The Federal Court of Justice has with its Judgment of April 15, 2021 confirms the conviction of a lawyer to repay the remuneration received. This case shows very well that some effort has to be invested in accepting an order, because one should be clear about how the matter can and should then be settled. A written agreement with the client can never hurt.
The defendant, a lawyer, advised the plaintiff, former clients on a will. He drafted a joint will, which contained mutual inheritance. He sent the draft to the client and attached an invoice for an advance payment of around € 1,800. After receiving the invoice, his mandate was terminated. The lawyer then set a (reduced) business fee in accordance with § 2 Abs. 2 RVG (No. 2300 VV-RVG) with around € 3,700, which was actually paid. Apparently after appropriate advice, the couple demanded the vast majority of the amount back because they were of the opinion that the lawyer would only pay a consultation fee in accordance with § 34 RVG be entitled to.
Actually a clear legal position!
The decision of the Federal Court of Justice for lawyers should not be really new. Nevertheless, the IX. Civil Senate the matter is worth a guiding principle:
“The draft of a joint will in accordance with the contract is not an activity that triggers the business fee even if mutual dispositions of the client are intended.”
This is not new if only because the same Senate already has its own Judgment of 02/22/2018 has clarified that the preparation of draft wills is “only” advice and not running a business. But the appeal had been approved by the appellate court and so the Federal Court of Justice took up the matter.
Agree on remuneration!
That is exactly what you want to call out to both sides.
Without a remuneration agreement, the sued colleague simply had no chance, because the law writes in Section 34 (1) sentence 3 RVG provide that a consumer without a remuneration agreement may not be charged more than € 250. For the sued colleague, this now means that – regardless of the question of how much work and expertise he has put into the matter, he now has to repay € 3,300 of the € 3,700 paid.
In the present dispute it was of course the case that the lack of a written remuneration agreement was beneficial for the clients, because they were consumers. However, laypeople bear the risk of not being able to judge with legal certainty in each individual case when the advice will then become the operation of a business. It has always made sense and remains so that you clarify at the beginning how high the remuneration will be.