Fees and terms of contract
1. SCOPE OF APPLICATION
1.1. The terms and conditions of contract shall apply to all activities as well as court/official and extrajudicial acts of representation that are carried out during the course of the existing relationship between the Lawyer/law firm (hereinafter simply referred to as the “Lawyer”) and the terms of contract (hereinafter referred to as “Mandate”) with the Client (hereinafter referred to as the “Client”).
1.2. These terms and conditions of contract shall also apply for new clients, provided that nothing else has been agreed upon in writing.
2. MANDATE AND POWER OF ATTORNEY
2.1. The Lawyer shall be entitled and obligated to represent the Client to the extent necessary and appropriate to fulfil the requirements set forth by the Mandate. Should the legal situation change after the end of the Mandate, the Lawyer shall not be obligated to inform the Client of changes or consequences resulting therefrom.
2.2. Upon request, the Client shall sign a written statement granting power of attorney (hereinafter referred to as POA) to the Lawyer. The POA can be directed to address the execution of individual, precisely specified, or all possible legal acts and transactions.
3. PRINCIPLES OF REPRESENTATION
3.1. The Lawyer must carry out representation entrusted to him according to the law and must represent the rights and interests of the Client towards any party with diligence, loyalty and conscientiousness.
3.2. As a matter of principle, the Lawyer shall be entitled to carry out his services at his own discretion and take all measures, in particular, with regard to making pleas for the purpose of prosecution and defence as long as this does not contradict the Client’s Mandate, the Lawyer’s conscience or the law.
3.3. If the Client gives the Lawyer instructions to be followed that contradict the law or any other fundamental statutory regulations on professional conduct in accordance with standards which apply to the Lawyer’s proper professional practice (e.g. the „Guidelines for Practising as a Lawyer“ [RL-BA 2015] or the Practice of the Supreme Appeals and Disciplinary Commission for Lawyers and Candidate Lawyers [OBDK], henceforth, of the Appeals and Disciplinary Senate for Lawyers and Candidate Lawyers at the Supreme Court), the Lawyer must refuse to carry out the said instructions. If the Lawyer deems instructions to be inexpedient or even disadvantageous to the Client, the Lawyer must point out the possible disadvantageous consequences to the Client before carrying them out.
3.4. In the event of imminent danger, the Lawyer shall be entitled to carry out or refrain from actions that have not been expressively specified in the Mandate or are against instructions given if it is deemed to be urgently necessary in the interest of the Client.
4. DUTY OF THE CLIENT TO COOPERATE AND PROVIDE INFORMATION
4.1. Upon granting the Mandate, without undue delay, the Client shall undertake to communicate to the Lawyer all information and facts that could be of significance in connection with carrying out the Mandate as well as to make all required documents and evidence accessible. The Lawyer shall be entitled to accept the accuracy of the information, facts, documents, papers and evidence, provided that their incorrectness is obvious. The Lawyer shall work towards obtaining the completeness and accuracy of all the facts at hand by means of asking the Client target-oriented questions and/or resorting to other appropriate means. The second sentence of Point 4.1 shall be deemed applicable with regard to the correctness of supplementary information.
4.2. During the term of the Mandate, the Client shall undertake to communicate to the Lawyer all changed or newly arising circumstances that might be of significance in connection with carrying out the Mandate immediately after the Client has become aware of them.
4.3. If the Lawyer works as a contracting agent, the Client shall be obligated to provide the Lawyer will all required information that is necessary for calculating the real-estate transfer tax, registration fee, as well as real-estate profits tax. If the Lawyer executes the calculation on his own based on the information provided by the Client, he shall, in any case, be exempt from any liability towards the Client. However, the Client shall be obligated to indemnify and hold harmless the Lawyer in the event of financial detriment should the information provided by the Client prove to be incorrect.
5. DUTY OF CONFIDENTIALITY,
CONFLICT OF INTEREST
5.1. The Lawyer is obligated to uphold confidentiality concerning all matters which have been confided to him and all facts which have otherwise become known to him in his capacity as a lawyer, the confidentiality of which is in the interest of his Client.
5.2. Within the terms of applicable laws and guidelines, the Lawyer shall retain the right to assign all staff members to process issues, provided that there is proof that these staff members have been instructed on the duty to maintain confidentiality.
5.3. The Lawyer shall be released from the duty of confidentiality only to the extent that is necessary to pursue the Lawyer’s claims (especially claims pertaining to the Lawyer’s fee) or for the defence of claims against the Lawyer (especially claims for damages by the Client or third parties against the Lawyer).
5.4. It is known to the Client that, due to legal regulations, the Lawyer is obligated to give information or make reports to authorities in some cases without having to obtain consent from the Client; in particular, reference is made to regulations on money laundering and the financing of terrorism as well as tax-law regulations (e.g. the Austrian Accounts Register and Inspection of Accounts Act, the Austrian Common Reporting Standard Act, etc.)
