Zhou, Jinlong Company (pseudonym) wants to entrust a lawyer as its agent to participate in the litigation related matters in this case due to the equity dispute. After consultation, an agency contract was signed with a law firm, and the law firm appointed a lawyer as the agent for the equity dispute between Zhou and Jinlong Company.
Because Zhou's case is somewhat complicated, it is likely that Zhou, as a plaintiff, claimed creditor's rights from Jinlong Company, involving the value identification and payment of equity transfer funds, equity change registration and debt deduction, and the target amount is indeed not small.
Therefore, in the payment of agency fees, both parties agree on the charging method of risk agency (taking certain conditions as the premise of agency fee payment), and the main contents of the specific agreement are as follows:
1. The calculation and payment method of lawyer's fees are: after deducting the loan repayment of 2 million yuan and personal income tax paid by Zhou (Zhou is in debt to the third party in this case), when the actual money received by Zhou (if it is in kind, it is converted into actual value) is more than 7.4 million yuan, the part exceeding 7 million yuan will be paid to the law firm as a lawyer's fee at the rate of 30%.
(Law firms naturally consider their own risks. If Zhou colluded privately with Jinlong Company to control the actual money received under the terms of attorney fee payment, the attorney fee will be wasted, so the following agreement is reached. )
2. At the same time, it is agreed that if Zhou reaches a settlement or mediation agreement with the other party, it will be deemed that the law firm has completed the entrustment. In the case of self-reconciliation or mediation, the payment of attorney's fees shall be handled separately in two cases:
(1) When more than 7.4 million yuan is actually received in a week, 30% of the part exceeding 7 million yuan will be paid to jinzhou area Law Firm as legal fees according to the amount determined in the settlement and mediation agreement;
(2) If the amount actually received by Zhou does not exceed 7.4 million yuan, Zhou will pay the lawyer's fee of 200,000 yuan to the law firm at one time.
At the same time, it is agreed that the lawyer's fee will be paid in the above way within 3 days from the date of receiving the payment. If the lawyer's fee is not paid within the time limit, 0.3% of the overdue payment shall be paid to the law firm every day.
It can be seen that Zhouhe Law Firm adopts the all-insurance agent method for the payment of attorney fees, and there is no initial basic fee, which depends entirely on the handling result of Zhouhe's case. At the same time, the agreement between the two parties is also in line with the law and the charging standards for lawyers' services, and is valid according to law.
After signing the above-mentioned entrustment contract, the law firm will appoint lawyers to perform the entrusted legal services according to the contract. After more than two years of progress, the case between Zhou and Jinlong Company finally came to a conclusion.
During the trial of a dispute between Zhou and Jinlong Company in an Intermediate People's Court, Zhou reached a mediation opinion with Jinlong Company, a third person, a metal product company and a third person, Mao, and the court made a Civil Mediation (this procedure is a final retrial procedure).
The mediation confirmed that Zhou voluntarily transferred all his shares in Jinlong Company and the third-party metal products company to Mao, and the equity transfer amount was 3.5 million yuan, which was paid to Zhou by Mao 1, and Jinlong Company assumed joint and several liability for repayment.
In the actual performance process, Zhou completed the registration of equity change according to the contents of the mediation agreement, and actually received the equity transfer payment of 3.5 million yuan and compensation of 3 million yuan paid by Jinlong Company, and deducted the debt owed by Zhou to Mao of 2 million yuan.
Since then, the equity dispute between Zhou and Jinlong Company has been successfully closed and fulfilled. However, Zhou did not inform the law firm of the performance of the case and did not pay any lawyer fees.
After the law firm learned that Zhou intended to conceal the change of equity and the acquisition of shares, it sent a "Dunning Letter" to Zhou, urging Zhou to pay the lawyer's fee of 200,000 yuan to the law firm before the deadline.
However, Zhou believes that according to the agreement of the agency contract with the law firm, it does not meet the conditions for paying the agency fee, so he refuses to pay the lawyer's fee. After repeated refunds failed, the law firm sued Zhou to the court.
The defense and defense opinions of both parties
We believe that the equity dispute between Zhou and Jinlong Company was finally settled by mediation. After deducting 2 million yuan from Zhou's loan, Zhou actually received 6.5 million yuan. According to the agreement of the agency contract between the two parties, Zhou should pay 200,000 yuan in one lump sum.
At the same time, after actually obtaining the above money, Zhou failed to pay the lawyer's fee as agreed, and as agreed, he should also pay 0.3% of the overdue amount every day from the overdue date, temporarily calculated at 73,200 yuan.
I used to be my agent, and now I want to take myself to court. Faced with this identity change and the demands of nearly 300,000 law firms, Zhou believes that:
1. According to the agreement in the agency contract, the law firm is deemed to have completed the entrustment only if Zhou reaches a settlement and mediation agreement with the other party, and Zhou should pay the lawyer's consulting fee of 200,000 yuan in one lump sum.
However, the actual situation of this case is that Zhou reached a mediation agreement with Jinlong Company under the auspices of the people's court. Moreover, the law firm also assigned lawyers to participate in the mediation work and drafted a draft mediation agreement. The final mediation amount was the same as that in the agreement drafted by the lawyers of the law firm.
Therefore, the mediation was not reached by Zhou and the other party on their own or privately.
