Lawyers in Austria

Lawyers in Austria

Legal Professionals

They include:

  • RECHTSANWALT (advocate/attorney): see below.
  • NOTAR (notary): see below.
  • Staatsanwalt – (Public Prosecutor): The Staatsanwalt represents the State in criminal prosecutions, and has only a limited role in civil proceedings (in re succession). Only a judge or former judge can be appointed as a public prosecutor. Thus the training is the same as that of a judge. Appointment is by the President of Austria, though the power is delegated to the Minister of Justice. The Minister will normally follow the advice of the Personnel Commission (Personalkommission).
  • Wirtschaftstreuhänder (Independent Accountants): There are three levels of accountancy. At the bottom is a Steuerberater, the mid-range one is called a public accountant (Buchprüfer) and tax counsel (Steuerberater as below), at the top level are the qualified certified public accountants called Wirtschaftsprüfer (and Steuerberater). The Wirtschaftsprüfer do the top level audits. All three groups are thus categorised by their Wirtschaftstreuhänder-Kammergesetz.
  • PATENTWALT (patent lawyer): The Patentanwälte deal with patent law and have a limited right to appear in Court in relation to patent actions.

Types of Lawyer: Rechtsanwälte

Essentially there is only one main type of legal practitioner, referred to as the Rechtsanwalt (for a man) or Rechtsanwältin (for a woman). The Rechtsanwalt gives legal advice to clients and can represent them in court. The professional title Rechtsanwalt (lawyer) is protected by law. It can be used only by persons who are registered in the list (roll) kept by the Rechtsanwaltskammer. The Rechtsanwalt has a monopoly over the giving of legal advice, though other professionals, within the sphere of their competence are entitled to give such advice (e.g. notary, Patentanwalt).

Organisation of Lawyers

Rechtsanwälte can practise as sole practitioners, in partnership or in a corporate form. Lawyers may not be employed. Rechtsanwälte can practice in Courts throughout Austria. They can form civil partnerships, but most are sole practitioners.

Rechtsanwaltskammer (lawyers’ chambers)

Every lawyer must be registered in a special list (roll) kept by the Rechtsanwaltskammer. All lawyers of a province set up such a professional organisation. Those lawyers entered on the list form a lawyers’ chamber (Rechtsanwaltskammer ) the lawyers’ chambers are public corporations and autonomous self-governing bodies. The lawyers’ chambers, which also have state tasks to fulfil, are governed by freely elected committees and one of its members is elected to represent the committees as President. Delegates from the lawyers’ chambers from each Bundesland coordinate their tasks with a common representative on a state level – the Austrian Rechtsanwaltskammertage.

Access to the profession of Rechtsanwalt

In order to become a Rechtanwalt(in) in Austria the following conditions must be fulfilled:

  • Austrian (or EEA) nationality.
  • Personal qualifications.
  • Master of law or Doctor’s degree (see Qualification Process below).
  • Professional stage requirements (see Professional Qualifications below).
  • Examination for lawyers (the Bar examination, see below).

In Austria lawyers are not appointed by the State; to become a Rechtsanwalt they have to meet the requirements mentioned above. In addition, they have to take an oath and must be registered in a special list (roll) kept by the Rechtsanwaltskammer. See below information on:

  • Qualification process (see below).
  • Rechtsanwaltsordnung (RAO).

Bailiffs

Information about Bailiffs in the European countries is provided here.

Notaries

Information about Notaries in the European countries is provided here.

Other Issues

Mobility

This topic include the following:

  • Eligibility: see below.
  • Preparatory courses: see below.
  • Applications: see below.
  • Setting up legal practice: see below.

Eligibility

The Law indicates as follows:

  • Citizen of any of the contracting parties to the European Economic Area are entitled to apply.
  • Those citizens who have obtained a diploma* can practice in Austria if they pass a qualifying examination and if they are registered in the list of lawyers of the appropriate Bar Association.

Any proof or certificate of examination or proof of competence in the sense of Appendix VII of the Treaty of the EEA under 389 L0048 of the cited Directive 89/48/EEC of the Council (21.12.1988 about unifying recognition of the higher education diploma received at the end of at least three years of vocational training).

