Except in special emergency situations (see lawyer’s obligations below), we provide our services on the basis of a Power of Attorney Agreement (PoA), discussed in advance with the client and which specifies in particular the mission, the hourly rate or the amount and calculation of the fees, as well as the method of covering the various costs and expenses that may be incurred.
The legal framework and the PoA cover in particular the following points
As the lawyer’s duty is an obligation of means (versus results), the lawyer undertakes to do his utmost, within the limits of the law, to defend the interests entrusted to him by the client to the best of his ability and to keep him regularly informed of the progress of the mission entrusted to him and of any important element that has come to his knowledge in connection with it.
Therefore, the succesful outcome of a procedure for exemple cannot be guaranteed.
In cases of urgency, in particular when the client cannot be contacted, in order to be able to act within the time limit and when there is a risk of foreclosure, the lawyer is authorised to act in the strict interest of the client, to safeguard his rights.
Furthermore, the lawyer may not enter into any transaction without the explicit consent of the client.
Without contrary agreement, the client allows the lawyer to collect all payments related to the litigation, as well as all costs or indemnities granted by an authority, subject to final settlement.
The remuneration of the firm is determined in advance between the lawyer and the client. Depending on the situation, the parties may agree on an hourly rate, which may be adjusted according to the difficulty of the mandate, the value of the dispute or any particular conditions linked to the lawyer’s intervention. They may also agree on a fixed fee. The hourly or flat rate is indicated in the PoA. It does not cover expenses or costs which are payable in addition (see below).
The work done by the secretary is in principle not charged. Exceptions to this are particularly important or complex administrative tasks in a particular case.
The lawyer is entitled to compensate his or her fees, even if they are contested, with the amounts collected for the client.
If the client is eligible for Legal Aid in the context of legal proceedings, which the lawyer will determine as soon as possible, the necessary steps for its granting will be taken, as soon as the client has provided the necessary evidence. If the client neglects his duty to provide them or is denied the legal aid, the fees will be due from the beginning of the lawyer’s intervention, in accordance with the previous paragraphs.
The award of an amount as compensation or costs to the lawyer through a court decision is regulated by law. If this amount is lower than the fees calculated in accordance with the PoA (e.g. in the case of extensive work in relation to a small value in dispute), the difference remains due from the client in accordance with the PoA, except in cases subject to the mandatory provisions of the legal aid. On the other hand, if the costs are higher because a higher value in dispute than the one used as a basis for the hourly rate has been retained by the judge, the difference remains due to the lawyer.
If the PoA provides for an hourly rate, a reasonable retainer will be requested based on the estimated costs of the requested intervention. This retainer may be increased if necessary as the situation evolves. Depending on the circumstances, the lawyer is entitled to invoice his services on a time basis and to send interim invoices to the clients.
In the case of a fixed fee, the retainer will be deducted from all or part of the agreed fixed fee.
Depending on the situation, the lawyer is free to make the start of his work dependent on the payment of the retainer.
If the retainer is not paid within a reasonable period of time, or if interim invoices are pending, the Firm reserves the right to suspend its intervention, having previously drawn the client’s attention to this decision.
The parties may agree on the payment of a fee based on the result, fixed either according to the value of the dispute or based on the interest of the result for the client. This agreement shall be the subject to a separate agreement.
All costs incurred by the Firm in the execution of the mandate must be paid in addition to the fees due. The usual costs of copies, telephone calls, stamps, etc., are subject to a fixed fee (5%) calculated on the basis of the fees due. In addition, travel and/or accommodation costs may be charged at the effective costs.
On the lawyer’s side, the client may at any time request full information on the progress of his/her case. In addition, the lawyer discusses each important step with the client in advance, informs him/her of the outcome of the negotiations and of the communication received or sent, by means of copies sent by ordinary mail or e-mail, depending on the agreed way of communication.
On the client’s side, in order for the lawyer to carry out the mandate correctly and with full knowledge of the facts, he/she undertakes to provide the client with all the necessary information in a complete and timely manner, even if the situation changes during the mandate.
The client is hereby reminded that the lawyer depends on being provided with all the documents necessary for the performance of his mission given to him/her in a complete and timely manner. The lawyer also assumes that the information given to him/her by the client or his/her assistants is correct.
If the client has subscribed a legal protection insurance, he/she must inform the lawyer immediately. He/she also explicitly authorises the lawyer to provide the insurance company with all the information necessary for the handling of the case, either in writing or verbally.
The lawyer also informs the client about his contacts with the insurance company or about payments made by the latter.
If the legal protection insurance does not fully cover the fees and costs agreed upon in the PoA, the client shall continue to be liable to the lawyer. If, on the other hand, the lawyer obtains compensation or costs in excess of the insurance payments, the difference shall remain with the lawyer.
