates his professional duties, this can mean exclusion from the profession. This can also be done without previous criminal proceedings. The obligatory activity in a mandate can be conclusively proven with the hand file. A prerequisite for this is, of course, the documentation of all activities and deadlines there themselves.

Thus, all deadlines, including substantive legal deadlines, should be noted on a separate deadline sheet. It is also part of the professional’s duty to keep the client informed of the proceedings. This obligation can be fulfilled by sending copies to the client (see above under fulfilment). In this case, advisers should have the secretariat note that the document has been duly sent, with the date and a hand sign (if appropriate, on the back of the copy sent).

In this way, in addition to the outgoing mail book, the dutiful notification of the principal can be precisely traced. By observing these organisational subtleties, the dissatisfied client or the client who is unwilling to pay is deprived of the possibility of accusing the professional of inactivity. Law firms which computerise their pleadings and letters should keep copies of the outgoing original documents on file and, for reasons of evidential value, refrain from using only another computer printout as a supporting copy.

10. sale of the law firm: when selling the law firm to a colleague, it is essential to observe confidentiality. Thus, when negotiating the takeover of a law firm, it must not be possible to draw any conclusions about the clientele from the lists submitted. The handing over of file material may in principle only take place with the express agreement of the client. However, a professional may, without the consent of the client, assign the case to a colleague or trainee lawyer who has already been extensively involved with the case through his work in the firm. This approach does not violate § 203 para. 1 No. 3 StGB.

The practice transferor, on the other hand, is assured that the transferee will obtain the necessary documents elsewhere in order to reduce a turnover-related law firm purchase price: The practice buyer must let itself be handed over thus kollegialiter the hand file. It is sufficient if the person taking over the practice makes sure by means of the previous office’s time limit book (i.e. not the hand file) that all time limits are transferred to the time limit calendar of his own office.

11. death/resignation of the professional: for the protection of the clients and for the preservation of the profession, in case of withdrawal of the licence or after the death of a professional, an office liquidator is appointed, provided that there are still unfinished mandates in the office. The liquidator acts on his own responsibility, but in the interest, for the account and at the expense of the retired person (§ 55 The Hand File of the Tax Consultant, Auditor and Lawyer (Part II) DStR 1998 Issue 19 740 para. 3 BRAO, §§ 70 f. StBerG) and is obliged to provide information, to render account and to surrender in corresponding application of §§ 666 , 667 and 670 BGB.

The liquidator is entitled to take possession of all objects belonging to the firm, including the files. However, the owner always remains the retired professional or the heirs. Files older than five (lawyer) or seven (tax consultant) years can be destroyed. Files that have already been closed but are still subject to the retention obligation can be disposed of in accordance with the regulations on shortening the retention period or destroyed after the statutory period has expired. Current mandates must be continued by the liquidator. The retired professional or the heirs are responsible for the preservation of files. The heirs are thereby placed in the same position as the various professionals with regard to confidentiality. Under no circumstances may the files be made accessible to the public, but they must be properly stored or destroyed.

12) Destruction of files: Hand files should only be destroyed after they have been verified by a professional. In particular, it will have to be examined whether the obligation to surrender has been complied with, because it is not uncommon for old files to still contain original official decisions, titles of all kinds or documents. In practice, it is seldom observed that powers of attorney are to be returned to the client when they expire – there is no right of retention. In the case of computer data, destruction shall be effected by deletion. For reasons of due diligence alone, it is advisable to record the destruction – in particular by stating the date, place and content, so that it can be established later which file was destroyed and by whom. When in doubt, the professional should always consider the threat of evidence before deciding whether to destroy it. The microfilming of the documents does not permit their destruction before the expiry of the period prescribed by professional law.

13. summary: In order to provide evidence of professional activity in accordance with professional duty and as an aid to memory, the professional should document his or her activity in the hand file. The accusation of omitted instruction or inactivity can only be countered in a liability case by substantiating one’s own activity. Both the withholding of hand files for the purpose of enforcing fees and the enforcement of surrender require precise knowledge of the possible courses of action described.

by Johannes Fiala, Attorney at Law, and Axel von Walter, Attorney at Law, Munich

——————————————————————————– 1Vgl. BGH, NJW 1990, 510/Senate, NJW 1985, 2699. 2Palandt/Thomas, § 666 para. 1. 3MüKo, para. 11 to § 810 BGB m. w. N. 4Cf. MüKo, para. 1 to § 811 BGB m. w. N. 5Cf. MüKo, para. 13 to § 810 BGB. 6Cf. Palandt, para. 3 to § 811 BGB. 7Palandt/Heinrichs, § 811 para. 1. 8OLG Cologne, NJW-RR 1996, 382 f. 9Palandt/Heinrichs, §§ 259, 260, 261 marginal notes. 25. 10Borgmann/Haug, (FN 4), 152. 11Cf. BGH, NJW 1966, 1171. 12 Cf. KG, JR 49, 410. 13NJW-RR 93, 1483. 14Cf. BGH, NJW 1990, 510. 15BGHZ, 41, 318. 16BGHZ, 85, 327 [335]. 17BGH, NJW 1990, 510 f. 18BGHSt 18, 227. 19Cf. the Federal Chamber of Notaries’ leaflet on search and seizure. 20OLG Hamburg, NJW 1962, 689. 21LG Hildesheim v. 21. 4. 1988 and Birkmanns, MDR 1981, 192 f. 22LG Munich I v. 22. 4. 1988, NJW 1989, 536. 23Kleinknecht/Meyer-Goßner, § 97 marginal no. 36, BFH, StrVert 1988, 468. 24Cf. Henssler, in: BRAO, 2nd ed, § 50 marginal no. 23. 25Cf. the information leaflets of the LZB on foreign trade. 26Rösmann, NStZ 1983, 446 ff. and restrictively Waldowski, NStZ 1984, 448 ff. 27Cf. for example § 56 I sentence 2 BRAO. 28Cf. Munich Lawyers’ Court of 11 October 1996, 3 AG 11/96. 29Cf. BGH of 10 August 1995, IX ZR 220/94. 30Der Steuerberater, 1983, 41 f. 31BGH, VersR 1981, 959 f. 32Cf. BRAK-Mitt. 6/1995, p. 238. 33Fn. 101, p. 240. 34On admissibility, cf. AWV: Einfluß von Informationstechnologien auf Archivierungsverfahren, 1997. 35StB-Handbuch, 6th ed, Section S, para. 75. 36Cf. Borgmann, AnwBl 2/1998, p. 95. 37Cf. Nicknig, ZAP 7/1997, compartment 13, p. 501 ff. 38Cf. LG Heidelberg, MDR 1998, p. 188 f. ——————————————————————————– reference DStR 1998, 736

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About the author

Dr. Johannes Fiala
PhD, 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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