Preparatory courses

Preparatory courses are run by private tutors in the towns where the examinations are held.

In relation to the competent Oberlandesgerichte for the Examination (Board for Lawyer’s Examinations), the Responsibility of the Board for Lawyer’s Examinations depends on where one was born. Applications should be addressed to the State of birth of the applicant. In this respect the following are responsible:

The Rechtsanwaltsprüfungskommission at the Oberlandesgericht of Vienna:

Denmark
Germany
Finland
Norway
Sweden
Iceland

The Rechtsanwaltsprüfungskommission at the Oberlandesgericht of Graz:

Greece
Spain
Italy
Portugal

The Rechtsanwaltsprüfungskommission at the Oberlandesgericht of Linz:

France
United Kingdom
Ireland

The Rechtsanwaltsprüfungskommission at the Oberlandesgericht of Innsbruck:

Belgium
Luxembourg
Netherlands
Liechtenstein

Setting up legal practice

After the foreign lawyer has successfully sat the qualifying exam, if he wants to set himself up in a legal practice in Austria, he or she must obtain entry onto the list of lawyers by the committee of the lawyers’ chamber in which district he is taking his chambers seat. The committee has four months from the date the application to decide.

For the rest, see 5 and 5 a of the Rechtsanwaltsordnung for the decision of the committee and the right of appeal.

The applicant must attach to the application:

  • proof of success in the qualifying exam,
  • proof of his trustworthiness,
  • a certificate of his good reputation with reference to discipline,
  • a certificate showing that he is not bankrupt, and
  • a certificate of good conduct (police).

The certificates must not be older than 3 months.

Before entry on to the list of lawyers, a indication of pledge of civil honour and fidelity to Austria is necessary.

From the time of entry on to the list, the foreign lawyer has the same rights and duties of Austrian lawyers on the list.

Legal Education. Qualification Process

The training for the legal profession in Austria takes place in two steps; first a theoretical training at one of the five law faculties, after that comes the practical training.

To study law at university you need a certificate of higher education, the so-called Matura, from a secondary school and the proof of the knowledge of Latin.

Relevant information:

  • Format of the Law degree: Since 1981 the study of law has been split up into a Diplom-Studium (study at the end of which you get a diploma the Magister der Rechtswissenschaft) and a Doktoratsstudium (study at the end of which you get a doctor-degree). Only the Diplomstudium is required to enter the legal profession. See Magister der Rechtswissenschaft (Master of law), Doktoratsstudium (Doctor’s degree), Diplom-Studium (Diploma) and Studienabschnitt.
  • Post degree professional stage (Professional Qualifications – Rechtspraktikant): After finishing the Diplomstudium each graduate has a right – but it is not a duty – to continue his training for a legal job as Rechtspraktikant (trainee) at a court and to test and deepen in that way his knowledge of law. [1].
  • Institutions offering law degree. The following Universities are entitled to confer law degrees: University of Vienna, University of Graz, University of Linz, University of Innsbruck and University of Salzburg.

Legal Training. Rechtsanwaltsanwärten – access to the profession

As an introduction to legal training in Austria, affter obtaining the Master’s degree a would-be Rechtsanwalt (a RECHTSANWALTSANWAERTER) has to complete a five-year professional stage (would-be lawyers with a Doctor’s degree have to complete a four and a half-year stage):

  • Nine months must be passed in court (as a Rechtspraktikant);
  • Three years must be passed working at an Austrian legal office with a Rechtsanwalt ;
  • Training courses amounting to 42 half days must be undertaken during this time in legal skills (such as client care, mediation, advocacy and so on). See the Austrian Academy for Lawyers (AWAK) fro further details;
  • 15 months (nine months for those with a doctorate) can be passed in court, at a notary’s office, at a tax consultant’s or Rechtsanwalt’s office or at a public authority or university (doctoral studies) provided the studies are useful for practice as a Rechtsanwalt.
  • Comparable practice abroad will be accepted too.

After the law clerking in Court, and at least two years traineeship with a lawyer, the trainee can take the Rechtsanwaltsprüfung (a written and oral examination).

The Bar examination

This can be taken after the Doctor of Law degree or for those with a Master of Law degree after practical work of altogether 5 years (at least 9 months at a court and at least 3 years at a lawyer’s office are required).

