General Engagement Terms
LEGAL REPRESENTATION BY ATTORNEYS
These General Engagement Terms apply to all agreements between the partnership of attorneys (hereinafter referred to as Attorneys) and their Principals (hereinafter referred to as Clients) regarding advice and counsel, information, litigation or other engagements (hereinafter referred to as Engagements), unless otherwise agreed in writing or required by law.
2. Subject of the Engagement
2.1. All Engagements are concluded between the Client and the Partnership of Attorneys. Should the Client request the assignment of specific Attorneys, the Partnership of Attorneys will take the Client’s request into consideration to the extent possible.
2.2. The subject of the Engagement is the agreed legal services, not a particular economic success. The Attorneys are authorized to enlist the expertise of third parties to perform work on the Engagement. The Client is to be consulted in advance in regards to additional costs associated with the activities performed by the third parties. The Attorneys are released from the restrictions of Section 181 German Civil Code [BGB].
2.3. The legal counsel and representation is provided exclusively according to German law. Tax consultancy and/or representation is not a component of the Engagement, unless such services are expressly included in the Engagement. It is the Client’s responsibility to commission third party experts (specialized attorneys for tax law, tax advisors, professional accountants/auditors) to review the effects of taxes on agreements and legal transactions under civil law. The Attorneys will inform the Client in due time, should the legal matter involve foreign jurisdictions.
2.4. Should the legal situation change during the Engagement the Attorneys will notify the Client of such changes, to the extent such changes affect the Engagement. Should the legal situation change after the delivery of the final professional statement, the Attorneys are not obligated to inform the Client regarding such changes or any consequences resulting therefrom.
2.5. Actions that relate to the Engagement and that are undertaken by one of several clients or are undertaken with respect to one or more clients apply equally to all Clients. This does not apply to the termination of the Engagement. Should the instructions or the interest of several Clients contradict each other, the Attorneys may withdraw from the Engagement.
3. ATTORNEYS LEGAL FEES
3.1. For the performance of the Engagement the Attorneys are entitled to the agreed remuneration. To the extent a fee agreement has not been entered into, remuneration is invoiced according to the Attorneys’ Remuneration Act [Rechtsanwaltsvergütungsgesetz]. The fees stated in the Attorneys’ Remuneration Act [Rechtsanwaltsvergütungs-gesetz] are calculated according to the value in dispute; such fees are standard as regards the attorney-client relationship.
The remuneration and any other reimbursement claims for the Attorneys’ costs and expenses become due immediately and payable by the Client upon the receipt of invoice. The Client is obligated to pay a reasonable retainer upon request of the Attorneys. This also applies if claims to reimbursement of costs and expenses exist against legal expenses insurance, the opposing party or third parties. The Attorneys may charge the statutory default interest, if payment is not effected within a period of thirty days after invoicing.
3.2. In regard to labor disputes, a claim to reimbursement of attorney fees or other costs does not exist for out-of-court settlements or the court of first instance (trial court). In general, this also applies to costs arising from proceedings for jurisdiction over non-contentious matters. In other legal disputes, winning the case does not always guarantee that the losing party will bear the incurred costs.
3.3. The Client assigns to the Attorneys as security all claims to reimbursement of costs and expenses against the opposing party, the Court Cashier’s Office or third parties. The Attorneys accept the assignment and undertake to release these assigned claims at the request of the Client, to the extent the total claims assigned exceed the Attorneys’ fee claim by 20%. The Attorneys are authorized to notify the payor.
3.4. The Attorneys are authorized to offset outstanding compensation claims, also from other matters, against incoming payments, as far as these are due and to the extent legally permissible.
3.5. As regards the involvement of third party experts the Attorneys are authorized to agree to a separate compensation agreement between the Attorneys and the third party experts. The Attorneys’ claims against the Client remain unaffected by such separate agreement.For the performance of the Engagement the Attorneys are entitled to the agreed remuneration. To the extent a fee agreement has not been entered into, remuneration is invoiced according to the Attorneys’ Remuneration Act [Rechtsanwaltsvergütungsgesetz]. The fees stated in the Attorneys’ Remuneration Act [Rechtsanwaltsvergütungs-gesetz] are calculated according to the value in dispute; such fees are standard as regards the attorney-client relationship.
