When creating “Lawyer's private document”, Like them for FlexCos
As far as the formal requirements are concerned, there were different opinions in the literature.
This concerns, for example, the question of
On 26.9.2024, the representative meeting of the Austrian Bar Association held a Amendment and addition to professional practice guidelines (RL-BA 2015) decided and added Section 11a RL-BA, which reads as follows:
“Section 11a. (1) [Lawyer's obligations when drawing up a private legal document:] When drawing up a document, the lawyer is in accordance with Section 10 (4) RAO committed:
a. to verify the identity of the parties by means of an official photo ID and by applying Section 8b (2) and (3) RAO mutatis mutandis. If the document was drawn up is a transaction in accordance with Section 8a (1) RAO acts, are in addition the Sections 8a ff RAO In any case, to be considered.
b. to document the instructions given by him or by professional party representatives in accordance with paragraph 4 in the document itself.
c. to ensure that the party signs the document in front of him, either personally or through direct contact using an acoustic and optical two-way connection in real time. The document must be sent to the lawyer in writing. It is not necessary to sign it at the same time or sign by all parties to the same document.
(2) [Exclusion of a lawyer from drawing up a private attorney-issued certificate:] The lawyer may
a. in matters involving (i) he himself, (ii) a lawyer partnership or law firm with which he is affiliated, or (iii) a person with whom the lawyer is affiliated in a lawyer partnership or law firm,
b. in matters of a lawyer, a lawyer partnership or a law firm with the same registered office, including lawyers based in domestic or foreign law offices of the lawyer, the lawyer partnership or the law firm,
c. in the case of persons who are directly related or married to him or linked by adoption,
d. in matters relating to his spouse, registered partner or partner, or persons who are directly related to them;
e. in matters relating to the protected persons represented by him as an adult representative or as a pension agent,
f. in matters in which he acts as insolvency administrator, administrator in execution matters (Section 79 et seq EO) or as restructuring officer (Section 11 ff ReO) has been ordered,
g. in cases where a document is intended to include an instrument for his own benefit or for the benefit of one of the above persons,
h. in matters relating to legal entities in which the lawyer or one of the persons referred to in points b to e holds a majority of the common, real or equity or voting rights or is a member of their representative bodies,
i. in matters in which he is a member of the supervisory board of a legal entity, provided that the supervisory body is directly involved in the notarized contracts,
j. in matters relating to his trainee lawyers and trainee lawyers within the meaning of letters a (iii) and b, and
k. in matters relating to a person for whom the lawyer or a person within the meaning of point a (ii) or (iii) or b has already worked or is working in the same matter,
not a document within the meaning of Section 10 (4) RAO build.
(3) [Exclusion of lawyer partnerships and law firms from drawing up the document:] The prohibitions in paragraph 2 lit c to k also apply to lawyer partnerships and law companies to which a person belongs or who shares the office with a lawyer in the sense of lit b and who is not allowed to draw up a document in accordance with the above provisions. This also applies to lawyers within the meaning of lit b if they have the same registered office as an (i) lawyer or a (ii) lawyer partnership or law firm that themselves or that belongs to a person who is subject to a prohibition under paragraphs 2 lit c to k.
(4) exception: The prohibition under paragraph 2 lit k is on the drawing up of documents relating to legal transactions relating to the transfer of shares in accordance with Section 12 (1) FlexKapGG not applicable provided that all persons involved in the transfer of business shares are represented by one or more in Section 12 (1) FlexKapGG listed professional party representatives within the meaning of this provision, where appropriate jointly, have been instructed (Section 10 (4) RAO).”
With the introduction of FlexKapG by Federal Law Gazette I 2023/179 Can according Section 12 FlexKapGG a legal transaction relating to the transfer of shares (Section 76 (2) GmbHG) can also be concluded in the form that a lawyer issues a document about it. Section 12 (4) FlexKapGG Refers to Section 10 (4) RAO. On the one hand, the provisions of Section 11a RL-BA 2015 provide clarifications on the relationship between Section 10 (4) RAO for Section 12 FlexKapGG. They specify Section 10 (4) RAO also with regard to the inadmissibility of conflicts of interest when the documents are drawn up.
However, the provisions of Section 11a RL-BA, which relate only to the establishment of the document, are essential. They do not apply to the mere drafting of the document1. Lawyers excluded in accordance with Section 11a (2) RL-BA 2015 may well write the contract. The document must be drawn up by another lawyer.
