Success fee as unfair term in the contracts for legal services concluded with an advocate or legal counsel : admissibility of control of remuneration terms

Bibliogr. s. 57-59

Since 1993 the Directive on unfair contract terms has been applied to the contracts concluded with consumers. There is no doubt that some terms of such contracts can be controlled by courts. However lately, the question regarding the admissibility of control of terms included in contracts concluded between advocates/legal counsels with consumers has arisen. The article deals with this principal issue. After detailed analysis of arguments presented by legal scholars and jurisprudence, the author agrees with the CJEU judgment (15 January 2015, case C‑537/13, Birutė Šiba v. Arūnas Devėnas) according to which Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as applying to standard form contracts for legal services, concluded by a lawyer with a natural person acting for purposes which are outside his trade, business or profession. The foregoing statement prompted the author to research the problem of possibility of legal control of success fee as unfair term. Success fee or pactum de quota litis is a kind of payment reserved frequently by lawyers in contract of services. Because it is a remuneration paid for a lawyer for a result of his activity, it is considered by author of this article as a main subject matter of contract. According to art. 3851 of Polish Civil Code such clauses cannot be assessed as unfair contract terms. However, when it comes to success fee, Polish courts have different opinion. The Warsaw Appeal Court in its judgment of 15 January 2015 assessed some clauses of legal services contract: one according to which the fee should be paid after the legal task would be achieved and the other one which enabled lawyer to charge this fee even the client withdrew the contract. First of all the Appeal Court stated the contract of legal services is typical example of due dilligence contract (e.g. commission contract) and rejected the standpoint according to it is the type of contract of result (e.g. contract for performance of a specific task). The consequence of this opinion is that the fee provided by contract with lawyer cannot be assessed as a success fee, because success fee can be reserved only in case of contracts of result. In the opinion of Appeal Court such qualification could also be contrary to the essence of contracts concluded with lawyers. The author of article disagrees with this assessment. One of argument presented by author is that success fee is simply a kind of remuneration, so regardless of what kind of contract it is stipulated in it should be deemed as main subject matter of parties' activity. The author highlights that according to the Polish Civil Code neither the main subject matter of the contract nor the adequacy of the price and remuneration can be assessed by court as unfair in so far as these terms are in plain intelligible language. Success fee should be assessed only in the light of transparency rule. The latter one, according to CJEU (judgment 30 April 2013, in case C- 26/13 Árpád Kásler, Hajnalka Káslerné Rábai v. OTP Jelzálogbank Zrt) is to be understood as requiring not only that the relevant term should be grammatically intelligible to the consumer, but also that the contract should be set out transparently so that that consumer is in a position to evaluate, on the basis of clear, intelligible criteria, the economic consequences for him which derive from it.