2. At the same time, according to the agreement in the agency agreement, after deducting the debt of 2 million yuan, the law firm has the right to claim 30% of the lawyer's fee for the part exceeding 7 million yuan only if it actually receives more than 7.4 million yuan in the end.
However, the result of the case is that Zhou actually got only 6.5 million yuan, which has not yet reached the standard of paying legal fees, and should not pay legal fees.
Therefore, no matter what is agreed in the agency contract, Zhou has no obligation to pay the lawyer's fee.
Trial process and results
After hearing the dispute between Zhou and the law firm, the court of first instance held that:
Under the mediation of the people's court, Zhou reached a civil mediation agreement with Jinlong Company, which did not belong to the situation of "reaching a settlement and mediation agreement with the other party on his own" as stipulated in the principal-agent contract. In the end, Zhou only got 6.5 million yuan, which did not meet the standard for paying legal fees.
The law firm also failed to submit sufficient evidence to prove that the civil mediation was reached between Zhou and Jinlong Company, so the court of first instance found that Zhou did not need to pay the lawyer's agency fee according to the agency contract. Reject the law firm's claim.
The law firm refused to accept the judgment of the first instance and appealed according to law. Among the grounds for appeal, there are mainly the following points:
"The first-instance judgment found that the mediation agreement was reached under the auspices of the court, so it was considered that Zhou did not reach an agreement with Jinlong Company, and that Zhou did not need to pay legal fees. This is wrong and a misunderstanding of the terms of the principal-agent contract."
And further explained that:
"1. The law firm signed an agency contract with the client Zhou, stipulating that" if a settlement or mediation agreement is reached with the other party by itself, the law firm shall be deemed to have completed the entrusted matters ",in order to prevent Zhou from secretly reaching mediation with the other party in order to avoid the obligation of paying attorney fees.
However, the judgment of first instance failed to find out the background of the case and the purpose of the contract when the principal-agent contract was signed, and the facts were unclear, which misunderstood the meaning of "reaching a settlement and mediation agreement with the other party by itself".
2. "Self-help" means self-help. Even the court, if it is not voluntary, has no right to force Zhou to mediate with Jinlong Company. Although the court issued a civil mediation document, it was only witnessed by a third party, and the specific mediation conditions were reached by both parties through consultation.
The mediation amount of 6.5 million yuan reached by Zhou and Jinlong Company should be regarded as the result of the private agreement between the two parties and should be regarded as the lawyer's fee payment agreed in the agency contract.
3. As a lawyer (law firm), it is impossible to sign an agency contract with a client who has no guarantee, and it is even more impossible to exclude mediation under the auspices of the court from the case of collecting lawyer's fees. The agreement between the two parties on "self-mediation" naturally includes the case where the court presides over mediation.
To take a step back, it is unreasonable and illogical for the law firm and its appointed lawyers to provide legal services for Zhou for three years.
Zhou has actually received 6.5 million yuan of equity transfer money and got 2 million yuan of debt cancellation, and the overall benefit has reached 8.5 million yuan. It shall be deemed that the conditions for payment of attorney fees have been met, and 200,000 yuan of attorney fees shall be paid according to the contract. "
The appeal reason of Zhou Law Firm, in addition to the above opinions and the opinions of the court of first instance, further emphasizes:
"It reached a mediation agreement with Jinlong Company under the auspices of the court, which is not self-reconciliation or mediation; Moreover, during the mediation process, the lawyers appointed by the law firm also participated in the mediation with their full names, and personally drafted the mediation agreement. According to this, it can also be concluded that the mediation behavior is not a private mediation between the law firm and Jinlong Company. "
Based on the appeal grounds of our court and Zhou's defense opinions, the focus of the second-instance dispute is:
"Whether the mediation reached between Zhou and Jinlong Company and other parties under the auspices of the court belongs to the situation of reaching a settlement and mediation agreement with the other party as stipulated in the principal-agent contract".
If so, then the legal ownership requires weekly payment of lawyer's fees; If you don't think it belongs, the work of the law firm for three years will be in vain.
The views of the court of second instance on this case are as follows:
1. According to the facts ascertained in the first and second trials, Zhou and Jinlong Company finally reached a mediation agreement under the organization and auspices of the court after many mediations organized by the court.
The law firm also recognized that it received and consulted the final mediation agreement before the mediation document was issued, and the law firm also appointed lawyers to participate in the drafting of the agreement. Therefore, the law firm appealed that the mediation conditions were reached by Zhou and the other party through self-negotiation, and the court only presided over the witness, but the court did not support it.
2. Regarding the law firm's claim that "after signing the agency contract, it has provided legal services, but it has not been paid, which is seriously divorced from objective reality and unreasonable", the court held that:
In this case, the law firm only claims the lawyer's fee in the second paragraph of Article 4 of the agency contract (that is, if Zhou reconciles and mediates on his own in the previous dispute focus, it is also deemed that the law firm has completed the entrusted matters and has the right to claim the lawyer's fee of 200,000 yuan).
However, due to other facts and reasons, this case did not claim the agency fee, and this court will not handle it.
Therefore, the first-instance judgment held that the law firm's claims did not meet the legal fee payment stipulated in the agency contract, and it was not improper to reject all the claims of the law firm, and the applicable law was correct, which was supported by our court.
In the end, the court of second instance upheld the judgment of first instance and rejected the law firm's appeal.
Accordingly, Zhou does not need to pay any attorney fees to the law firm.