DUTIES OF THE ATTORNEYS
4. Duty to take Due Care (Due Diligence) of the Attorneys
The Attorneys are obligated to diligently carry out the Engagement in accordance with the German Attorneys’ Act [Bundesrechtsanwaltsordnung], the existing laws and the Client’s instructions. The Attorneys will keep the Client apprised of the progress of the Engagement, as per the scope of the agreement. Legal proceedings are only instituted with the consent of the Client, unless the Engagement provides otherwise.
5. Attorneys’ Liability
5.1. The attorneys’ liability for damage claims of any kind, be it under several liability or joint and several liability, is limited to claims caused by negligent acts. The maximum liability per claim is € 1,500,000.00 and the maximum liability per insurance year is € 3,000,000.00 according to the professional liability insurance policies (Errors & Omissions Liability Insurance Policies) taken out by the attorneys.
5.2. The Attorneys are liable to third parties only if a separate liability agreement has been entered into. To the extent a separate agreement is concluded the limitation on liability also applies to third parties.
5.3. The above limitation on liability does not apply to injuries to life, body or health resulting from willful or negligent breach of duty on the part of the Attorneys or their staff.
5.4. The Attorneys provide their clients the option to take out a supplementary insurance policy to cover any higher risks. The client bears any costs arising from such supplementary insurance policy.
5.5. If a uniform damage arises from several breaches of duty this is considered to be one claim. A claim encompasses all consequences from a breach of duty without taking whether the damages occurred in one year or in a number of successive years into account. In this case multiple acts or omissions of acts based on a similar source of error or on a source of error of an equivalent nature are deemed to be a uniform breach of duty, if the relevant matters are legally or economically connected to one another.
5.6. In addition to the partnership, any personal liability for professional mistakes is borne solely by the partners assigned to the respective engagement; such liability does not apply to contributions of minor importance.
6. Duty to observe Secrecy
6.1. The Attorneys are obligated to observe secrecy as stipulated by the professional rules governing the practice of law. This obligation applies to all information that a client provides to the Attorneys or otherwise becomes known within the scope of the Engagement. To this extent the Attorneys have the right to refuse to give evidence / testify. The Attorneys have bound their employees to comply with the duty to observe secrecy.
6.2. The Attorneys may only disclose information on the Engagement and its existence to third parties, in particular, to government agencies, if the Client has released the Attorneys from their duty to observe secrecy prior to such disclosure. Reports, expert opinions and other written communication will only be provided to third parties by the Attorneys with the Client’s prior consent. Unless otherwise instructed, the Attorneys do not consider individuals the Client included in meetings or who conduct correspondence on behalf of the Client, to be third parties.
7. Trust Account
The Attorneys will keep incoming payments made out to the Client in an attorney trust account. At the written request of the Client, the Attorneys will make disbursements without undue delay according to the Client’s instructions, subject to the provisions of Section 3.
8. Data Processing
8.1. The attorneys are authorised to collect, store and process personal data entrusted to them or have entrusted personal data processed by third parties. Within the scope of an engagement, the complete personal identification data, including valid email address, Fax number, telephone number (Public Switched Telephone Network and / or mobile communication), are collected, as well as all information that is necessary to enforce or defend the client’s rights within the scope of an engagement. The purpose of this data collection is the identification of the client and to ensure adequate legal advice and representation. In addition, this data collection also serves the purpose to conduct correspondence and issue invoices, as well as to process any liability claims or to enforce any other claims. Accordingly, data is ultimately stored and processed exclusively for the purposes to perform professional legal services under the engagement. Disclosure of this data for advertising purposes is excluded.