5.5. The Client may release the Lawyer from the duty of confidentiality at any time. This release from the duty of confidentiality by the Client does not release the Lawyer from the obligation of verifying whether the his statement is in the best interest of his Client. If the Lawyer acts as a mediator, despite his release from the duty of confidentiality, he must exercise his right to maintain professional secrecy [I believe that „berfuliche Verschweigenheit is meant here, otherwise it would not make sense to waive a duty of confidentiality.].
6. THE LAWYER’S OBLIGATION TO INFORM THE CLIENT
The Lawyer shall bring to the attention of the Client all actions taken in connection with the Mandate in sufficient detail, in oral or written form.
7. AUTHORISED PROXIES AND SUBSTITUTION
The Lawyer may ask a trainee lawyer granting services to him, another lawyer, or that lawyer’s authorised trainee lawyer, to represent the Lawyer (authorised proxy). In case of being prevented, the Lawyer may pass on the Mandate or individual sub-activities to another lawyer (substitution).
8.1. In the absence of other agreements, the Lawyer shall be entitled to receive an adequate fee.
8.2. In addition to the Lawyer’s fee, also when a lump-sum or time-based fee has been agreed upon, the Lawyer shall be entitled to at least the cost reimbursement recovered from the opposing party, provided that this amount can be collected; otherwise, the lawyer shall receive the agreed lump-sum or time-based fee.
8.3. If an e-mail is sent to the Lawyer for informational purposes by the Client or the Client’s personal sphere, the Lawyer shall not be obligated to read what has been sent without an expressive Mandate. If the lawyer reads the sent e-mail, he shall be entitled to payment according to the explicit agreement for comparable services or according to Lawyers’ Fees Act And Autonomous Fee Criteria (AKH and RATG).
8.4. The value-added tax at the statutory rate, the required and appropriate expenses (e.g. travel costs, telephone, fax, copying), and the cash expenses incurred on behalf of the Client (e.g. court fees) shall be added to the fee due to the Lawyer/having been agreed upon with the Lawyer.
8.5. The Client shall acknowledge the fact that estimates made by the Lawyer regarding anticipated fees, which have not been expressly referred to as binding, shall be deemed non-binding and cannot be regarded as a binding cost estimate (as defined by Section 5 (2) of the Austrian Consumer Protection Act [KSchG]), since the extent of services rendered by the Lawyer, due to their nature, cannot be reliably assessed in advance.
8.6. The effort required for calculating the fee and issuing the invoice shall not be charged to the Client. However, this shall not apply to the expense and effort required for translations of the list of services rendered into another language other than German, performed upon Client’s request. Provided that no other agreements have been made, the invoiced amount shall not include the service of drawing up letters upon the Client’s request to the Client’s accountancy expert, which, for example, relate to the status of pending cases, or give an assessment of the risks for the purpose of forming provisions and/or reporting on the state of outstanding fees at a certain reporting date.
8.7. The Lawyer shall be entitled at any time, however, in any case, on a quarterly basis, to issue an invoice for fees due and request fees in advance.
8.8. In the event that the Client is in arrears with paying all or a part of the fee, the Client shall pay interest on arrears to the Lawyer in the statutory amount of 4% per annum. If the Client is liable for late payment, he must compensate the Lawyer for any actual damages incurred beyond this. Any further statutory claims beyond this (e.g. pursuant to Section 1333 of the Austrian General Civil Law Code) shall remain unaffected.
8.9. All expenses paid to courts or authorities (cash expenses) and additional expenses (e.g. for sub-contracted services rendered by third parties) incurred when fulfilling the Mandate may be transferred to the Client – at the discretion of the Lawyer – for direct payment.
8.10. In the event that several clients enter into a Mandate with the Lawyer regarding a legal matter, all clients are collectively liable for any of the Lawyer’s claims that result therefrom, provided that the services of the Lawyer arising from the Mandate cannot be separated and have not been rendered only for a single client.
9. LIABILITY ASSUMED BY THE LAWYER
9.1. In the event of minor negligence, the Lawyer’s liability for faulty advice or representation is limited to the insured sum available in every specific case, but for a sum amounting to at least the insured amount indicated in Section 21a of the Regulations Regarding Lawyer’s Practices („Rechtsanwaltsordnung“) in its respectively valid version. Currently, this is € 400,000,– (in words: four hundred thousand euros) and in the case of law firms in the form of a limited liability company € 2,400,000. (in words: two million four hundred thousand euros).
9.2. The maximum amount applicable pursuant to Point 9.1 comprises all claims existing against the Lawyer for faulty advice and/or representation, such as, in particular, claims for damages and price reduction. This maximum amount does not include the Client’s claims to receive back the fee paid to the Lawyer. Any and all deductibles do not reduce the liability. The maximum amount applicable pursuant to Point 9.1 relates to a single insured incident. In the presence of two or several competing damaged parties (clients), the maximum amount of each damaged party shall be reduced in proportion to the amounts claimed.
