What are the precautions in the lawyer's risk agency contract?
The risk agency contract is an agreement signed between the executed person and the lawyer, which not only guarantees the rights of the executed person, but also ensures that the lawyer can benefit from their labor. However, the risk agency contract is very detailed, so we need to pay attention to the matters needing attention in the risk agency contract to ensure the correctness of the agreement:
First, pay attention to the notification procedure of lawyers' risk charges.
Article 11 of this method stipulates that lawyers are obliged to inform the parties of the provisions of the government-guided price standard before reaching a risk fee with them. Only when the client knows the government-guided price standard and still asks the lawyer to represent the risk can the lawyer reach a risk agency agreement with the client. There are two meanings here:
First, the risk charging method must be required by the parties, and cannot be proposed by lawyers first. Although this point is not clear in this method, it can be concluded from the word "still needed" in the article that the risk fee must first be requested by the parties themselves.
Second, after the request of the parties, the lawyer must inform the parties of the provisions of the government-guided price. If the parties still insist on risk charges after notification, lawyers can negotiate with the parties about other terms of risk charges. If the parties claim to ask for risk charges without knowing and clarifying the provisions of government guidance price, and the lawyer can't prove that he has informed the parties of the provisions of government guidance price, the risk charges clause can still be confirmed invalid.
Second, pay attention to cases in which the use of risk fees is prohibited.
Articles 11 and 12 of the Measures respectively list the situations of "unable to bear" and "forbidden to bear" risk expenses. If these prohibitions are violated, the contract is invalid.
(a) four types of cases can not take the form of risk charges.
Article 11 of the Measures stipulates that four types of cases cannot be charged according to risk: 1, marriage inheritance cases; 2, request to give social insurance benefits or minimum living allowance; 3. Requesting to pay alimony, alimony, alimony, pension, relief fund and industrial injury compensation; 4. Request for payment of labor remuneration, etc.
We know that after lawyers attach winning conditions, the risk charges are often several times or even dozens of times higher than the government guidance price. If such cases are charged at risk, it will definitely exceed the ability of the parties, and may even make these vulnerable groups worse by paying lawyer's fees. Therefore, it is not appropriate to adopt risk charging.
(2) Criminal, administrative and state compensation
Cases and group litigation cases cannot adopt the risk charging method. At the same time, Article 12 of the Measures explicitly prohibits the execution of risk agency fees in criminal litigation cases, administrative litigation cases, state compensation cases and group litigation cases. The essence of the litigation in the first three cases is not a dispute of interests between equal subjects, but a legal procedure to investigate criminal responsibility and administrative responsibility according to law, or to prevent innocent people from being investigated and law-abiding people from being punished; The case of state compensation is to solve the problem of whether and how much the misjudged case is compensated by the state according to law, but the nature of state compensation is different from civil compensation, and state compensation is a kind of comfort compensation, not a complete compensation for the losses caused. Obviously, it is not appropriate to charge a risk fee. As for group litigation cases, for the sake of maintaining social stability and preventing the intensification of social contradictions, it is also not suitable for risk charging.
In the above-mentioned litigation cases that are not suitable for risk charging, lawyers can only pay more attention to social benefits, but not excessively pursue economic benefits. The extra work paid by lawyers can only get more returns from the perspective of social benefits.
(3) In the case of explicitly prohibiting risk charging, we should also pay attention to two issues.
1. It should be noted that no matter which party is represented, the plaintiff or the defendant, the appellant or the appellee, the risk charging method cannot be adopted.
2. How to define a group case? The author thinks that we can refer to the regulations on sensitive cases issued by judicial administrative organs in recent years. In the case of uncertain borders, it is best not to take the form of risk charging.
Three, pay attention to the provisions of the highest proportion of legal risk avoidance fees.
Paragraph 2 of Article 13 of the Measures clearly stipulates: "The maximum risk agency fee shall not be higher than 30% of the target amount agreed in the fee contract." According to this regulation, if the contract target is exceeded by 30%, the excess part has no legal effect.
If the case is really difficult, the workload is really heavy, and it must exceed the limit of 30%, you can consider the following methods:
(1) The Measures stipulate that the "subject matter" of litigation may be agreed by both parties.
This means that the subject matter of expenses is not necessarily calculated according to the conventional calculation method. According to the actual situation of a specific case, both parties should be allowed to agree on the amount of the subject matter, and then charge the lawyer's fee according to the agreed proportion of the agreed subject matter. However, in the writing of implementing the agreed goal, we must express the difference between the agreed calculation goal and the usual calculation goal.
(two) can cooperate with other law firms to handle cases. Agency agreement is an agreement between the parties and the law firm. Therefore, no matter how many lawyers are hired by the same firm, the risk fee shall not exceed the legal limit of 30%. However, if the parties hire lawyers in different law firms and sign risk charging agreements with different law firms, although the amount of fees signed with each law firm does not exceed 30%, it can still exceed this limit on the whole. However, the author believes that "exceeding the standard" in this case is prohibited by law.
To sum up, these seemingly trivial details are often very important. After all, "details determine success or failure", so the precautions in the risk agency contract are very important. The relationship between the executed person and the lawyer is not only an interest relationship, but more importantly, it is related to whether the executed person needs to spend the rest of his life in prison or whether his sentence can be reduced. If you have more professional questions, please contact a professional.