General Terms and Conditions for Attorneys
1. Area of Application
1.1. The Terms and Conditions shall apply to all activities and judicial, official and extrajudicial acts of representation carried out in the course of a contractual relationship existing between the Attorney and the Client (hereinafter also referred to as ‘Mandate’).
1.2. The Terms and Conditions shall also apply to new mandates, unless otherwise agreed in writing.
2. Mandate and Power of Attorney
2.1. The Attorney shall be entitled and obliged to represent the Client to the extent that this is necessary and expedient for the fulfilment of the Mandate. If the legal situation changes after the end of the Mandate, the Attorney shall not be obliged to inform the Client of such changes or the resulting consequences.
2.2. The Client shall sign a written power of attorney vis-à-vis the Attorney upon request. This power of attorney may be directed to the performance of individual, precisely defined or all possible legal transactions or legal acts.
3. Principles of Representation
3.1. The Attorney shall conduct the representation entrusted to her in accordance with the law and represent the rights and interests of the Client vis-à-vis everyone with diligence, loyalty and conscientiousness.
3.2. In principle, the Attorney shall be entitled to perform her services at her own discretion and to take all steps, in particular to use means of attack and defence in any way, as long as this does not contradict the Client's mandate, her conscience or the law.
3.3. If the Client issues an instruction to the Attorney, compliance with which is contrary to the law or other rules of professional conduct (e.g. the ‘Guidelines for the Practice of the Legal Profession’ [RL-BA 2015] or the judgement practice of the Appellate and Disciplinary Senates for Attorneys and Trainee Attorneys at the Supreme Court and the former Supreme Appellate and Disciplinary Commission for Attorneys and Trainee Attorneys [OBDK]) or is incompatible with the principles of proper professional practice of the Attorney, the Attorney must reject the instruction. If the Attorney considers instructions to be inappropriate or even disadvantageous for the Client, the Attorney shall inform the Client of the potentially disadvantageous consequences before carrying them out.
3.4. In the event of imminent danger, the Attorney shall also be entitled to take or refrain from taking an action not expressly covered by the instruction given or an action contrary to an instruction given if this appears to be urgently required in the Client's interest.
4. Information and Cooperation Obligations of the Client
4.1. After the Mandate has been granted, the Client shall be obliged to inform the Attorney immediately of all information and facts that could be of significance in connection with the execution of the Mandate and to make all necessary documents and evidence available. The Attorney shall be entitled to assume that the information, facts, documents, records and evidence are correct, unless their incorrectness is obvious. The Attorney shall endeavour to ensure the completeness and accuracy of the facts by questioning the Client and/or by other suitable means. With regard to the accuracy of supplementary information, the second sentence of Section 4.1 shall apply.
4.2. During the term of the Mandate, the Client shall be obliged to notify the Attorney of any changed or newly arising circumstances that may be of significance in connection with the performance of the Mandate as soon as they become known.
4.3. If the Attorney acts as the drafter of the contract, the Client shall be obliged to provide the Attorney with all information necessary for the self-calculation of the real estate transfer tax, registration fee and real estate income tax. If the Attorney performs the self-calculations on the basis of the information provided by the Client, the Attorney shall be released from any liability towards the Client in this regard. However, the Client shall be obliged to indemnify and hold the Attorney harmless in the event of financial disadvantages if the Client's information proves to be incorrect.
4.4. On the basis of the statutory provisions on the prevention of money laundering and terrorist financing, the Attorney shall be obliged to carry out certain auditing procedures in the case of transactions prone to money laundering. These include, for example, determining the parties, the beneficial owner(s) and their identity. They must also check the purpose of the transaction and, if necessary, the origin of the funds. In the case of such transactions, the client is obliged to provide the Attorney with all information and corresponding evidence requested in this context in full and truthfully without delay. This shall also apply if the Attorney requests such information on behalf of an involved bank.
5. Confidentiality Obligations and exeptions thereto, conflict of interest
5.1 The Attorney shall be obliged to maintain confidentiality with regard to all matters entrusted to her and all facts that otherwise become known to her in her professional capacity, the confidentiality of which is in the interest of her client.
5.2 Insofar as this is necessary for the pursuit of claims of the Attorney (in particular claims for the Attorney's fee) or for the defence of claims against the Attorney (in particular claims for damages of the Client or third parties against the Attorney), the Attorney shall be released from the obligation of confidentiality.
5.3 The Client is aware that the Attorney is obliged by law in certain cases to provide information or reports to authorities without having to obtain the Client's consent; in particular, the Client is informed of the provisions on money laundering and terrorist financing as well as the provisions of tax law (e.g. Account Register and Account Inspection Act, GMSG, etc.).
