Professional Oversight Law
The law governing the so-called ‘free professions’ – lawyers, accountants, and tax advisors – is marked by state supervision, on the one hand, and autonomous self-administration by governing bodies, on the other.
The built-in tension between these two aspects is heightened by another factor: professional regulation and the punishment of violations of professional licensing laws are carried out by regulatory bodies (in less-serious cases) and by the courts (in serious cases). When courts are involved in sanctions, the responsibility falls to special panels of the official court system. The proceedings are regulated by the rules of criminal procedure.
Administrative courts handle professional-licensing matters which do not involve sanctions – for instance, ordering a special investigation. These procedures are governed by the rules for administrative courts, which do not grant the accused rights comparable to those found in the Code of Criminal Procedure.
Almost every professional-licensing dispute takes an emotional toll, since it often appears to pose a risk of economic ruin. Further, the use of criminal-procedure rules – despite the advantages they bring for the accused – is often perceived as stigmatizing.
Professional-licensing disputes may also create risks in the civil-law arena. There may be exposure to compensatory-damages claims from clients and third parties (for instance, investors). In the worst case scenario, professional discipline may also result in criminal liability, for instance in cases involving accounting irregularities.
All of these aspects must be taken into account. For these reasons, truly effective legal assistance demands not only considerable legal know-how but also practical experience. Only this combination enables an advisor to judge whether the best approach is a vigorous defense through all levels of the court system or a quick and acceptable resolution by compromise.
Honesty with the client and a clear eye for what is feasible are absolute necessities for responsible representation in professional-licensing matters. A good compromise should never be confused with defeat. Even the substitution of milder language in a court judgment can limit or even eliminate follow-on risks and should therefore be judged a success. In any case, the person concerned should have an expert legal adviser at his or her side. Our attorneys have accompanied many freelancers and helped the respective professional proceedings to an optimal outcome.
DANCKERT BÄRLEIN & PARTNER Rechtsanwälte GbR
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