Will we be able to pay legal fees if we win a marriage or inheritance lawsuit?
Litigant asks a lawyer, the lawyer agent fee naturally becomes an unavoidable topic.There are many ways for lawyers to charge fees, one of which is to fight a lawsuit first, win the lawyer only charge, lose no fees.This approach is called “risk brokering”.This means that the lawyer shares some degree of risk with the client.Of course, not all cases can adopt the model of risk entrustment.Whether marriage and inheritance cases can be represented by risk agents is not the same in the official documents of each competent unit, and there are also differences in the management regulations of the lawyer industry across the country, and there are even disputes in the judicial practice of court proceedings.The Ministry of Justice, the National Development and Reform Commission and the State Administration for Market Regulation jointly issued the Opinions on Further Regulating lawyers’ service fees (hereinafter referred to as the Opinions).Yinshi Financial reporter noted that the opinions set a “tone” for the “risk agency model of marriage and inheritance cases” : it prohibited the implementation or disguised implementation of risk agency in a variety of cases, including marriage and inheritance cases.In addition, the Opinions also set an upper limit on fees for cases that allow risk agency in a step-by-step manner, with the maximum amount of fees not exceeding 18 percent of the target amount.A number of industry insiders believe that the opinions will not only be aimed at family cases, but also will bring great adjustment and influence to the risk agent fees.Or to put?It is understood that there are three main ways of attorney fee: piecework fee, fee based on the amount of litigation and risk agency.Among them, the biggest difference between risk agency and other fees is that the client first does not pay or only pay less agency fees, such as winning the lawsuit, and then according to the legal documents to confirm a certain proportion of the creditor’s rights to pay the agent as a reward, if lost, the lawyer will not get fees.Wei Xiaojun, senior consultant of Dacheng Law Firm, has rich experience in matrimonial inheritance and family wealth management.He told Yinshi financial reporter that some clients in divorce cases will take the initiative to put forward “risk agency” to lawyers when discussing fees.In April 2006, according to the National Development and Reform Commission and the Ministry of Justice jointly issued the “measures for the administration of lawyers service charge” (hereinafter referred to as the “method”), article 11, involving property relationship of civil cases, the client was told that the government guidance price risk agency, still require them after law firm may execute risk agency fees,But marriage, inheritance and other cases are excluded.However, many people in the industry to the silver Persimmon financial reporters frankly, in reality, “prohibit in marriage, inheritance cases in the implementation of risk agent fees”, the implementation effect is not ideal.”For example, in divorce cases, some housewives have no source of income and cannot afford the lawyer’s fees for the time being, so they hope to pay the fees through risk agents according to the property acquired during divorce.”Several other family lawyers, who declined to be named, said some budget-conscious clients are also asking for risk agents after discovering they are better off than charging on a piece-by-piece basis.In fact, on marriage, inheritance cases whether to allow risk agents, the industry has been divided.Reporters learned that “negators” believe that marriage and inheritance cases according to the risk of agency fees is not conducive to maintaining family harmony, contrary to good customs and easy to cause moral hazard, is not conducive to social harmony and social public interests;And “must”, the risk of principal-agent contract agent only part involves the division of property in dispute, whether the marriage remove not risk agent content, in the divorce, inheritance, the case under the background of a gradual increase in property target, in addition to this kind of case is identity, its property dispute attribute and other civil and commercial cases have little difference, should be equally.Wei xiaojun told reporters that although the Measures stipulated that “marriage cases are not allowed to charge for risk agents”, the guidelines for Lawyers handling Marriage and Family Law business issued by the all China Lawyers Association in 2013 also emphasized this point.But in December 2014, the National Development and Reform Commission issued a Notice on liberalizing opinions on some service prices.According to the circular, marriage and family cases should also be subject to market-adjusted prices in principle.”After the National Development and Reform Commission issued a document, the Measures and Guidelines were not revised at the same time. In practice, people’s understanding is not the same, local management is strict and loose, and gradually formed a nationwide complicated marriage and inheritance case risk agency fee model.”Wei Xiaojun is blunt.Liu Jingyi, director and founding partner of Beijing Guozun Law Firm, made it clear to reporters that her law firm has internal regulations that it is not allowed to act as a risk agent for marriage cases.In property dispute cases after divorce, risk agency can be carried out in accordance with the property object fought for by the client.However, the reporter asked a number of marriage lawyers in the practice of the specific risk agent fee model and the operation process, the other party are inconvenient to answer.Should we ban it altogether, or should we do it on a whim?According to the newly issued Opinions, the scope of application of risk agency is strictly limited and criminal, administrative, state compensation, group litigation, marriage and inheritance cases are prohibited.And risk agency shall be implemented or disguised in cases requesting social insurance benefits, minimum living security benefits, alimony, upbringing, support, pension, relief funds, industrial injury compensation and labor remuneration.Three, head of the department in charge of relevant departments when a reporter asked, said the reason to make that clear, “because of the risk in the agent fee cases, lawyers finally a service charge of lawyers and eventually realize the rights and interests of the parties has certain relevance, therefore