8.2. Data is processed at the client’s request and is required in accordance with Art. 6 Para 1 S. 1 lit. b GDPR for the aforementioned purposes to adequately perform the engagement and to mutually meet the obligations under the engagement agreement. Personal data that is collected within the scope of the engagement is stored until the statutory obligation for attorneys to keep records (6 years after the end of the calendar year during which the engagement ended) has expired and erased thereafter, unless a longer storage period is required according to Art. 6 Para 1 S. 1 lit. c GDPR based on tax or commercial law retention or documentation obligations (arising from Commercial Law, Penal Code or Tax Code provisions) or the client provided its consent to the storage of this data exceeding the storage / retention periods above according to Art. 6 Para 1 S. 1 lit. a GDPR.
8.3. Personal data is not transferred to third parties for purposes other than the purposes listed below. To the extent transfer of personal data is required for the processing of contractual relationships with clients in accordance with Art. 6 Para 1 S. 1 lit. b GDPR, personal client data is disclosed to third parties. This includes, in particular, disclosure to opposing parties and their representatives (in particular their attorneys), as well as to courts and other public authorities for correspondence purposes and to enforce or defend the client’s rights. Third parties may only use this disclosed data for the indicated purposes. The attorney–client privilege remains unaffected. Data that is subject to the attorney–client privilege is only disclosed to third parties in coordination with the client.
8.4. According to the GDPR, the client has the following rights regarding the processing of data:
- according to Art. 7 Para 3 GDPR, the client has the right to withdraw its consent provided to the attorneys at any time. This withdrawal has the consequence that processing of data that is based on this consent is not permitted to continue in the future;
- according to Art. 15 GDPR the client has the right to request information on the personal data processed by the attorneys. The client may, in particular, request information on processing purposes, the category of personal data, the categories of recipients to which client data was or is disclosed, planned period for which the personal data will be stored, the existence of a right to rectification, erasure, restriction of processing or objection, the existence of a right to lodge a complaint, source of the data, if data was not collected by the attorneys, as well as the existence of automated decision-making, including profiling and, if necessary, meaningful information about its details;
- according to Art. 16 GDPR the client has the right to demand prompt rectification of inaccurate personal data or completion of personal data stored with us;
- according to Art. 17 GDPR the client has the right to demand erasure of personal data stored with the attorneys, unless processing is necessary for exercising the right of freedom of expression and information, for compliance with a legal obligation, for reasons of public interest or for the establishment, exercise or defence of legal claims;
- according to Art. 18 GDPR the client has the right to demand restriction of processing of personal data, if the accuracy of personal data is contested, the processing is unlawful and the client opposes the erasure of this personal data and the data is no longer needed, but the client needs this data for the establishment, exercise or defence of legal claims or the client objected to processing pursuant to Article 21 GDPR;
- according to Art. 20 GDPR the client has the right to receive personal data the client provided to the attorneys, in a structured, commonly used and machine-readable format or to demand the transmission of this data to another controller;
- according to Art. 77 GDPR the client has the right to lodge a complaint with a supervisory authority. For this purpose, the client may, in general, contact the supervisory authority located at its customary residence or work place or the seat of the attorneys.
8.5. Right to object – if the client’s personal data is processed based on justified interests according to Art. 6 Para 1 S. 1 lit. f GDPR, the client has the right according to Art. 21 GDPR to object to the processing of its personal data on grounds relating to a particular situation of the client. An email to firstname.lastname@example.org is sufficient to exercise this right to object.
8.6. The attorneys take all appropriate and reasonable measures to protect this data against unauthorized third-party access. The attorneys will take the appropriate actions to ensure that data protection measures are kept current in accordance with the state of technology.
8.7. The responsible partner (controller) for the processing of data is Mr. Christian Faber, attorney, data protection officer is Ms. Raphaela Di Prato, attorney. Both may be reached using the law firm’s general contact details.
9. Record Management
9.1. The Attorneys do not keep any original documents in the files, unless the presentation of originals is required in exceptional cases.
9.2. After the termination of the Engagement the Attorneys will keep the documents and correspondence that Attorneys received or created incidental to the Engagement for at least 6 months.
9.3. Upon the Client’s request the Attorneys will return all documents it received from the Client or third parties, which the Client does not already have in its possession either as an original or a copy, provided the fee and expense invoices have been settled.
