With a lawyer's fee of 15,000 yuan and a compensation of more than 1.47 million yuan, this set of disparity data caused an uproar in public opinion.
Recently, Beijing Yingke (Shenzhen) Law Firm failed to inform the parties to pay the litigation fees in a timely manner, resulting in the case being dismissed and the original arbitral judgment taking effect. The parties sued the law firm on this basis, and the law firm of the second trial court compensated more than 1.47 million yuan.
After the incident, Nandu reporters combed through similar cases, interviewed a number of industry insiders, and discussed the determination of compensation amounts and risk warnings. "The biggest lesson of this case is to remind lawyers to be dedicated and responsible when representing cases." Some lawyers also said that they should pay attention to leaving traces of the communication process with the parties, fix the evidence of their performance of their obligations under the entrustment contract, and reduce the risk of practice.
The Legal Management Department of the Shenzhen Municipal Bureau of Justice told reporters, "After the incident, the work on the management of lawyers will definitely be strengthened." ”
Beijing Yingke (Shenzhen) Law Firm.
Yingke Law Firm was awarded millions in damages
According to the hotly discussed second-instance judgment, the appellant is Beijing Yingke (Shenzhen) Law Firm, which is dissatisfied with the civil judgment of the Futian District People's Court of Shenzhen and appeals to the Shenzhen Intermediate People's Court due to a dispute over an entrustment contract with the appellee Yang.
Previously, the Shenzhen Futian District People's Court ruled that Yingke Law Firm should compensate Yang for the loss of 1.94 million yuan within 10 days from the effective date of the judgment.
The judgment mentioned that the main focus of the dispute in the second instance of this case was the issue of whether Yingke Law Firm should compensate Yang for the loss of 1.94 million yuan. First of all, according to the facts ascertained in the first-instance trial, the entrustment contract relationship between Yingke Law Firm and Yang was established in accordance with the law, and Yingke Law Firm had the obligation to report the progress of the case in a timely manner and notify Yang of relevant litigation matters.
In this case, the available evidence is not sufficient to effectively prove that Yingke Law Firm informed Yang to pay the fee within the specified payment period after receiving the notice of back payment of litigation fees; However, the case was finally ruled to be dismissed due to the failure to pay the fee in time, and the original arbitral award took effect; This result is directly causally related to the failure of Yingke Law Firm's reporting obligations, so the court of first instance found that Yingke Law Firm's conduct constituted a breach of contract and was not improper.
Secondly, Yingke Law Firm's breach of contract caused Yang to lose the opportunity to assert the corresponding rights in the case, which directly affected Yang's relevant litigation rights and potential substantive rights and interests, and Yingke Law Firm should bear the corresponding liability for compensation.
Shenzhen Intermediate People's Court.
Based on the specific facts of the case, the performance of the parties and the degree of fault of the parties, the Shenzhen Intermediate People's Court determined that Yingke Law Firm should compensate Yang for losses of more than 1.47 million yuan.
Accordingly, the second-instance judgment was that Beijing Yingke (Shenzhen) Law Firm should compensate Yang for losses of more than 1.47 million yuan within 10 days from the effective date of this judgment.
On September 5, a person familiar with Beijing Yingke Law Firm told a reporter from Nandu that the relevant situation was true.
The amount of compensation is not related to attorney's fees
Due to a small negligence, a case with a lawyer's fee of only 15,000 yuan eventually led to the law firm facing more than 1.47 million yuan in compensation.
How is this huge amount of compensation defined?
The court of second instance of the case and the Shenzhen Intermediate People's Court held that Yingke Law Firm's breach of contract caused Yang to lose the opportunity to assert corresponding rights in the relevant case, which directly affected Yang's relevant litigation rights and potential substantive rights and interests, and Yingke Law Firm should bear the corresponding liability for compensation.