risk agency fees only apply to cases involving property relationship,Risk agency should not be practiced in criminal litigation cases involving criminal crimes, marriage cases involving personal relationships, inheritance cases and people’s livelihood cases, administrative litigation cases involving seeking relief from public power and state compensation cases.”Moreover, it is clearly pointed out in the Opinions that “if the provisions of the normative documents on lawyers’ service fees formulated by the National Development and Reform Commission and the Ministry of Justice before the issuance of the Opinions conflict with the provisions of the Opinions, the Opinions shall prevail”.”After the NDRC’s notice came out, many colleagues thought it was only a matter of time before the restrictions on risk agency in marriage and inheritance cases were officially lifted.Now it looks like it’s going backwards.”For this situation, Wei Xiaojun was surprised at the same time also expressed understanding.In terms of issuing agencies, compared with the Ministry of Justice and The National Development and Reform Commission in 2006, the State Administration of Market Regulation was newly added, which shows that the three departments have reached a consensus and a clear attitude.A marriage and family lawyer mentioned in particular, in fact, after accepting the risk of acting, lawyers not only face the risk of losing the lawsuit and not getting the agency fee, bear the cost of their own, but also may encounter the parties to win and distribute the property after standing in the opposite side of the lawyer, flip-side, do not perform the agreement and so on.”Lawyers who know they violate the rules of risk agency will not choose litigation. After all, putting such a thing on the table will not only make them unable to get agency fees, but also lead to administrative penalties and industrial sanctions.”However, some lawyers mentioned that marriage and inheritance cases clearly do not risk agency, which means that no matter the outcome, the parties have to bear fixed legal fees, which will be very disadvantageous to some parties with poor financial status.The parties who do not directly manage the joint property could have used risk agency to recover the property in divorce cases, but now they may have to compromise with the other party and bear the loss, considering the high legal fees to be paid in advance.In the interview process, some lawyers also suggested that we should not “apply one size fits all”, but establish a standard and principle according to different clients, and then make it more specific.In addition, in the process of service, attention should also be paid to improve the ability and efficiency of handling cases, and the key to avoid disputes is to choose a good client with good faith in the early stage.What impact will the implementation of the Opinions bring?If the issue of banning marriage and inheritance cases from risk agency is clearly controversial, then the upper limit of the maximum fee for risk agency can be said to be a big part of the adjustment in the Opinions.The Opinions set the upper limit for risk agency fees in a progressive way. According to the five grades of below 1 million yuan, 1 million to 5 million yuan, 5 million to 10 million yuan, 10 million to 50 million yuan, and more than 50 million yuan, the maximum fee proportion is 18%, 15%, 12%, 9%, 6%, respectively.Compared with the provisions of Article 13 of the Measures, the maximum amount of risk agency fees shall not be higher than 30% of the amount agreed in the fees contract.The guideline also calls for more investigation and punishment of illegal charges.Judicial administration department, market regulators to investigate and punish involves the vital interests of the people’s livelihood class complaints, lawyers service charge is not in accordance with the provisions, plain code marks a price, price fraud and to collect fees, illegal violation risk agency charges fees, respectively, by the market regulation and judicial administrative departments, within the scope of their respective responsibilities under the all China lawyers association to make administrative punishments and industry.The judicial administrative department should timely publicize the information of law firms and lawyers being punished for charging fees in violation of laws and regulations on the platform of lawyers’ integrity information publicity, and strengthen the effect of warning education.Wei Xiaojun believes that the above regulations are related to some judicial corruption cases that occurred some time ago. The main reason is that in recent years, some high risk agency fees have been charged too much. In order to obtain high risk agency fees, individual lawyers have transferred interests to judicial personnel and affected judicial activities in accordance with the law.Feng Yueping, a senior partner at Beijing Jingshi Law Firm, explained that in general, a high proportion of risk agency fees are charged in debt cases.”Some creditors are willing to pay more for legal services to increase their chances of getting their money back.”From the risk agent fee standard changes, Feng Yueping believes that the ceiling ratio is lowered and the price is clearly marked, releasing the signal of not encouraging high-risk agents, to a certain extent, can avoid disorderly competition between lawyers.But at the same time, lawyers may be discouraged.”How many more lawyers are willing to adopt the risk agency model when they take on high risks and don’t get the rewards they expected?”Feng Yueping predicted that if the upper limit of risk agent proportion is only 18%, it is estimated that there will be a certain proportion of lawyers are not willing to accept risk agent, only accept the mode of fixed lawyer fees, after all, the input-output ratio is low.Will matrimonial lawyers’ incomes plummet if the guidelines are implemented?In Wei xiaojun’s view, it will inevitably be affected, but it will not be particularly significant, after all, marriage and family legal services were previously fixed fees for the mainstream.At the same time, as long as the demand is there, the transaction will exist, but with a fixed fee model, some may turn to a less qualitative workaround.”In fact, our circle has been discussing the opinions for the past two days. The next step is to see how it will be implemented, and there may be difficulties in implementing it.”A lawyer said bluntly.This article is from Silver Persimmon Finance