Introduction:
This paper aims to analyze an issue that has always been controversial and is linked to the legal discipline, however be related to other disciplines. I refer to the collection of fees by lawyers, specifically the issue of "quota litis.
As a starting point, we must remember that any person providing a service to another person, is entitled to claim an allowance for such service. Thus, the gásfiter charges us each time that attends our house to repair any household appliance. Similarly, the lawyer is also entitled to financial compensation for services rendered (fee) and reimbursement of expenses to be made to defend the interests of the person who hired him.
Development theme
So far nothing new, the problem arises when the lawyer comes to terms with his client a "quota litis. Our legislation has not defined in our code of ethics this concept, but we refer to the code of ethics to have any Mexican approach to what we mean by this concept: "The covenant of" quota litis "is an agreement signed by the attorney-client before the final conclusion of a case in which the client is involved and which fee is granted in part or percentage of what is obtained in the proceedings in case of success, ie to become a member of his client, by stipulating that the fees comprise a fixed share of the business results, if which is favorable. " [1]
From the definition it follows that the quota litis is not nothing but a percentage of what is at stake in a legal dispute, and that only happens at the hands of the lawyer in case of success in his defense.
Although our law does not define this concept, if it refers to several provisions of our code of ethics
"The contingency fee is not objectionable in principle. To the extent not prohibited by local regulations is admissible when the celebrated lawyer and writing before providing professional services on a fair basis, provided that they observe the following rules:
1 .- The participation of counsel will never be greater than the cliente.2 .- The Attorney reserves the right to terminate the sponsorship agreement and separate office or at any time, into the situations envisaged by Article 30, the same way that will leave unless the correlative right to remove client the matter and leave it to other professionals in similar circumstances. In both cases the attorney will be entitled to a proportionate amount for services and with the participation originally agreed, provided that economic benefits occurring as a result of their work. When the claims at issue was set aside by abandonment or waiver or reduced customer transaction, the lawyer shall be entitled to settle and require payment of fees for services prestados.3 .- If the issue is resolved in the negative, the lawyer not charge fees or expenses unless it has been expressly stipulated that right. " [2]
Consequently, we see that the contingency fee is accepted in our code of ethics, but always and when they meet certain requirements: Ø
is acceptable so long as not prohibited by local regulations, ie, if positive law is silent against such pact. Ø
is permissible provided it is held and writing before providing professional services. A lawyer could not require licensing fees in a dispute or trial in which successfully concluded their negotiations, if it was not established earlier. Accordingly, it must prove that there is such a pact.
or lawyer can not have a stake greater than 50% of the amount in dispute. This follows the rule that states that the participation of counsel will never be greater than the client. Here must be remembered that what is at stake is "the customer." The lawyer is the person who will help the client get what they justly belongs therefore can not grab too much of it. Ø
Both the lawyer and the client may terminate the sponsorship in advance or order, at any time they deem appropriate. Here the lawyer is entitled to charge an amount proportional to slab services so far.
or attorney may only require payment of a fee when their performance has been successful. This final rule of Article 35 of our code has an exception may be charged equally to the contingency fee, provided that this right is stipulated in favor of the lawyer.
As we see, the Bar does not see with good eyes the contingency fee and therefore provides a number of restrictions and bans at the time of concluding the pact between client and lawyer. It is an institution that could not be regulated given to many abuses by lawyers. Especially taking into consideration the environment in which lawyers operate is often unknown to their customers. However it has chosen to include and accept this agreement because it recognizes the change that has been our profession, going from a lawyer intimately linked to the concept of state, a concept of market lawyer. The legal profession has gone from having a virtual monopoly of the work in the state, into a mere coordinating relations between individuals, thereby changing the way of seeing and understanding our role in society. Understandably
which added to our profession, practices and customs that exist in many other disciplines that go to market in search of customers. Our defense may accept as not to accept a contingency fee basis, but the important thing is that they are aware of it prior to the release the patronage and power.
comparative law analysis:
However, analyzing the international experience addressing this issue, we find realities both on our continent, as in the old world.
Thus we see that there are countries where nothing is said about the contingency fee, such as Venezuela, Puerto Rico, and Uruguay. These countries would apply understood that contingency fee agreements for implementing the principle of autonomy in the sphere of private relations. In the private sector can do all that legal rules do not prohibit.
Other countries like Argentina, where the issue of contingency fees is treated in positive law, and not as an ethical regulatory body whose application is more voluntary. In neighboring Chile the issue was settled by the issuance law 21,839 of Lawyers and Attorneys Fees, approved by National Congress and published in the Official Gazette dated July 20, 1978. In that body of law, establishing the tariff for lawyers and solicitors for their judicial and extrajudicial activities.
