Access to justice – even for those on a tight budget: The option of appointing a lawyer ensures that even people with limited financial means have access to qualified legal advice and representation. The appointment of a lawyer means that the fee claims can be settled with the state treasury. The court first checks the financial need of the applicant and the legal necessity of legal representation. If the requirements are met, the court issues a decision to appoint a lawyer.
Court must observe “prohibition of additional costs” according to § 121 para. 3 ZPO
The “prohibition of additional costs” according to Section 121 para. 3 ZPO when assigning a lawyer. This means that a lawyer who is not resident or resident in the court district may only be assigned to a limited extent. This is intended to avoid additional costs for the state treasury.
But what happens if the court fails to include the proposed limitation of remuneration in the appointment decision? Then the costs of external legal representation must also be borne by the state treasury – this was decided in a recent decision by the Higher Administrative Court of Bremen (OVG Bremen, decision of July 23, 2024 – OVG 1 S 93/24 | AnwBl Online 2024, 201).
Foreign lawyer claims travel expenses and absence allowance
Facts of the case: In proceedings before the Administrative Court of Bremen, the plaintiff was granted legal aid and was assigned a lawyer who was not resident in the court district.
The lawyer then requested reimbursement of her fees, including travel expenses and absence allowances incurred due to the distance from her office. The Registrar refused to reimburse these additional costs and fixed the fees and expenses to be paid to the lawyer from the State Treasury at EUR 864.54.
The lawyer lodged an appeal against this decision, which the administrative court upheld. By order, it set the lawyer’s remuneration to be paid from the state treasury at 1,155.73 euros. The opponent of the appeal (district auditor for the specialized courts as representative of the state treasury) appealed against this decision. The Higher Administrative Court of Bremen rejected the appeal.
Decision in the allocation resolution is binding
Although a restriction according to Section 121 para. 3 ZPO would have been fundamentally necessary, it was not made in the assignment decision. The OVG makes it clear that the registrar was bound by the court decision in the subsequent fee determination procedure – even if it was incorrect.
If such a restriction is not made in the allocation decision, this decision is binding in the remuneration determination procedure, according to the Higher Administrative Court of Bremen.
Reasons for the binding effect in brief:
- Legal certainty: The parties must be able to rely on the content of the allocation decision.
- Protection of confidence: The assigned lawyer could have trusted that she would actually receive the remuneration to which she was entitled.
- Different procedures: The approval and allocation decision is not subject to substantive review in the remuneration assessment procedure. The review of the legality of the allocation decision is not the task of the cost assessment procedure.
OVG: A reinterpretation of the decision is not possible
The Higher Administrative Court stressed that a restriction on the appointment must be made explicit for reasons of legal certainty and clarity. An interpretation or reinterpretation of the decision is only possible in exceptional cases, for example if the restriction arises from the reasons for the decision or if the application for legal aid and appointment has already been made with restrictions. In the present case, however, there were no indications of such an exceptional situation.
Conclusion
The decision of the Higher Administrative Court of Bremen underlines the importance of legal certainty in legal aid proceedings: It shows that even incorrect assignment decisions are binding and cannot be subsequently corrected. Although this may lead to higher costs for the state treasury in the short term, it strengthens trust in court decisions in the long term – and protects the legitimate expectations of the lawyers involved.
