The architect is not a legal advisor
The Federal Supreme Court (Bundesgerichtshof=BGH) (judgment of 11 February 2021, I ZR 227/19) and the Higher Regional Court (OLG) Koblenz (order of 07 May 2020, 3 U 2182/19, NZBau 2021, 187 et seq.) have each held that architects must be very careful not to provide unauthorised legal advice in their services to their clients.
According to the BGH, an unauthorised legal service exists if the architect represents the property owner in an objection procedure against a negative decision on a preliminary building application and the assertion of cost reimbursement claims related to the objection procedure. According to the BGH, these are not ancillary services that are part of the architect's profession or activities (§§ 3, 5 RDG).
Similarly, the OLG Koblenz ruled in another case that an architect commits unauthorised legal advice if he - commissioned with the implementation planning and participation in the awarding of the contract - gives the client advice to terminate the contract in an unclear contractual situation. It is true - according to the OLG Koblenz - that in many respects architectural services are related to legal services; therefore a generous standard is to be applied in favour of the architect in determining what legal services are still permissible (OLG Koblenz, NZBau 2021, 187, 188, right column). In this case, however, the limit had been exceeded.
According to the BGH, the following standard for the delimitation is to be applied in principle: According to section 2(1) RDG, a legal service is any activity in specific third-party matters as soon as it requires a legal examination of the individual case. According to the Federal Supreme Court, this provision covers every concrete subsumption of a matter under the relevant legal provisions that goes beyond a mere schematic application of legal norms without further legal examination. Whether the legal questions are simple or difficult is irrelevant (citing BGH, Judgment of 14 January 2016, I ZR 107/14, GRUR 2016, 820 para. 43). The question of whether an own or a third party's legal matter is involved is based on the economic interest in which the handling of the matter lies (BGH, GRUR 2016, 1189, para. 26).
According to this standard, it was to be noted in the BGH case (here, too, the lower court was the OLG Koblenz) that the architect in question had provided unauthorised legal advice in the opposition proceedings against the preliminary building application.
In practice, this means that both the client and the architect himself must check very carefully whether the desired actions are still covered by the architect's legal services competences or whether legal services within the meaning of Section 2(1) RDG have already been provided. Whether the matter is simple or difficult is irrelevant. As soon as a fact of life is legally assessed, this is legal advice. A lawyer must be called in.
Düsseldorf, 15 March 2021
Dr. Dieter Jasper, lawyer