However, the sales performance commission requested by Yang in the relevant case was more than 1.91 million yuan, which exceeded the sales performance commission of more than 1.44 million yuan requested by Yang in the pre-labor arbitration procedure, and the increased amount was more than 460,000 yuan, so Yang's claim for losses of more than 460,000 yuan in this case was not based on sufficient basis and was not supported by the court.
Therefore, based on the specific facts of the case, the performance of the parties and the degree of fault of the parties, the court determined that Yingke Law Firm should compensate Yang for losses of more than 1.47 million yuan.
Judgment of the second instance.
"The biggest lesson of this case is to remind lawyers to be dedicated and responsible when representing cases." Deng Xueping, director of Shanghai Quandian Law Firm, pointed out to reporters that in civil and commercial cases, as long as the lawyer's entrustment authority includes receiving legal documents on his behalf, the court will send the notice of payment and litigation documents to the lawyer. After receiving it, the lawyer negligently failed to notify the client to pay the fee in a timely manner in accordance with the requirements of the payment notice, resulting in losses to the client, and the lawyer of the law firm was at fault.
Zhao Cong, a partner of Zhongwen Law Firm and a doctor of law, also believes that according to the relevant provisions of the Contract Law and the Lawyer Law, the law firm signed an entrustment agreement with Yang and failed to perform the obligation to inform in a timely manner, which constitutes a breach of contract and should bear the liability for compensation.
In terms of determining the amount of compensation, Deng Xueping explained, "The court awarded the law firm more than 1.4 million yuan in compensation, based on the losses caused to the parties by the lawyer's representation of the law firm, rather than the amount of the lawyer's fees charged by the law firm. ”
The reporter from Nandu noticed that Yingke Law Firm also mentioned in the appeal request that the compensation amount of 1.94 million yuan demanded by Yang in the first instance was not supported or asserted in the labor arbitration stage. The judgment of first instance should not be upheld.
In this regard, Zhao Cong said that if Yang's compensation request was not supported in the arbitration, the sales performance commission of more than 140 yuan claimed by him had not been confirmed as an objective fact, and it was a personal claim, and it was impossible to confirm whether the amount was true and accurate.
"The first- and second-instance judgments made by the court not only made a determination of the entrusted legal relationship between Yang and the law firm, but also implied a determination of Yang's labor dispute case, that is, the recognition of Yang's sales commission of more than 140 yuan is objective and accurate, which exceeds the original cause of action to a certain extent." Zhao Cong said.
There are law firms that have negligently transferred their assets
Nandu reporters combed through and found that the case of being sentenced to compensate the client due to the lawyer's negligence is not an isolated case.
In April 2006, Li of Xinyi City, Xuzhou, Jiangsu Province, sued a local company for failing to pay more than 30,000 yuan for coal.
Before filing the lawsuit, Li signed an agency contract with lawyer Fang and paid agency fees because he went to other places to do business. In May of the same year, the court made a judgment that the defendant company should pay the plaintiff Li more than 30,000 yuan for coal within 10 days after the judgment took effect. The judge's message after the judgment reminded that if the defendant is a legal person, the time limit for the plaintiff to apply for enforcement is 6 months from the date the judgment takes effect.
But until April 2007, when Li returned to his hometown and asked Fang, he did not apply for enforcement. The enterprise also refused to pay the arrears on the grounds that Li had not applied for enforcement within the statutory time limit. Li demanded compensation from Fang and sued Fang to the court.
The court held that the agency contract signed by Li and Fang was true and valid, and because Fang failed to perform his obligations in accordance with the contract signed by the two parties and failed to claim his rights in time within the statutory time limit for applying for enforcement, he should bear the liability for breach of contract, so Fang was sentenced to compensate Li for losses of more than 30,000 yuan.
Coincidentally, the Intermediate People's Court of Nantong City, Jiangsu Province, once ruled on a legal service contract dispute case.
In this case, due to the lawyer's gross negligence in the seizure, the seized cash of more than 2.5 million yuan was not renewed in time, resulting in the client's actual loss of more than 1.63 million yuan.