9.3. The restrictions on liability pursuant to Points 9.1 and 9.2 also apply to the benefit of all lawyers acting on behalf of the firm (as well as their partners, managing directors, employed lawyers or in another function).
9.4. The Lawyer shall be liable for individual sub-contracted services provided by third parties that the Client is aware of within the framework of the Lawyer’s service (especially external experts), who are neither staff members nor partners, only in case of fault in selecting the third party.
9.5. The Lawyer shall only be liable to the Client but not to third parties. The Client shall undertake to expressly bring this circumstance to the attention of third parties who come into contact with the Lawyer’s services due to Client’s efforts.
9.6. The Lawyer shall not be liable for any knowledge of foreign law unless a written agreement has been made or the Lawyer has offered to examine foreign legislation. EU legislation shall not be deemed foreign law, provided it is directly applicable in Austria.
10. CLIENT’S LEGAL EXPENSES INSURANCE
10.1. In the event that the Client has taken out legal expenses insurance, he/she shall inform the Lawyer thereof without delay and present the required papers (if available). However, independent thereof, the Lawyer shall also be obliged to obtain information as to whether and to what extent there is insurance of legal expenses and apply for coverage under the legal expenses insurance.
10.2. The disclosure of legal expenses insurance by the Client and obtaining coverage under the legal expenses insurance by the Lawyer shall not affect the fee claim of the lawyer against the Client. Nor shall it be deemed as consent on the part of the lawyer to accept the payment made pursuant to the legal expenses insurance as the lawyer’s fee.
10.3. The Lawyer shall not be obligated to claim his fee directly from the legal expenses insurance, but may request payment of the full remuneration from the Client.
11. TERMINATION OF THE MANDATE
11.1. The Lawyer or the Client may end the Mandate at any time without observing a deadline and without disclosing any reasons. The Lawyer’s fee claim shall remain unaffected therefrom.
11.2. In the event of a termination by the Client or by the Lawyer, the Lawyer shall continue to represent the Client for another 14 days, inasmuch as this is necessary in order to protect the Client against any legal detriment. This obligation does not apply in the event that the Client revokes the Mandate and states that he/she does not wish to obtain any further service by the Lawyer.
11.3. It is furthermore stipulated that the Mandate shall end at the time a legally enforceable judgement / decision or the like has been made if the Mandate has not been abandoned by the Client or by the Lawyer in accordance with Point 11 of the terms and conditions of contract.
12. OBLIGATION TO RETURN DOCUMENTS AND PROPERTY
12.1. The Lawyer shall return the originals of documents after the contract relationship has ended upon the Client’s request. The Lawyer shall be entitled to keep copies of these documents:
12.2. Whenever the Client asks for further documents (copies of documents) after the end of the Mandate, which the Client already received during the term of the Mandate, the Client shall bear the costs incurred in connection with this.
12.3. The Lawyer shall be obliged to keep the files for a period of five years as of the end of the Mandate and to provide the Client with copies, if so needed, during that time. Point 12.2 shall apply to bearing such costs. Whenever there are longer statutory periods pertaining to the obligation to keep documents, these shall be observed. The Client shall agree to the destruction of the files (also of original documents) after the expiry of the storage period.
13. CHOICE OF LAW AND EXTRAJUDICIAL LITIGATION
13.1. The terms and conditions of contract and the Client/Lawyer relationship governed by them shall be subject to Austrian law.
13.2. If disputes arises between the Lawyer and the Client concerning payment, it shall be at the discretion of the Client to request a verification of the fee by the Rechtsanwaltskammer Wien (Vienna Bar Association); if the Lawyer agrees for the verification to be carried out by Bar Association, this shall result in a free extrajudicial verification of the appropriateness of the fee. The Arbitration Board for Consumer Transactions (www.verbraucherschlichtung.or.at) shall become involved as extrajudicial dispute settlement body in the event of disputes between lawyers and clients. The Client shall note that the Lawyer is not obligated to call in this board for dispute settlement or be subject to it, and that, in the event of a dispute, the Lawyer shall initially decide if the Lawyer agrees to extrajudicial arbitration or not.
14. FINAL PROVISIONS
14.1. The Lawyer may correspond with the Client in any form that is deemed to be appropriate, unless provided otherwise, in particular also via mail using the e-mail address that the Client has reported to the Lawyer for the purpose of communication. If the Client sends e-mails to the Lawyer from other e-mail addresses, the Lawyer shall be entitled to also communicate with the Client via these e-mail address if the Client has not expressly refused this communication in advance. Any communication that needs to be in written form according to these terms and conditions of contract may also be forwarded by means of fax or e-mail, unless provided otherwise. Unless the Client issues another written instruction, the Lawyer shall have the right to engage in e-mail communication with the Client in unencrypted form. The Client shall declare that he/she is aware of the associated risks (especially access, confidentiality, alterations in communications during transmission) and the option of using the TrustNetz communication system, as well as grants consent, being fully aware of the risks, that e-mail communication is conducted in unencrypted form.