Although the concept of the warning notice, contrary to the often expressed opinion of many non-lawyers, is basically a very good and clever system in Germany, it must of course not be concealed that it is also open to abuse.
All too often, I receive requests for mandates regarding cease-and-desist letters, where it is very questionable whether the opponents are really only concerned with the observance of fair competition or whether it is – primarily – about the generation of fees/income.
Unfortunately, such situations are often not easy to prove and the defense usually requires taking some cost risk.
A current BGH ruling could stem the tide of such warnings only but perhaps. Accordingly, a lawyer may be liable to prosecution for fraud if he sends warning letters for alleged infringements of competition law and in doing so pretends that his client has suffered damage as a result of the legal assignment, whereas in fact it was agreed that the client would not incur any costs and that incoming payments would be divided up.
Often enough I have received similar requests, namely from potential clients who would like to issue a warning themselves, but who are afraid of the cost risk of paying me in advance.
In the present case, the BGH upheld the decision of the Regional Court, changing its previous case law in the process. The deception within the meaning of § 263 para. 1 StGB lies in the missing information (…yes what else…) to want to generate exclusively fee claims and to divide corresponding incoming payments among themselves.