1. Scope
1.1. The terms and conditions of engagement apply to all activities and judicial/administrative as well as extrajudicial acts of representation performed in the course of a contractual relationship (hereinafter also referred to as “mandate”) between the attorney (hereinafter referred to simply as “attorney”) and the client.
1.2. The terms and conditions of engagement also apply to new mandates, unless otherwise agreed in writing.
2. Assignment and power of attorney
2.1. The attorney is entitled and obligated to represent the client to the extent necessary and expedient for the fulfillment of the mandate. If the legal situation changes after the end of the mandate, the attorney is not obligated to inform the client of any changes or resulting consequences.
2.2. Upon request, the client shall sign a written power of attorney for the attorney. This power of attorney may be directed at 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 him in accordance with the law and shall represent the rights and interests of the client vis-à-vis everyone with diligence, loyalty, and conscientiousness.
3.2. The attorney is generally entitled to perform his services at his own discretion and to take all necessary steps, in particular to use means of attack and defense in any manner, as long as this does not conflict with the client’s instructions, his conscience, or the law.
3.3. If the client gives the attorney an instruction whose compliance would be incompatible with the principles of proper professional conduct based on law or other professional regulations (e.g., the “Guidelines for the Practice of Law” [RL-BA 2015] or the case law of the Appeals and Disciplinary Senates for Lawyers and Trainee Lawyers at the Supreme Court and the former Supreme Appeals and Disciplinary Commission for Lawyers and Trainee Lawyers [OBDK]), the attorney must refuse such instruction. If, in the attorney’s opinion, instructions are impractical or even detrimental to the client, the attorney shall inform the client of the potentially adverse consequences before carrying them out.
3.4. In cases of imminent danger, the attorney is entitled to take or refrain from taking actions not expressly covered by the assignment or contrary to a given instruction if this appears urgently necessary in the client’s interest.
4. Client's duties to provide information and cooperate
4.1. After the mandate has been issued, the client is obliged to immediately provide the attorney with all information and facts that could be relevant to the execution of the mandate and to make all necessary documents and evidence available. The attorney is entitled to assume that the information, facts, documents, records, and evidence are accurate, unless their inaccuracy is obvious. The attorney shall endeavor to ensure the completeness and accuracy of the facts by specifically questioning the client and/or other appropriate means. The second sentence of section 4.1 applies to the accuracy of supplementary information.
4.2. During the term of the mandate, the client is obliged to inform the lawyer immediately of any changed or new circumstances that could be relevant to the execution of the mandate as soon as they become known.
4.3. If the lawyer acts as a contract drafter, the client is obliged to provide the lawyer with all information necessary for the self-calculation of the real estate transfer tax, registration fee, and real estate income tax. If the lawyer makes the self-calculations on the basis of the information provided by the client, he is in any case released from any liability towards the client. The client, on the other hand, is obliged to indemnify and hold the attorney harmless in the event of financial losses should the client's information prove to be incorrect.
5. Confidentiality obligation, conflict of interest
5.1. The lawyer is obliged to maintain confidentiality regarding all matters entrusted to him and all facts that become known to him in his professional capacity, the confidentiality of which is in the interest of his client.
5.2. The lawyer is entitled to assign all employees to handle matters within the framework of applicable laws and guidelines, provided that these employees have been demonstrably instructed regarding their obligation to maintain confidentiality.
5.3. The attorney shall only be released from the duty of confidentiality to the extent necessary to pursue claims of the attorney (in particular claims for the attorney's fees) or to defend against claims against the attorney (in particular claims for damages by the client or third parties against the attorney).
5.4. The client is aware that, in some cases, the attorney is obliged by law to provide information or reports to authorities without having to obtain the client's consent; in particular, reference is made to the provisions on money laundering and terrorist financing as well as to provisions of tax law (e.g., the Account Register and Account Inspection Act, GMSG, etc.).
5.5. The client may release the attorney from the obligation of confidentiality at any time. The release from confidentiality by his client does not relieve the attorney of the obligation to check whether his statement is in the interest of his client. If the attorney acts as a mediator, he must exercise his right to confidentiality despite his release from the obligation of confidentiality.
5.6. The lawyer must examine whether the execution of a mandate poses a risk of a conflict of interest within the meaning of the provisions of the Lawyers' Code of Conduct.
6. Lawyer's duty to report
The lawyer must inform the client to an appropriate extent, either verbally or in writing, of the actions he has taken in connection with the mandate.
7. Sub-authorization and substitution
The lawyer may be represented by a trainee lawyer working for him or another lawyer or his authorized trainee lawyer (sub-authorization). If prevented from attending, the lawyer may pass on the assignment or individual parts of it to another lawyer (substitution).
