Matthias Friemelt Die anwaltliche Wahrheitspflicht im Zivilprozess

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Lawyers are not allowed to lie in civil proceedings. If you ask yourself what this is based on, you will first come across Section 138 (1) of the Code of Civil Procedure (ZPO). However, according to its wording, it only obliges the party. In professional law, one finds Section 43a (3) sentence 2 Federal Lawyer’s Act (BRAO). This provision does not simply prohibit the dissemination of falsehoods, but takes the strange roundabout route of classifying them as unobjective and prohibiting them due to this reason. At the same time, most lies are presented in an objective manner. The commentaries assume a legislative blunder: The law erroneously assigns the duty to tell the truth to the requirement of objectivity.

Is the legislature really so wrong? In his dissertation, Matthias Friemelt puts the thesis of a drafting error through its paces - and finds the solution to the riddle in a decision of the Federal Constitutional Court. According to the analysis of this work, the duty of truth can be derived without contradiction from another law.

The work further deals with the circumstances under which a lawyer must verify statements made by his or her own party, what conclusions are to be drawn from the verification, how permissible use of the principle of negotiation (Verhandlungsgrundsatz) is to be distinguished from fraudulent concealment, to what extent private knowledge flows into the truth assessment and much more. A well-founded elaboration for professional and procedural jurists and an aid for practitioners in cases of doubt!