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The Supreme Court sets the deadlines for lawyers and attorneys to collect their fees

2021-04-14T17:37:48.419Z


Two years to claim defaults in first instance lawsuits or one year in the rest of resources The economic crisis caused by the Covid 19 pandemic is being the main reason for many lawyers and attorneys to receive their fees and minutes late, or that they are forced to submit accounts oaths to collect the due for the services performed. To clarify the executive collection of attorneys 'and solicitors' fees from their delinquent clients, a recent ruling from the Contentious-Administrative C


The economic crisis caused by the Covid 19 pandemic is being the main reason for many lawyers and attorneys to receive their fees and minutes late, or that they are forced to submit accounts oaths to collect the due for the services performed.

To clarify the executive collection of attorneys 'and solicitors' fees from their delinquent clients, a recent ruling from the Contentious-Administrative Chamber of the Supreme Court of January 29, 2021 addresses an issue that turns green in times of economic crisis: when applies and when the incident of the oath of accounts established in the Civil Procedure Law (LEC) is excluded.

The order (which you can consult here), whose rapporteur has been Judge Inés Huerta Garicano, resolves a cassation appeal on an account oath incident based on article 237 of the Civil Procedure Law (LEC).

The High Court reminds lawyers and attorneys that the instances and resources in all kinds of lawsuits will be considered abandoned if - despite the ex officio impulse of the proceedings - there is no procedural activity within two years (affects the lawsuits in the first instance) and one year, if it is in the second instance or pending an extraordinary appeal for procedural infringement or appeal.

Main lawsuit incident

For this reason, the expiration period foreseen for the main process in which a fee claim is made also operates as the limit within which the request for an oath of accounts must be made.

The procedure that is the object of the appeal must be classified as "enforceable" since it is, as the magistrates reason, an incident of the main lawsuit (in the case resolved by the High Court, an appeal for cassation so that the term is one and not two years).

The Supreme Court recalls that the application of this article of the LEC to requests for an oath of accounts must be fulfilled by lawyers and solicitors in their claims for the executive collection of their fees, whose procedures are included in art.

34 -for attorneys- and art.

35 -for lawyers- of the LEC, since this procedural regulation does not set a time limit for its presentation.

This procedural situation and compliance with the deadlines are complicated when the client challenges the fees as they are considered excessive;

situation in which the lawyer of the Administration of Justice must transfer to the lawyer or solicitor if he accepts the reduction of his minute.

In the event of rejection, the judicial officer must initiate the cost assessment procedure.

During this process, the deadlines are essential and now the Supreme Court clarifies the expiration of the executive action to collect fees, taking into account that if it is a lawsuit in the first instance, it is two years;

while if the minute refers to a second instance, extraordinary appeal for procedural infringement or appeal, the term is reduced to one year.

Privileged procedure

The magistrates also consider that if the legislator establishes a privileged procedure - affected by the principle of summary for the immediate collection of the fees of these professionals - it is an illogical conclusion to think that it can be promoted at any time after the litigation,

sine die

.

Although articles 34 and 35 of the current LEC do not establish a time limit for the claim of fees, their own incidental nature and the characteristics of this privileged channel for lawyers and attorneys, which allows the immediate collection of fees, collide head-on with the idea of ​​being able to raise it at any time after the litigation without being subject to any deadline.

Lawyers and attorneys who have missed the claim period for their minutes due to the incident, the oath of accounts procedure of the main lawsuit, will only have the possibility of civil lawsuit for the collection of their client if the statute of limitations does not it would have been exhausted.

The incidental nature of the audit of accounts with respect to the main proceeding from which it originates requires that the issue of expiration be examined with reference to said procedure established in Article 237. The same criterion for applying this regulation follows the First Chamber of the Supreme Court in claims for the payment of fees requested by the jury of accounts procedure, since this Chamber understands that the characteristics of the claim for fees by means of the jury of accounts allow us to deduce that "we are facing an incident of the main lawsuit ”.

Following the jurisprudence of the First Chamber of the Supreme Court, the order of the Contentious-Administrative Chamber concludes that the privileged procedure for the exaction of the detailed minute of the attorney or of the attorney's fees, usually called an "account oath", does not It gives rise to an execution process nor does it constitute the opening of executive actions, for the obvious reason that the execution of what is decided in the resolution that concludes the main process is not pursued, but the satisfaction of the fees or rights of the professionals involved. in this in front of your own client or principal.

By leaving the claim for fees out of the independent enforcement processes of the main lawsuit, the Supreme Court rules out - as requested by the attorney who brought the appeal - the invocation of article 239 of the LEC on the exclusion of expiration in enforcement to substantiate the inadmissibility of applying the expiration of the instance in the oath of accounts.

Source: elparis

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