The proposed paragraph 1 determines what obligations the lawyer must fulfil when drawing up the document in accordance with Section 10 (4) RAO meet. In addition to verifying identity in accordance with Section 8b (2) and (3) RAO and compliance with the obligations under Sections 8a ff RAO For transactions in accordance with Section 8a RAO, instructions given in accordance with paragraph 4 must be documented in the document itself. It must be ensured that the party signs the document before the lawyer, either in person or through direct contact using an acoustic and optical two-way connection in real time. The document must be sent to the lawyer in writing (SECTION 886 ABGB). This can also be done electronically using a qualified electronic signature. It is not necessary to sign at the same time or sign by all parties to the same document.
The proposed paragraph 2 determines in which cases the lawyer does not have a document within the meaning of Section 10 (4) RAO may build. This is intended to ensure that the appearance of a conflict of interest is also avoided.
In matters under paragraph 2 lit a to lit k, the lawyer may not have a document within the meaning of Section 10 (4) RAO build. However, legal transactions under lit e and lit f which are subject to judicial review, such as in the context of adult representation and insolvency proceedings, are excluded from this. In these cases, the lawyer can obtain a document within the meaning of Section 10 (4) RAO build.
The proposed paragraph 3 is intended to make it clear that the prohibitions in letters c to k also apply to lawyer partnerships and law companies to which a person belongs or who shares the office with a lawyer within the meaning of a lawyer within the meaning of a lawyer within the meaning of lit b, for whom there is a prohibition on the establishment of the document; also apply to lawyer within the meaning of a law firm partnership, law firm subject to the prohibition or a lawyer subject to the prohibition.
This is intended to avoid opportunities for circumvention, as the above constellations must be kept the same as the case in which the lawyer notarizes on his own behalf.
Although, in the opinion of the representative meeting, a violation of the prohibition of deductibles does not invalidate the document, but merely constitutes professional quality assurance2, this provision is intended to eliminate any legal uncertainty.
The proposed paragraph 4 provides that the prohibition on drawing up documents in accordance with paragraph 2 lit c to k and paragraph 3 when notarizing legal transactions relating to the transfer of shares in accordance with Section 12 (1) FlexKapGG should not apply, provided that all persons involved in the transfer of business shares are transferred by a Section 12 (1) FlexKapGG listed professional party representatives have been advised or instructed (Section 10 (4) RAO). The fact that this provision does not apply to the drawing up of documents in accordance with paragraph 2 (a) and (b) is solely due to the fact that Section 12 (4) FlexKapGG excludes the lawyer/notary involved in the case itself from certification without establishing the exception in paragraph 4. This excessive prohibition should be removed as part of any amendment.
The guidelines for the exercise of professional practice in drawing up private legal documents make no statement as to the form in which the power of attorney for an authorized representative must be obtained: In certified form, in written form, or is an oral or implied power of attorney sufficient?
In any case, powers of attorney are admissible in which the identity of the proxy is ensured by a notarial act or by a signature of the power of attorney certified by a court or notary. In addition, a power of attorney, which was established as a lawyer or notarial private document, must be sufficient3.
The question of whether — if the power of attorney is granted before a lawyer or notary — the lawyer/notary also provide instructions to the power of attorney and this must be recorded in the legal or notarial private document is in the negative4.
A “normal” written power of attorney, in which neither a lawyer or notary confirms the identity of the proxy on the document after verifying the identity of the proxy, will in any case not be sufficient.
1 For a distinction, see Keyvan Rastegar in Rastegar/Rastegar/Rastegar, Flexkapgg-on § 12 Rz 144.
2 See Keyvan Rastegar in FlexKapGG-ON § 12 FlexKapGG Rz 156.
3 For a power of attorney in the form of at least a lawyer or notarial private document, see Zib in Aumüllner/Verweijen, FlexKapGG § 12 Rz 36; K. Rastegar in Rastegar/Rastegar, FlexKapGG § 12 Rz 143; possibly liberal Pitkowitz/Müller in Schneewiweiss/F. Hule, FlexKapGG § 12 Rz 21; however, see paragraph 24; written power of attorney is sufficient: J. Reich-Rohrwig in Reich-Rohrwig/Reich-Rohrwig/Kinsky, Flexible Corporation Rz 7.13; discussing Heimel in Wünscher, FlexKapGG § 12 Rz 36; Hartlieb/Hartlieb, On the form of authorization at FlexKapG Business share transfer, ecolex 2024, 951ff.
4 Hartlieb/Hartlieb, ecolex 2024, 953f.
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