8. Fees
8.1. Unless otherwise agreed, the lawyer is entitled to a reasonable fee.
8.2. Even if a flat fee or hourly fee has been agreed, the lawyer shall be entitled to at least the amount of costs recovered from the opposing party in excess of this fee, insofar as this can be collected, otherwise the agreed flat fee or hourly fee.
8.3. If the client or someone associated with the client sends the lawyer an email for information purposes, the lawyer is not obliged to read this email without an express request to do so. If the lawyer reads the email sent, he is entitled to remuneration for this in accordance with an express agreement for comparable services or in accordance with the RATG or AHK.
8.4. The fee due to/agreed with the lawyer shall be increased by the statutory value added tax, the necessary and reasonable expenses (e.g., for travel, telephone, fax, copies), and the cash expenses paid on behalf of the client (e.g., court fees).
8.5. The client acknowledges that any estimate made by the attorney regarding the amount of the expected fee that is not expressly designated as binding is non-binding and is not to be regarded as a binding cost estimate (within the meaning of § 5 (2) KSchG), because the extent of the services to be provided by the attorney cannot, by their nature, be reliably assessed in advance.
8.6. The client shall not be charged for the time and effort involved in billing and preparing fee notes. However, this does not apply to the time and effort involved in translating service specifications into a language other than German at the client's request. Unless otherwise agreed, the costs incurred for letters written at the client's request to the client's auditor, in which, for example, the status of pending cases, a risk assessment for the creation of provisions, and/or the status of outstanding fees as of the reporting date are stated, will be charged.
8.7. The attorney is entitled to issue fee notes and demand advance payments at any time, but at least once a month.
8.8. A fee note sent to the client and duly itemized shall be deemed approved if and to the extent that the client does not object in writing within one month (the date of receipt by the attorney being decisive) of receipt.
8.9. If the client defaults on payment of all or part of the fee, they shall in any case pay the attorney default interest at a rate of 1.5% per month. If the client is responsible for the default in payment, they shall also compensate the attorney for any additional actual damages incurred. Any further legal claims (e.g., § 1333 ABGB) remain unaffected.
8.10. All court and administrative costs (cash expenses) and expenses (e.g., for purchased third-party services) incurred in the performance of the mandate may be forwarded to the client for direct payment at the attorney's discretion.
8.11. If an order is placed by several clients in a legal matter, they shall be jointly and severally liable for all claims of the attorney arising therefrom.
8.12. The client's claims for reimbursement of costs 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 is entitled to notify the opposing party of the assignment at any time.
8.13. For the purpose of collecting outstanding fee claims, the attorney is entitled to carry out personal searches in the land register within the meaning of § 6 (2) of the Land Register Conversion Act or to have such searches carried out on his behalf within the meaning of § 42c RL-BA. This authorization shall also apply in the absence of an enforceable monetary claim. Any higher costs incurred by third parties shall in any case be payable to the attorney. The attorney is authorized to post incoming third-party funds to outstanding fee components. Third-party funds shall in any case only be paid out after outstanding fee components have been covered.
9. Liability of the attorney
9.1. The lawyer's liability for incorrect advice or representation is limited to the insurance sum available for the specific case of damage, but shall be at least equal to the insurance sum specified in § 21a RAO as amended. This is currently €400,000 (in words: four hundred thousand euros) and, in the case of law firms in the form of a limited liability company, €2,400,000 (in words: two million four hundred thousand euros).
9.2. The maximum amount applicable in accordance with Section 9.1 covers all claims against the lawyer for incorrect advice and/or representation, such as, in particular, claims for damages and price reductions. This maximum amount does not include claims by the client for reimbursement of fees paid to the lawyer. Any deductibles do not reduce the liability. The maximum amount applicable in accordance with Section 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. When a law firm is commissioned, the limitations of liability pursuant to Sections 9.1 and 9.2 shall also apply in favor of all attorneys working for the firm (as its partners, managing directors, employed attorneys, or in any other capacity).
9.4. The attorney shall be liable for third parties (in particular external experts) commissioned with individual partial services within the scope of the provision of services with the client's knowledge, who are neither employees nor shareholders, only in the event of negligence in selection.
9.5. The lawyer shall only be liable to his client, not to third parties. The client is obliged to expressly inform third parties who come into contact with the lawyer's services due to the client's involvement of this circumstance.
9.6. The lawyer shall only be liable for knowledge of foreign law if this has been agreed in writing or if he has offered to examine foreign law. EU law shall never be considered foreign law, but the law of the member states shall be considered foreign law.