Article 4 of the Act deals with the issue of contingency fees: "Article 4 .- The professionals may agree with their customers fees for its activities in one or more issues or processes consist in participating in the result éstos.En these cases, the fees of counsel and the prosecutor, as a whole and in every respect, may not exceed forty percent (40%) of the result Economic obtained, without prejudice to the right of professionals to receive the fees that are declared by the contraria.Cuando professional involvement in the outcome of litigation, exceed twenty percent (20%), costs that may correspond to defend the client and the latter's responsibility for costs shall be borne by the professional, except convention contrario.Los pension issues or processes, food and family, may not be subject to covenants. Neither fee may be agreed only in relation to the duration of the case or proceeding. " [3]
trasandina law, as the rules of the Bar Association of Chile does not define "contingency fees", but so did the controls. The rules are more restrictive than the Chilean, and that the covenants allowed may not exceed 40% of economic performance in resolving the conflict (in our case, we can agree to 50% of economic performance).
There is also another rule limiting these covenants, and that has to do with the covenants in the share to exceed 20% of the result. In these cases, the legislature requires the lawyer to take over the expenses and costs of the defendant, unless there is a provision to the contrary. Finally
conclude such agreements as prohibiting contingency fees in some areas: "The pension issues or processes, food and family, may not be subject to covenants. " [4]
can see that the rules in Argentina is much more stringent than the Chilean. Both in relation to the amounts, as to the matters which should be the contingency fee.
Another Latin American law is concerned with this theme is Mexican. In the code of ethics found in Chapter Mexican regulations on third contingency fee:
"3.3 .- PACT quota litis.
3.3.1 .- A lawyer may not set their fees based on a pact of "quota litis.
3.3.2 .- The covenant of "quota litis" is an agreement signed by the attorney-client before the final conclusion of a case in which the client is involved and the fee is granted as a part or percentage of what is obtained in the proceedings in case of success, ie to become a member of your customer , by stipulating that the fees comprise a fixed share of the business results, should be favorable. 3.3.3 .-
pact will not be considered "quota litis agreement providing for the determination of fees based on the value of the dispute dealt with by the lawyer, provided that the value is set according to an official rate fees, which provides a portion of the fees as "quota litis, ie a percentage of the business on success " [5]
Here you can see that the code of ethics of the Illustrious and National Bar Association of Mexico begins with a categorical assertion:" The lawyer can not set their fees based on a pact " quota litis. Then proceeds to define what is meant by that covenant, to finally establish an exception to the general rule, in order to allow these agreements between attorney and client, says that to be valid, the value of the fee shall be fixed by using a rate official fees.
Consequently, we see that in Mexico these agreements are generally prohibited, unlike what happens in our country, where generally allowed.
Conclusions:
We see the talks that he gives the same theme, is completely different depending on the country to be taken as reference. But beyond the differences and the disparity of views, we can see that all rules, both ethical (Chile and Mexico) as those of a positive nature (Argentina) are viewed with suspicion and distrust the institution at issue.
The rationale given for limiting and in some cases abolish contingency fee agreements, is to protect against possible abuses that could mean a deal that was too burdensome for those who hire a lawyer, establishing arbitrary conditions to enrich the lawyer ultimately to the detriment of the interests of the principal subject in a legal relationship, the defendant. This is the reason why in our country accepts the contingency fee, but provided the lawyer's income can never be greater than the gain of the customer.
I would disagree with the talks so restrictive that it gives the contingency fee. In a dynamic world like today, when the prospect that the lawyer has a subject is immersed in the market, we can not put limitations as clear cut a case that ultimately should be given to the autonomy of parties.
The lawyer is simply a provider more social services system. Should be the customer who ultimately accepts or rejects a contingency fee of more than 50% of the proceeds of a case. The market will ultimately be responsible for regulating the price and demand, as in any society governed by the laws of free market.
also be taken into consideration that there are cases where the client does not seek monetary damages as a primary objective. Such is the case of a person who wants to clear his image has been affected by serious allegations against him. What will interest the customer will be your honor, your honor, not money involved in the middle. Nothing wrong here that would agree that the lawyer will take a share of 70% or 80%, provided that this occurs with the consent of the client.
I should not excessively restrict such agreements between clients and lawyers. I think yes, it is necessary that such agreements are concluded prior to the service, to be clear from the start the game.
[1] Code of Ethics Bar Mexico: http://www.incamex.org.mx/normatividad/codigos.html #
relations [2] Art. 35, Code of Ethics Bar de Chile.
[3] Law 21,839, fees of lawyers and solicitors
[4] final Subsection Article 4, Law 21,839, of lawyers and attorneys fees.
[5] Code of Ethics Bar Mexico: http://www.incamex.org.mx/normatividad/codigos.html # relations
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