The written and oral lawyer’s examination is sat before a senate of the Lawyers Exam Commission which is established at the Higher Regional court. The senate of the Lawyers Senate consists of two judges and two Rechtsanwälte.

The Written Examination

The participant must:

  • in civil law (on the basis of written information), prepare the complaints, replies to complaints and decision, or the petition, every type of opposing comment and decision in the disputing proceedings or (on the basis of a Court Record) a legal redress or an appeal to the constitutional or administrative court,
  • in administrative law the exam participant must prepare (on the basis of a decision) the means of legal redress or an appeal to the constitutional or administrative court and
  • in criminal law (on the basis of court records), prepare a legal redress against a decision of mthe court of first instance.

The Oral Examination

Includes the following topics:

  • CIVIL LAW: including international private law as well as the essential feature of employment law and social security law, procedural civil law.
  • CRIMINAL LAW: criminal procedure law, essential features of criminology and criminal penal law,
  • COMMERCIAL LAW: law of stocks and shares, law of intangible property, industrial protection law as well as business law together with procedural law, bankruptcy law, law of compensation and law of appeal.
  • CONSTITUTIONAL LAW: constitutional and administrative jurisdiction, administrative procedural law and administrative criminal law.
  • TAX LAW: including financial criminal law and procedural law, arranging of contracts and drawing up of documents.
  • DUTIES AND RIGHTS OF LAWYERS: duties of lawyers as employers, in particular knowledge of the areas of employees protection rights and apprentice training and “costs” law.
  • European Law.

History. Rechtsanwaltsprüfung – Lawyers’ exam

The exam used to consist of two parts. The first part could be sat after achieving a Doctor of Law degree or, for law degree graduates after 1978, after achieving a Masters of law and practical employment for two years and nine months (at least nine months spent with a domestic court and at least a year and 6 months with a lawyer). The Second part of exam could be sat after the first part and a further practical employment for a year and a half (at least a year with a lawyer). Above all, the requirement for sitting the exam was participation in the compulsory training arrangements for trainee Rechtsanwalt (called a Rechtsanwaltsanwärter). The newly amended law has altered this situation.

A part of the training of a Rechtsanwalt is still the taking of the Bar examination.

Governing Bodies: Österreichischer Rechtsanwaltskammertag

Delegated lawyers from the various Rechtsanwaltskammern form the Österreichischen Rechtsanwaltskammertag which is situated in Vienna. This organisation delivers opinions, determines general guidelines for lawyers, lays down a code of standards regarding the fees and is responsible for the training of future lawyers.

Duties of the Rechtsanwaltskammertag include particularly the report on suggestions for laws and opinions on draft laws as well as announcements of defects in the administration of justice and a report of suggestions for improving the administration of justice.

The Austrian Rechtsanwaltkammertag lays down guidelines for practising a career as a lawyer and for supervision of the duties of lawyers, also guidelines for payment of lawyers and finally guidelines for the training of would-be Rechtsanwalt.

Lawyers who repudiate their career duties or reputation, must be responsible for themselves before an elected disciplinary council within the lawyers’ chamber. Penalties imposed by the disciplinary council go as far as lawyers being struck off the list.

Relevant Legislation

Austrian Implementation of Directive: 89/48/EEC: EWR-Rechtsanwaltsgesetz 1992-EWR-RAG 1992. Ref: BGBl 1993/21

Author: J Lonbay

Lawyers in other European Countries

Resources

Notes

1. This training at a court as Rechtspraktikant is required for at least nine months if someone wants to become a Rechtsanwalt, a Notar or a judge. But nearly all law graduates take part in this training at court (Rechtspraktikum) because, although it is not compulsory, one is required to do so (as a matter of practice) if one wishes to enter any other job. The admission for this training is regulated by the Präsident des Oberlandesgerichtes. Such a training place at court is normally granted for one year. The Rechtspraktikant is not employed by the State but merely taking a training course. The advantage of this is that to get a place at court there is no need for an established post and therefore the training can be started monthly (on the first day of the month). The Rechtsprakitkantmust take a solemn oath. Nearly all law graduates take part in this court training.

See Also

Further Reading

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