10. Limitation period/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 date on which the client becomes aware of the damage and the person responsible for it or of the event giving rise to the claim, but at the latest after three years have elapsed since the conduct (infringement) causing the damage (giving rise to the claim).
11. Client's legal expenses insurance
11.1. If the client has legal expenses insurance, they must notify the lawyer immediately and submit the necessary documents (if available). Irrespective of this, however, the lawyer is also obliged to obtain information on their own initiative as to whether and to what extent legal expenses insurance exists and to apply for legal expenses cover.
11.2. The disclosure of legal expenses insurance by the client and the obtaining of legal expenses coverage by the attorney shall not affect the attorney's fee claim against the client and shall not be construed as the attorney's agreement to accept the benefits provided by the legal expenses insurance as payment of his fees.
11.3. The lawyer is not obliged to claim the fee directly from the legal expenses insurer, but may demand the entire fee from the client.
12. Termination of the Mandate
12.1. The mandate may be terminated by the lawyer or the client at any time without notice and without giving reasons. The lawyer's fee claim remains unaffected by this.
12.2. In the event of termination by the client or the attorney, the attorney shall continue to represent the client for a period of 14 days to the extent necessary to protect the client from legal disadvantages. This obligation shall not apply if the client revokes the mandate and expresses that he does not wish the attorney to continue to act on his behalf.
12.3. The client relationship shall be deemed to have ended upon completion of the services to be provided by the attorney as agreed. In the case of a permanent representation relationship, the client relationship ends if more than twelve months have passed since the attorney was last expressly requested to act on behalf of the client or (if later) since the attorney last acted on behalf of the client. If the client re-engages the attorney at a later date, the client relationship shall be revived under the original terms and conditions.
13. Obligation to surrender
13.1. Upon termination of the client relationship, the attorney shall return the original documents to the client upon request. The attorney is entitled to retain copies of these documents.
13.2. If, after the end of the mandate, the client requests documents (copies of documents) that he has already received in the course of the mandate, the costs shall be borne by the client.
13.3. The lawyer is obliged to retain the files for a period of five years from the end of the mandate and to provide the client with copies during this period if required. Point 13.2 applies to the bearing of costs. If longer statutory periods apply for the duration of the retention obligation, these must be observed. The client agrees to the destruction of the files (including original documents) after the retention period has expired.
14. Rechtswahl und Gerichtsstand
14.1. Die Auftragsbedingungen und das durch diese geregelte Mandatsverhältnis unterliegen materiellem österreichischem Recht.
14.2. Für Rechtsstreitigkeiten aus oder im Zusammenhang mit dem durch die Auftragsbedingungen geregelten Vertragsverhältnis, wozu auch Streitigkeiten über dessen Gültigkeit zählen, wird die ausschließliche Zuständigkeit des sachlich zuständigen Gerichtes am Sitz des Rechtsanwaltes vereinbart, soweit dem nicht zwingendes Recht entgegensteht. Der Rechtsanwalt ist jedoch berechtigt, Ansprüche gegen den Mandanten auch bei jedem anderen Gericht im In- oder Ausland einzubringen, in dessen Sprengel der Mandant seinen Sitz, Wohnsitz, eine Niederlassung oder Vermögen hat.
15. Final provisions
15.1. Amendments or additions to these terms and conditions of engagement must be made in writing to be valid.
15.2. Statements made by the lawyer to the client shall 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 amended address subsequently communicated in writing. However, unless otherwise agreed, the lawyer may correspond with the client in any manner he deems appropriate, in particular by email to the email address provided by the client to the lawyer for the purpose of communication. If the client sends emails to the lawyer from other email addresses, the lawyer may also communicate with the client via these email addresses. Unless otherwise specified, declarations to be made in writing in accordance with these terms and conditions may also be made by fax or email. Unless otherwise instructed in writing by the client, the attorney is entitled to conduct email correspondence with the client in unencrypted form. The client declares that they are aware of the associated risks (in particular access, confidentiality, alteration of messages during transmission) and the possibility of using TrustNetz, and, in full knowledge of these risks, agrees that email correspondence will not be conducted in encrypted form.
15.3. The client expressly agrees that the lawyer may process, transfer, or transmit (within the meaning of the Data Protection Act) personal data relating to the client and/or their company insofar as this is necessary and appropriate for the fulfillment of the tasks assigned to the lawyer by the client or results from the lawyer's legal or professional obligations (e.g., participation in electronic legal transactions, etc.).
15.4. The invalidity of one or more 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 provisions. The contracting parties undertake to replace the invalid provision(s) with a provision that comes as close as possible to the economic result of the invalid provision(s).
