The issue of lawyers' fees often raises questions. Between regulated fees and contractual freedom, the French system is somewhat complex. Understanding the rules governing lawyers' fees can help avoid many misunderstandings.
Dual remuneration for lawyers
The French system distinguishes between two types of remuneration for lawyers:
- Posting fees, set according to regulatory scales
- Fees freely agreed with the customer
This duality is the result of the history of the profession and successive reforms, in particular that resulting from the law of 31 December 1971 and amended by the law of 6 August 2015.
Fee-based postulation: a now restricted field
Act no. 2015-990 of 6 August 2015 considerably reduced the scope of fee-based postulation. It now exists in only four areas:
- Foreclosure
- Sharing
- Auction
- Judicial sureties
In these matters, the fee is calculated in accordance with a tariff set out in articles A.444-187 to A.444-202 of the French Commercial Code. These fees are reviewed every two years.
For proceedings commenced before 7 August 2015, the old rates remain applicable. The date of completion of the representation assignment - and not the date on which the statement of costs is drawn up - determines the applicable rate (Civ. 2e, 12 October 2023, no. 21-23.693).
Freedom to agree fees: principle and framework
Article 10 of the Act of 31 December 1971, as amended by the Act of 6 August 2015, states that "fees for representation, consultation, assistance, advice, drafting of private legal documents and pleadings are fixed in agreement with the client."
However, this freedom is exercised within a framework defined by several criteria:
- The customer's financial situation
- The difficulty of the case
- Costs incurred by the lawyer
- Its reputation
- His diligence
The fee agreement must be set out in writing, except in cases of urgency, force majeure or where the lawyer is receiving legal aid.
The fee agreement: form and content
Since the law of 6 August 2015, the fee agreement must be in writing. It specifies:
- How fees are determined
- Due diligence
- Costs and disbursements envisaged
Failure to do so exposes the lawyer and his client to having the amount of remuneration set by the court in accordance with the criteria set out in article 10 of the law of 31 December 1971.
Where it exists, the agreement is the law of the parties, subject to the grounds for nullity under ordinary law. It must be performed in good faith, which excludes the possibility of requesting the agreed fees in advance (Civ. 2e, 12 May 2005, no. 02-16.425).
In the case of a protected adult, the fee agreement may constitute a disposition of assets requiring the agreement of the guardianship judge (Civ. 2e, 6 May 2021, no. 19-22.141).
The fee for results: a regulated supplement
Article 10 of the law of 31 December 1971 prohibits the fixing of fees solely on the basis of the legal result. On the other hand, it authorises "an agreement which, in addition to remuneration for services rendered, provides for the fixing of an additional fee according to the result obtained or the service rendered".
This result-based fee is only payable when the proceedings have been terminated by an irrevocable judicial act or decision. A lawyer who is removed from the case before the final outcome is not entitled to this fee, unless a specific clause provides for this (Civ. 2e, 10 March 2004, no. 01-16.910; Civ. 2e, 4 July 2019, no. 18-17.411).
The amount of the contingency fee is freely determined, and is not necessarily proportionate to the main fee (Civ. 1re, 10 July 1995, no. 93-20.290). However, the judge retains the possibility of verifying that it is not exaggerated in relation to the service rendered (Civ. 2e, 17 February 2011, no. 09-72.492).
The procedure for appealing to the President of the Bar
In the event of disagreement over fees, a specific procedure is provided for in articles 174 et seq. of decree no. 91-1197 of 27 November 1991. This procedure is exclusive: any other method (summary proceedings, arbitration) is inadmissible.
Disputes must be submitted to the President of the Bar Association to which the lawyer belongs. It must be submitted in writing, by registered letter with acknowledgement of receipt or delivered against a receipt.
The President of the Bar examines the case in the presence of both parties and gives his decision within four months, which may be extended once. His decision is notified by registered letter with acknowledgement of receipt within fifteen days.
After notification, and in the absence of an appeal, the decision becomes final and may be made enforceable by the president of the judicial court.
I should point out that this procedure can only concern disputes relating to the amount and recovery of fees. It cannot be used to determine who owes the fees (Civ. 2e, 2 March 2017, no. 16-11.434) or to challenge the lawyer's liability (Civ. 2e, 14 January 2016, no. 15-10.038).
Appeal to the First President of the Court of Appeal
The decision of the President of the Bar may be appealed to the First President of the Court of Appeal within one month of notification.
This appeal is lodged by registered letter with acknowledgement of receipt or by delivery to the clerk's office of the Court of Appeal. An incidental appeal is possible in any event (Civ. 2e, 17 February 2011, no. 09-13.209).
The proceedings are oral and without mandatory representation. The First President hears the parties, who are summoned to appear by the court clerk at least eight days in advance. He may refer the case to the Court of Appeal at any time.
If it quashes the decision of the President of the Bar, the First President must rule on the merits by virtue of the devolutive effect of the appeal (Civ. 2e, 28 June 2012, no. 11-23.624).
Appeal to the Court of Cassation: the last resort
The First President's decision may be appealed to the Court of Cassation. Unlike the procedure before the President of the Bar and the First President, this appeal requires the appointment of a lawyer at the Conseil d'État and the Cour de cassation (Civ. 1re, 10 May 2000, no. 99-15.696).
There is no provision dispensing with this compulsory ministry, and this requirement does not affect the rights defined by the European Convention for the Protection of Human Rights.
Fee disputes can therefore be heard at three levels of court, reflecting the importance attached to this issue by the legislator.
To avoid such disputes, a clear, precise fee agreement that complies with legal provisions remains the best solution. Do not hesitate to ask your lawyer about his or her invoicing arrangements before commencing any proceedings. Our firm will be happy to answer any questions you may have on this subject.
Sources
- Law no. 71-1130 of 31 December 1971 reforming certain judicial and legal professions, article 10
- Law no. 2015-990 of 6 August 2015 for growth, activity and equal economic opportunities, article 51
- Decree no. 91-1197 of 27 November 1991 organising the legal profession, articles 174 to 179
- French Commercial Code, Articles A.444-187 to A.444-202
- Civ. 2e, 12 October 2023, no. 21-23.693
- Civ. 2e, 12 May 2005, no. 02-16.425
- Civ. 2e, 6 May 2021, no. 19-22.141
- Civ. 1st, 10 July 1995, no. 93-20.290
- Civ. 2e, 10 March 2004, no. 01-16.910
- Civ. 2e, 4 July 2019, no. 18-17.411
- Civ. 2e, 17 February 2011, no. 09-13.209
- Civ. 2e, 2 March 2017, no. 16-11.434
- Civ. 2e, 14 January 2016, no. 15-10.038
- Civ. 2e, 28 June 2012, no. 11-23.624
- Civ. 1st, 10 May 2000, no. 99-15.696
- Répertoire de procédure civile, "Taxe", Michel REDON, February 2024
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