5.4 The Client may release the Attorney from the obligation of confidentiality at any time. The release from confidentiality by her Client shall not release the Attorney from the obligation to examine whether her statement is in the interest of her Client. If the Attorney acts as a mediator or collaborative lawyer, she must exercise her right to confidentiality despite her release from the duty of confidentiality.
6. Reporting Obligations of the Attorney
The attorney shall inform the Client orally or in writing to an appropriate extent about the actions taken by her in connection with the Mandate.
7. Sub-Authorisation and Substitution
It is agreed that the Attorney may be represented by another Attorney (sub-authorisation). In the event of temporary prevention, the Attorney may, pursuant to § 14 RAO, pass on the mandate or individual partial acts to another Attorney (substitution). In the event of sub-authorisation or substitution to another Attorney, the substitute shall only be liable for fault in selection.
8. Fees
8.1 Unless otherwise agreed, the Attorney shall be entitled to a reasonable fee.
8.2 Even if a reduced fee compared to the RATG has been agreed, the Attorney shall also be entitled to the reimbursement of costs claimed by the opposing party in excess of this fee, insofar as this can be recovered.
8.3 If the Client or the Client's sphere sends the Attorney an e-mail that is not addressed to her, but is only sent to her cc or bcc, the Attorney shall not be obliged to read this mailing without an express order to do so. If the Attorney reads the e-mail sent, she shall be entitled to a fee for this as for comparable services pursuant to RATG or AHK.
8.4 Value added tax at the statutory rate, the necessary and reasonable expenses (e.g. for travelling expenses, telephone, fax, copies) and the cash expenses paid on behalf of the Client (e.g. court fees) shall be added to the fee due to/agreed with the Attorney.
8.5 The Client acknowledges that any estimate made by the Attorney regarding the amount of the anticipated fee that is not expressly designated as binding shall be non-binding and shall not be regarded as a binding cost estimate, because the extent of the services to be provided by the Attorney cannot, by its nature, be reliably assessed in advance.
8.6 The Client shall not be invoiced for the time and effort required for invoicing and preparing the fee notes. However, this shall not apply to the expenses incurred for the translation of service specifications into a language other than German at the Client's request. Unless otherwise agreed, the expenses for letters to the Client's auditor written at the Client's request, in which, for example, the status of pending cases, a risk assessment for the formation of provisions and/or the status of outstanding fees as of the balance sheet date are stated, shall be charged.
8.7 The Attorney shall be entitled at any time, but in any case on a quarterly basis, to submit fee notes and to demand fee advances.
8.8 If the Client is in default of payment of all or part of the fee, the Client shall pay the Attorney default interest at the statutory rate of 4%. If the Client is responsible for the delay in payment, the statutory interest rate shall be 9.2 percentage points above the respective base interest rate, and the Client shall also compensate the Lawyer for any additional damage actually incurred. Any further statutory claims (e.g. § 1333 ABGB) shall remain unaffected.
8.9 All court and official costs (cash outlays) and expenses (e.g. due to purchased third-party services) incurred in the fulfilment of the Mandate may - at the Attorney's discretion - be passed on to the Client for direct settlement.
8.10. If more than one Client places an order in a legal matter, they shall be jointly and severally liable for all resulting claims of the Attorney.
8.11. Claims for reimbursement of costs of the Client against the opposing party are hereby assigned to the Attorney in the amount of the Attorney's fee claim as soon as they arise. The Attorney shall be entitled to notify the opposing party of the assignment at any time.
9. Liability of the Attorney
9.1 The Attorney's liability for faulty advice or representation shall be limited to the sum insured available for the specific case of damage, but shall at least amount to the sum insured specified in § 21a RAO as amended. This is currently EUR 400,000 (in words: four hundred thousand euros) and in the case of law firms in the form of a limited liability company EUR 2,400,000 (in words: two million four hundred thousand euros).
9.2 The maximum amount applicable pursuant to Clause 9.1. shall include all claims against the Attorney for faulty advice and/or representation, in particular claims for damages and price reduction. This maximum amount shall not include any claims of the Client to reclaim the fee paid to the Attorney. Any deductibles shall not reduce the liability. The maximum amount applicable pursuant to clause 9.1. refers to one insured event. If there are two or more competing injured parties (clients), the maximum amount for each individual injured party shall be reduced in proportion to the amount of the claims.
9.3 If a law firm is commissioned, the limitations of liability pursuant to sections 9.1. and 9.2. shall also apply in favour of all lawyers working for the law firm (as its partners, managing directors, employed lawyers or in any other capacity).
