The digital issuance of mandates can also trigger an obligation to pay fees

Digitalisation and the corona-induced home office work have led to an increasing number of lawyers being mandated digitally In this context, clients often assume that the e-mail correspondence is a free initial consultation. However, this is not necessarily the case.

In cases where a mandate is awarded by e-mail, the following points should be noted.

With an e-mail enquiry requesting lawyers to examine a matter, an assignment in the form of a mandate agreement can validly come into existence. The prerequisite is that the lawyer subsequently takes action in response to the e-mail. The response to the request is then generally subject to a fee; in addition, the client must also reimburse the lawyer for cash expenses. Thus, a free initial consultation is only possible if this is expressly reserved in the e-mail. Otherwise, the client’s obligation to pay a fee begins with the awarding of the mandate.

If the e-mail lacks the aforementioned reservation, the client becomes liable to pay fees. In principle, the fee rate is determined by agreement prior to the acceptance of a mandate. However, in the case of e-mail mandates, such a fee agreement is often missing. In this case, the client is obligated to pay the so-called “ordinary hourly rate”. This fee is mainly based on the time spent by the lawyer. The time required increases with the complexity of the case. For example, the handling of cases that have points of contact with international law or require special knowledge is more time-consuming and thus also more cost intensive. It is therefore in the interest of both parties that a fee agreement is made.

The Fee Commission of the Zurich Bar Association has taken a clear stance on this issue:

“A client who requests action or clarification from the lawyer must be aware that the lawyer is not performing legally non-binding acts of courtesy, but that the lawyer’s services must be appropriately remunerated in accordance with Art. 394 para. 3 Swiss Code of Obligations. As soon as the lawyer acts on such a request from a potential client, a valid contractual relationship must be assumed” (ZAV, RB 2003, p. 22).