It turned out that two lawyers from a law firm in Nantong City, Huang and Lu, represented Cai in a private loan dispute case with a construction and installation company in Nantong and Wang. After the court of first instance accepted the case, it seized and froze 2.51 million yuan in the name of a construction and installation company in Nantong according to the preservation application filed by Cai.
Subsequently, the law firm signed and received the notice of litigation preservation served by the court of first instance. Later, the law firm verbally informed Cai of the preservation result through the middleman. However, after the seizure expired, Cai himself and his authorized agent did not apply for renewal of the seal.
When the lawyer Lu applied to the court of first instance on behalf of Cai, requesting that the property under the name of a construction and installation company in Nantong and Wang be continued to be seized, it could only be frozen to several hundred yuan. Cai applied to the court of first instance for enforcement of the case, and the subject amount of the application for enforcement was more than 2.41 million yuan, but the property could not be enforced.
The court of first instance held that the law firm should bear secondary liability for the damage consequences of this case and compensated Cai 400,000 yuan. Dissatisfied, Cai appealed to the court of second instance.
After trial, the Nantong Intermediate People's Court held that the lawyer had failed to fulfill his duty of diligence and prudence, and that he had failed to submit an application for renewal of the insurance before the expiration of the preservation period, resulting in the transfer of the preserved property, and that he should bear the main responsibility for this, and should bear 70% of the liability and compensate the plaintiff for the loss of more than 1.14 million yuan. Since the lawyer is appointed by the law firm, the law firm should bear the corresponding legal consequences.
Trigger a reflection on the lawyer industry
In the past few days, the judgment of the Shenzhen Intermediate People's Court has also sounded the "alarm bell" for the lawyer industry. Many lawyers said that they should "remain vigilant" when handling cases, and some law firms issued "self-examination notices".
"Leave an extra phone call in the future, just to be on the safe side." After paying attention to this matter, lawyer Zhang Hua (pseudonym) said that in order to avoid omissions, he will leave contact information for the court in the future, and in addition to his own, he will consider leaving the client's as well.
Lawyer Zhao Yong (not his real name) not only keeps important dates related to litigation in mind, but also marks them on his calendar. He told the reporter that sometimes it is easy to forget to notify the parties to pay the litigation fee when they are busy, "the service platform and service method of each court are different, there are too many things, and there are too many text messages, and they are ignored if they are not careful."
He believes that from a legal point of view, the court's decision can be a wake-up call for lawyers, "because personal negligence and failure of duty can bring serious consequences".
Zhao Cong said that lawyers should remain cautious in their practice activities, pay attention to the progress of the case, abide by the requirements of the "Lawyers' Professional Ethics and Practice Discipline Code", and report the progress of the case to the client in a timely and accurate manner. "At the same time, lawyers should pay attention to leaving traces of the communication process with the parties, fix the evidence of their performance of their obligations under the entrustment contract, and reduce the risk of practice."
The relevant law firm also issued an internal notice for this purpose, and a person familiar with Beijing Yingke Law Firm told the reporter that the law firm issued an internal notice to employees after the incident to remind everyone to pay attention to relevant risk prevention.
He believes that this is also a risk characteristic of the legal industry, "Personally, it is first and foremost a wake-up call that my team handles thousands of cases every year, and the possibility of this happening is still there." We also remind young lawyers to be cautious about important litigation timelines, processes and other related matters. ”
A lawyer revealed that after the incident, the law firm issued a notice requiring the lawyers to "conduct a comprehensive self-examination of all ongoing cases." Focus on the time of the trial, the expiration of the renewal and the time of payment of the court fee".
In addition to the lawyer personally, this matter has also attracted the attention of relevant departments.
A staff member of the Legal Management Office of the Shenzhen Municipal Bureau of Justice told reporters, "After the incident, the work on the management of lawyers will definitely be strengthened." ”
Source: Southern Metropolis Daily
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