9.4 The Attorney shall only be liable for third parties commissioned with individual partial services (in particular external experts) who are neither employees nor partners in the context of the provision of services in the event of fault in selection.
9.5 The Attorney shall only be liable to her Client, not to third parties. The Client shall be obliged to expressly inform third parties who come into contact with the Attorney's services due to the Client's fault of this fact; the Attorney shall be fully indemnified and held harmless in this respect.
9.6 The Attorney shall only be liable for knowledge of foreign law if this has been agreed in writing or if the Client has undertaken to examine foreign law. Foreign law shall also include the law of EU member states.
10. Limitation / Preclusion
Unless a shorter limitation or preclusion period applies by law, all claims against the Attorney shall lapse if they are not asserted in court by the Client within six months of the time at which the Client becomes aware of the damage and the person causing the damage or of the event otherwise giving rise to the claim, but at the latest after the expiry of five years after the conduct (breach) causing the damage (giving rise to the claim).
11. Legal Expenses Insurance of the Client
11.1 If the Client has legal expenses insurance, the Client shall notify the Attorney thereof without delay and submit the necessary documents (if available).
11.2 The disclosure of legal expenses insurance by the Client and the obtaining of legal expenses cover by the Attorney shall not affect the Attorney's fee claim against the Client and shall not be deemed to be the Attorney's agreement to be satisfied with the fee paid by the legal expenses insurance.
11.3 The Attorney shall not be obliged to claim the fee directly from the legal expenses insurance, but may demand the entire fee from the Client.
12. Termination of the Mandate
12.1 The Mandate may be terminated by the Attorney or the Client at any time without notice and without giving reasons. The Attorney's fee claim shall remain unaffected.
12.2 In the event of cancellation by the Client or the Attorney, the Attorney shall continue to represent the Client for a period of 14 days insofar as this is necessary to protect the Client from legal disadvantages. This obligation shall not apply if the Client cancels the mandate and expresses that he/she does not wish the Attorney to continue working for him/her.
13. Duty to Return
13.1 Upon termination of the Client-Attorney Relationship, the Attorney shall return the originals of the documents belonging to her at the Client's request. The Attorney shall be entitled to retain copies of these documents.
13.2 If the Client requests further documents (copies of documents) after the end of the mandate, which she has already received in the course of the mandate, the costs shall be borne by the Client.
13.3 The Attorney shall be obliged to retain the files for a period of five years from the end of the mandate. If longer statutory periods apply for the duration of the retention obligation, these shall be complied with. The client agrees to the destruction of the files (including original documents) after expiry of the retention obligation.
14. Choice of Law and Place of Jurisdiction
14.1 The Terms and Conditions and the client-attorney relationship governed by them shall be subject to Austrian substantive law with the exception of the conflict of law rules.
14.2 For legal disputes arising from or in connection with the contractual relationship governed by the Terms and Conditions, including disputes about its validity, the exclusive jurisdiction of the competent court at the registered office of the Attorney shall be agreed, unless this is contrary to mandatory law. However, the Attorney shall also be entitled to bring claims against the Client before any other court in Austria or abroad in whose jurisdiction the Client has its registered office, place of residence, a branch or assets.
15. Final Provisions
15.1 Amendments or supplements to these Terms and Conditionsmust be made in writing in order to be valid.
15.2 Declarations of the Attorney to the Client shall in any case be deemed to have been received if they are sent to the address provided by the Client when the Mandate was granted or to the changed address communicated in writing thereafter. However, unless otherwise agreed, the Attorney may correspond with the Client in any way she deems appropriate, in particular by e-mail to the e-mail address that the Client provides to the Attorney for the purpose of communication. If the Client sends e-mails to the Attorney from other e-mail addresses, the Attorney may also communicate with the Client via these e-mail addresses. Declarations to be made in writing in accordance with these Terms and Conditions of Engagement may also be made by e-mail, unless otherwise stipulated. Unless otherwise instructed by the Client in writing, the Attorney shall be authorised to conduct e-mail correspondence with the Client in unencrypted form. The Client declares to be informed about the associated risks (in particular access, confidentiality, modification of messages in the course of transmission) and about the possibility of using Context and to agree, in knowledge of these risks, that the e-mail traffic is not carried out in encrypted form.
15.3 The Client shall be informed about the purposes and manner of the processing of their personal data by the Attorney by means of separate data protection information.
15.4 The invalidity of one or individual provisions of these Terms and Conditions or of the contractual relationship governed by the Terms and Conditions shall not affect the validity of the remaining agreement. The contracting parties undertake to replace the invalid provision(s) with a provision that comes as close as possible to the economic effect of the invalid provision(s).