Legality of Guest Book Maintained by German Lawyer

I) Facts:

The defendant, a German lawyer, maintained a guest book on his web site on the internet. Comments by his clients as "guests" are displayed to anyone visiting his site. The plaintiffs are lawyers in a competing law firm in the area.

Section 43 b of the BRAO (Bundesrechtsanwaltsordnung, the federal statute containing lawyers' rights and obligations) in Germany, prohibits lawyers from providing any information on themselves that targets prosepective clients and is not objective.

The question addressed by the court is whether a guest book on the web site of a law firm may be considered less than objective information.

II) Arguments:

• 1) Plaintiffs claimed that the guest book helps the lawyer in collecting addresses in order to turn his visitors into clients. The guest book constitutes an advertisement for the lawyer himself in violation of § 43 b BRAO.
• 2) The lawyer argued that the guestbook represents merely electronic equipment without content. Therefore, it could not serve as any kind of advertisement. In addition, comments by clients belong to third persons and cannot constitute advertisement by the lawyer himself.

III) Ruling:

The court sided with the plaintiffs arguing that in everyday life, comments in guest books are usually positive. The guests praise good service and promise to return. Thus, other visitors can see and read these comments. Knowing that other clients were content with the lawyer's work the likelyhood of visitors becoming pro spective clients is greater than without such entries.

The court concluded that the lawyer created a possibility for providing information, embodied by objective comments from clients, to any visitor. As soon as a client writes down his/her opinion and it reaches another visitor, there is a violation of § 43 b BRAO.

The court then stated that providing a guestbook means creating the danger of violation of the law. Therefore, according to section 1 UWG (statute on unfair trade practices), the defendant was held to shut down the guest book.

(Nürnberg-Fürth District Court decision of October 21, 1998 - 3 O 6519/98)

* The author served as a summer intern at Berliner, Corcoran & Rowe, L.L.P., Washington D.C., in 1999. She began her German legal studies at the University of Passau, Germany, in 1996, where she also participated in a two year program studying the English legal system. Having transferred in October 1998, she is now a law student at the University of Cologne, Germany and will graduate in December 2000.