9.4. The Attorneys are authorized to copy and keep copies of all documents. Record management and storage in electronic form or in another storage form is permitted.
10. Anti-Money Laundering Provisions
Pursuant to the Money Laundering Act, the Attorneys are obligated to undertake specific reviews and in case of suspicion of violations against the Money Laundering Act the Attorneys are obligated by law to notify the competent authorities. The Client will not be notified of such action.
DUTIES OF THE CLIENT
11. Information and Duty to provide Information
11.1. The Client will fully and truthfully provide the Attorneys with all facts, data and documents incidental to the Engagement without any special request in due time. Such information is to be presented in a structured and orderly fashion. This also applies to events, circumstances and documents, which become known during the course of the Engagement.
11.2. In regard to the Engagement, the Client will only contact courts, government agencies, the opposing party or other involved persons in coordination with the Attorneys during the course of the Engagement.
11.3. The Client will inform the Attorney of address, telephone number, fax number, e-mail address or similar changes, as well as of any longer absences or other circumstances under which the Client would become temporarily unavailable without undue delay.
12. Review of Attorney Documents
The Client will promptly review the facts presented in all document drafts provided by the Attorneys carefully to ensure that the facts contained in the documents are truthful and complete. The Client will inform the Attorney immediately, if the reviewed document can be provided to third parties.
13. Legal Expenses Insurance
To the extent the Attorneys are also engaged to conduct correspondence with the legal expenses insurance company, the Attorneys are expressly released from the duty to observe secrecy in relation to the legal expenses insurance company. In this case the Client ensures that the insurance contract with the legal expenses insurance company is in good standing, that there are no premiums in arrears and that no other Attorneys have been retained in the same matter.
14. Communication via Telephone and E-Mail
14.1. To the extent the Client provides the Attorney with a fax connection or e-mail address, the Client agrees that the Attorneys may send information relating to the Engagement to the Client via fax and email, unless the arrangement is revoked or the Client expressly provides otherwise. The Client ensures that only the Client or individuals authorized by the Client have access to the fax connection and e-mail address and that the Client checks incoming faxes and e-mails regularly. The Client is obligated to notify the Attorney, if restrictions apply, such as e.g. faxes are only to be sent with prior notification.
14.2. The Client is aware of the fact that in the case of unencrypted emails only limited confidentiality is guaranteed. Should the Client request the use of signature or encryption technology, the Client is to inform the Attorneys accordingly.
15. CopyrightCommunication via Telephone and E-Mail
The Attorneys retain the copyrights to all documents (briefs, expert opinions, statements, reports etc.) drafted by the Attorneys. The Client is authorized to use such documents to the extent such documents pertain to the Engagement. Disclosure to any third party requires the written consent of the Attorneys, unless consent to disclose such documents to a certain third party is contained in the Engagement Agreement.
16. Notes for consumers regarding dispute resolution
We are, in general, not willing and not obligated to participate in a dispute resolution procedure before a consumer arbitration body. In spite of this principle, we may be willing in individual cases to participate in such procedure based on our express written consent. The competent consumer arbitration body for disputes arising from the engagement relationsship up to a value of Euro 50,000 is the arbitration body of legal professionals [Schlichtungsstelle der Rechtsanwaltschaft], Rauchstraße 26, D-10787 Berlin, www.s-d-r.org. In addition, the EU provides a platform for out-of-court online dispute resolution, http://ec.europa.eu/consumers/odr/.
17. Final Provisions
17.1. Amendments and supplements to these contractual arrangements require the written from to be effective. The invalidity or ineffectiveness of a provision does not affect the validity or effectiveness of the other Agreement components. The Attorneys and the Client undertake to replace an invalid or ineffective provision with a valid or effective provision that most closely reflects the economic intent of the invalid or ineffective provision and best reflects the purpose of the Agreement
17.2. This Agreement is governed exclusively by German law. The place of performance and place of jurisdiction is the seat of the commissioned Attorneys’ office, if the Client is a businessman or a person having an equivalent legal status.