An attorney’s contract that is concluded in the course of distance selling can be revoked – however, this does not only apply because the mandate came about via means of communication: The question is whether there is a sales or service system organized for distance selling.
In this respect, the Federal Court of Justice has already made it clear earlier that a sales or service system organized for distance selling cannot be affirmed for a lawyer “if it only has the technical possibilities to conclude a lawyer’s contract in distance selling, such as a letterbox, electronic mailboxes and / or telephone – and provides fax connections that are otherwise required to manage the operation of a law firm ”. Simply placing an order by email or phone is not enough – the Federal Court of Justice (IX ZR 133/19) was able to deepen this again at the end of 2020.
The BGH now explains in more detail that the external image is of particular importance when it comes to the question of a company geared towards distance selling:
This is the case with a lawyer, for example, if he has organized his office in such a way that the client and lawyer and the lawyer are typically not required to be present in person at the same time for the mandates he is aiming for, neither for the contract negotiations nor for the conclusion of the mandate contract actively promotes the issuing of a mandate to third parties in an external relationship using only means of distance communication.
Burden of proof when concluding a contract
A lawyer who has concluded an attorney’s contract using only remote means of communication must present and prove to the Federal Court of Justice in what form he has organized his law firm with regard to negotiations and the conclusion of an attorney’s contract.
In doing so, he must first and foremost demonstrate and prove that the evidence suggesting a sales or service system geared towards distance selling does not in his case allow any conclusions to be drawn that his law firm is set up to deal with contracts within the framework of such a system. The lawyer can also demonstrate and prove that he has not set up such a system and that the exclusive use of means of distance communication during contract negotiations and conclusion of contracts occurred only by chance, for example for special reasons in individual cases. In the present case, however, the BGH did not have to say anything more specific, because the case was quite clear, as the guiding principle reveals:
If a lawyer specializing in a limited area of law is active throughout Germany, if he represents clients from all federal states and if he receives up to 200 new inquiries for mandates per month from all over Germany, this can be done through Germany-wide advertising on the homepage in connection with the content of his website for speak of a sales and service system organized for distance selling.
(Further below then 🙂 Under the keyword “mandate granting” she explains that the place reference is becoming less and less important, the supposed personal availability is not decisive and distance does not play a role. Thanks to her state-of-the-art technical equipment, she can process clients’ concerns quickly and without wasting time.
Advertising does it …
The application of one’s own performance reveals how one works – that is why the appearance of a lawyer on the Internet is “of considerable importance” when it comes to this question with the BGH:
The planned advertising of an entrepreneur with the offer to conclude a contract using only means of distance communication speaks in favor of a distance selling organization (…)
In view of up to 200 new inquiries for mandates per month from all over Germany with only one head office and three further contact points, these indications in their entirety speak for the fact that the defendant has set up its law firm so that contracts can be concluded at any time and repeatedly without simultaneous personal Presence of the parties in large numbers are possible without the defendant having to take special measures.
It just depends, the principle remains that just because the lawyer’s contract was concluded by email or telephone does not mean there is no right of withdrawal. But it is different if this is obviously the standard business model – a high number of mandates, which cannot be reconciled with the small number of local offices, is a significant factor; Likewise, if you yourself take the view that personal contact is unnecessary anyway.
The question of how to define one’s own performance begins here. -We are of the opinion that, especially in criminal law, the personal impression is decisive. A guide that you can’t trust because it just doesn’t harmonize, and you won’t be able to accept its advice. Therefore, in our opinion, a personal conversation should always be at the beginning in which you get to know each other (!) And everyone can consider whether a cooperation makes sense. That is why we are only active regionally, for example! In many standardized areas of civil law you may see this differently – but I personally think the more standardized something is, the more suitable it is for legal tech offers and less for the complex, personalized work of a lawyer.
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Jens Ferner
Lawyer—
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