Attorney and Master Fraudster! – Permitted?

May an attorney, relying on the principle of procedural privilege, accuse his opposing counsel in written pleadings of "commercial litigation fraud" and call him a "master fraudster"? The Higher Regional Court (OLG) Frankfurt a.M. recently had to decide whether this constitutes impermissible defamatory criticism.

In a very heated proceeding, an attorney accused a colleague in writing of violating the procedural duty of truthfulness applicable in Germany for many years through repeatedly incorrect representations of the facts in parallel proceedings, thereby committing a criminal offence of "commercial litigation fraud". Furthermore, the attorney called his colleague a "master fraudster" in writing.

The attorney thus insulted demanded that the statements be discontinued. In his view, the statements of the opposing counsel should be classified as defamatory criticism and thus be discontinued.

Court Decision

The Higher Regional Court (OLG) Frankfurt a.M. decided by means ofJudgment of 27.03.2014 – Az. 6 U 75/12, that the statement made in a written pleading, that the opposing attorney commits "commercial litigation fraud" and is a "master fraudster", constitutes impermissible defamatory criticism not privileged under procedural law.

A statement takes on the character of an always impermissible defamation if it is no longer the substantive dispute, but the defamation of the person of the opponent that is in the foreground, and this defamation consists in the denigration of the person of the opponent beyond polemical and exaggerated criticism. This was the case here.

The Higher Regional Court (OLG) Frankfurt a.M. furthermore decided that this applies even without regard to whether the accusation of litigation fraud is justified in individual cases. To the extent that the statements were not in connection with the current case or the further content of the written pleading, the attorney cannot rely on the principle of procedural privilege.

Conclusion

The Higher Regional Court (OLG) has decided that the procedural privilege of attorneys can only apply to statements in connection with the concrete case, even if the statements correspond to the facts. The boundary to defamatory criticism must not be crossed even then.