The First Civil Senate of the Federal Court of Justice (BGH), which is responsible, among other things, for competition law, has ruled that the use of the designation "certified executor (AGT)" by a lawyer does not, in principle, violate the law governing the legal profession and the prohibition of misleading statements if the person concerned fulfils certain requirements in both theoretical and practical terms.
The defendant lawyer is a partner in a law firm in Regensburg. In his letterhead he calls himself a "Certified Executor of Wills (AGT)". He holds a certificate from the Arbeitsgemeinschaft Testamentsvollstreckung und Vermögenssorge e.V. (AGT). (AGT), which issues a certificate as a "Certified Executor" on application if the applicant has participated in certain performance checks. Lawyers only need two years of activity in the profession to prove practical skills.
The plaintiff, the Nuremberg Bar Association, objected to the designation "Certified Executor (AGT)" as misleading and contrary to professional law because the defendant did not have sufficient practical skills in the field of executorship. In addition, the inaccurate impression was conveyed that the profession of executor existed.
The Regional Court of Regensburg dismissed the action. The Nuremberg Higher Regional Court upheld it (OLG Nuremberg, GRUR-RR 2011, 12). The advertising with the designation "Certified executor (AGT)" was unobjective and misleading because it created the expectation among the consumers addressed that the person presenting himself in this way would regularly act as executor. The defendant did not fulfil this requirement, as according to his own statement he had only acted as executor in two cases so far.
The Federal Supreme Court rejected the defendant's appeal against this assessment. According to the court, there are no objections to a reference to certification in connection with the activity as executor of a will from the perspective of professional and competition law. The statement contained information that was certainly of importance to the public seeking legal advice. It does not give the advertising addressees the incorrect impression that the certificate was issued by an official body. The use of the designation "executor" is also not in itself misleading or unobjective. The public recognises that this is not a special professional title but a description of the activity. However, the consumers addressed expect a "certified executor" to have special theoretical knowledge and practical experience in the field of executorship. This also requires lawyers to have repeatedly acted as executors in the past. It is therefore misleading when lawyers without practical experience as executors use the designation "certified executor". Even having acted as executor twice is not sufficient - according to the BGH - to meet the expectations that the public has of a "certified executor".
Judgment of the BGH of 9 June 2011 - I ZR 113/10
Lower courts:
Regensburg Regional Court - Judgment of 28 January 2010 - 1 HK O 2329/09
Nuremberg Higher Regional Court - Judgment of 28 May 2010 - 3 U 318/10
Source: Press release of the BGH
Goldberg Attorneys at Law 2011
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de