For reasons of efficiency and diligence, it is assumed that the lawyer will use electronic communication (unless this has been excluded from the outset or during the course of the mission due to special circumstances related to the client’s situation, or has been expressly rejected by the client).
The client acknowledges that the transmission of information by electronic means (e-mail, Internet application, etc.) generally entails risks, such as the possibility of unauthorised third parties becoming aware of the transmitted data or misusing it. It is also possible that the transfer of information may be deficient (e.g. due to the capacity of mailboxes).
Unless expressly agreed otherwise, electronic communication is unencrypted and the client expressly authorises the lawyer to use unencrypted communication, in full knowledge of the risks mentioned in the previous paragraph. Any additional costs related to an agreed encrypted transmission, in particular the costs charged by secure messaging platforms, will be invoiced separately. Similarly, additional time spent on encryption will also be charged at a flat rate or based on actual time, depending on the circumstances.
For videoconferences, the lawyer uses Teams or Zoom applications. The client is made aware that no additional protective measures have been taken to those put in place by the suppliers of these two applications regarding the respect of professional secrecy and data protection. He/she therefore accepts the potential risks associated with their violation. The terms of use of the videoconferencing system provider shall apply. The client also undertakes to take all necessary measures to ensure the security of the passwords and access links provided by the lawyer.
In the fulfilment of his duties, the lawyer is free to decide on the manner in which he will keep his files. In particular, he/she is free to use electronic record keeping. The client thus accepts that the electronic files contain all data relating to the lawyer’s services, e-mail and copies of all documents entering or leaving the office and that these electronic files, as well as their paper version, are accessible to all employees of Etude MM SA.
Whether the lawyer communicates by post or electronically, the client is responsible for the storage of the documents transmitted.
The period of storage of the documents at the lawyer’s office corresponds at least to the period required by the lawyer’s accounting obligations, i.e. the usual period of 10 years from the end of the mandate. The lawyer is entitled to keep them longer. If he ceases to practice, he is entitled to entrust them to other collaborators or partners of the Etude MM SA law firm or to the local bar association (OAF).
For practical reasons related to the diligence duty, the lawyer is entitled to outsource the maintenance or operation of its IT systems (including through a cloud solution). The client’s attention is expressly drawn to this point and he/she agrees to this method of proceeding by signing the PoA. The lawyer shall ensure that all his professional obligations, in particular those relating to professional secrecy and data protection, are fulfilled by the solutions he used in his practice.
The Firm undertakes to do its utmost to ensure that the data entrusted to it is protected and that professional secrecy is respected in accordance with the standards of the legal profession. As the execution of the entrusted mission is usually inextricably linked to the use of IT means and various services linked to the use of the Internet, by signing the PoA, the client accepts this way of proceeding, as well as communication by electronic means (see above). Etude MM SA assumes no liability in this respect, except in case of gross negligence.
The lawyer carries out his work, if necessary together with other lawyers, in a common infrastructure and under a common name. However, he remains solely responsible for the execution of his mandate.
During the mandate, the lawyer is entitled to call on all the staff of the firm (partner, legal assistant or secretary). However, he remains responsible for their actions.
If necessary, and only with the consent of the client, he is entitled to call on external specialists. Unless expressly agreed otherwise, the mandates are granted in the name and for the benefit of the client and at his cost.
In the absence of the lawyer, the latter may be represented by the employees of Etude MM SA or its partners, who are authorised to sign any documents necessary for the execution of the mandate (in particular, documents to be submitted to the authorities within a certain period of time) on behalf of the client. However, their power of representation is limited to the power granted to the lawyer.
The lawyer’s mission ends as soon as the object of the mandate has been achieved or can no longer be modified. In case of doubt, the two parties agree on whether or not to go on with the mandate, if necessary, by amending the PoA or adapting it to the new circumstances. If necessary, a new PoA will be signed.
As the relationship between the lawyer and the client is based on mutual trust, the client may at any time revoke the mandate granted according to the PoAhe PoA.
The lawyer may also terminate the contract. If possible, he/she should avoid doing so at the wrong time. However, there is no wrong termination in untimely fashion if the client does not comply with requests for advance payment and the lawyer revokes the mandate for this reason.
In the event of a dispute over fees, the client hereby releases the lawyer from his or her duty of confidentiality to the extent necessary to collect the claim.
The lawyer is entitled to invoice the services provided up to the date of termination, as well as all steps related to the termination of the mandate (information to the authorities and other parties, constitution and transfer of the file to the successor lawyer).
NB: the terms “lawyer”, “law firm” and “Etude MM SA” have the same scope of meaning.
