1. EXERCISE OF THE ADVOCACY
1.1. In Spain, "Abogado/a" (Lawyer) is a person who, incorporated into a Spanish Law Association as practitioner and having fulfilled the necessary requirements for it, dedicate himself/herself professionally to advising, promoting and defending the legal interests of others, public or private. Lawyers can act individually or through collective law firms or professional companies.
1.2. GOMEZ DE MERCADO ABOGADOS SLP, hereinafter "the Firm", is a Professional Company registered not only with the Madrid Mercantile Registry, volume 23.938, folio 41, section 8, sheet M-429848, but also in the registry of professional companies of the Madrid Law Association (CI 235/1). Our professional address is located at Calle Jorge Juan, 65, Planta 2, 28009 Madrid, Phone (+34) 913 690 404, e-mail firstname.lastname@example.org
1.3. We are subject to the General Statute of the Legal Profession, approved by Royal Decree 658/2001, of June 22 [https://www.boe.es/eli/es/rd/2001/06/22/658] and the Code of Ethics [https://www.abogacia.es/wp-content/uploads/2019/05/Codigo-Deontologico-2019.pdf], as well as the other applicable European, national or corporate regulations.
1.4. Our obligations as Lawyers are:
• To carry out an honest, loyal, truthful and diligent professional conduct, not to disappoint the Client's trust, and to provide him/her with clear and professional advice regarding the matters that he/she entrusts us.
• To carry out our professional activities with the utmost zeal and diligence that the defence of the entrusted matter imposes on us, abiding by the technical, ethical and deontological requirements appropriate to the legal protection of said matter. In doing so, we are able to being helped by our collaborators and other Lawyers or technical advisers, who will act under our responsibility, unless the Client engages other Lawyers or advisers or authorizes us to do so, in which case their action will take place at the cost of the Client and under the responsibility of same.
In the event that the assignment is made at the same time to two or more law firms, professionals or independent or special counsels, each will act under their own responsibility, unless joint and several liability is agreed by all interested parties.
• Any other obligations that, with respect to the applicable regulations, derive from what has been agreed with the Client, as well as any other commitment envisaged in these Terms and Conditions or in applicable regulations.
1.5. The relationship with the Client must be based on mutual trust. It will only be possible to handle a matter by mandate of the Client or a duly authorized third party, or by appointment of the Law Association.
1.6. The professional legal services commit us to an activity, not an outcome. Hence, the outcome of any matter or conflict is subject to the facts thereof, the availability and validity of the supporting documents as well as the inherent risks and other factors outside of our control. Therefore, we do not make, nor can we make, any guarantee or promise regarding the outcome of any matter. We can only issue reports that contain professional evaluations of the probable outcome of a matter, litigation or an estimate of its possible economic consequences, if the request comes from the Client, who must be the exclusive recipient, or, where appropriate, his/hers/its auditors.
1.7. We will always try to find the most appropriate solution to fulfil the engagement, advising the Client in a timely manner regarding the possibility and consequences of reaching an agreement or resorting to alternative dispute resolution instruments.
1.8. While we are acting for the Client, we are obliged to carry out the engagement in its entirety, enjoying full freedom to use the legitimate means and those that have been lawfully obtained.
1.9. The Lawyer specified as the director of the engagement in the Letter of Engagement, or any other document or communication, will be the person directly responsible. Please contact him / her at any reasonable time if you have any concerns about any aspect of our professional practice or our relationship, including personal or financial aspects.
1.10. We will do everything possible to avoid changing the staff of the team that handles the engagement. Sometimes, however, the change may be inevitable, in which case, provided that the composition of the team has been agreed and the change may be relevant, we will try to notify the Client in advance or as soon as possible.
1.11. The Firm will always try to choose the best professionals for the Client's assignment, without any discrimination.
1.12. The Firm, as a professional company, and its Partners are covered by an insurance policy in accordance with the Law on Professional Companies and the regulations on the practice of the Legal Profession
2.1. The engagement may be executed on an Engagement Letter, signed by the Client or a duly authorised representative, a Professional Services Agreement, or any other written or electronic means that allows the assignment to be recorded (including an email exchange).
2.2. If a Letter of Engagement is executed, the same may contain:
• The scope of the engagement.
• Specific actions that are expressly included. Reference may be made, where appropriate, to any other services, such as expert reports, clarifying whether or not they are part of the estimate.
• The price for professional services shall appear clearly. Whenever the exact amount cannot be determined in advance, the bases that will serve for its determination must be pointed out
• The amounts that will be required for expenses or for other circumstances, which are not included in the price of services.
• The terms in which the payments are due and the criteria for the priority and imputation of the payments.
• The consequences of the early termination of the engagement due to resignation, loss of the object and other causes
• Any other commitments imposed by current legislation, especially the provisions of the Law on Prevention of Money Laundering and Terrorism Financing.
• The applicable general conditions.
• The way to resolve discrepancies.
3. INTEREST OF THE CLIENT, INDEPENDENCE AND CONFLICT OF INTEREST
3.1. The Firm and its members will act in the best way to defend the interests of the Client and its indications, but we are obliged to refrain from following the indications of the Client if doing so could compromise the observance of the principles that govern the legal profession.
3.2. Likewise, we must abstain or cease the engagement when discrepancies arise with the Client that may affect our freedom and independence in defence or advice, the preservation of professional secrecy or an objective conflict of interest
3.3. The Lawyers enjoy independence and, therefore, we are free to accept or reject the matter in which our intervention is requested, without the need to justify the decision.
3.4. We will not defend conflicting interests, whether our own or those of third parties. Hence, we shall not carry out the defence or advice of conflicting interests with others who are or have been defended or advised by us, or with our own, since loyalty to the Client is a fundamental principle of the legal profession.
3.5. In the event of a conflict of interest between two or more Clients, we will renounce the defence or advice of both, for the mandatory preservation of independence, unless expressly authorized by all to intervene in favour of any of them.
3.6. However, we may intervene in the interest of all parties acting as intermediaries or in the preparation and drafting of documents of a contractual nature, in which case strict and exquisite objectivity must be maintained.
3.7. We will not be able to carry out professional assignments that imply actions against a previous Client, unless it is ensured that there is no risk that the secrecy of the information obtained in relation to the former Client may be violated; or when in no way could the new Client benefit from those information. For these purposes, the type of matters that were assigned and the time elapsed will be taken into account.
3.8. In no case may professional assignments involving actions against a previous Client be assumed within the same procedure in which we have acted representing the Client, nor in the incidents, appeals, executions or new procedures brought about by the same cause.
3.9. We will not be able to accept the commission of a matter when the opposite party or a colleague has already made us a consultation regarding the same matter, by virtue of which we have acquired information that may jeopardize our independence, the obligation to preserve the professional secrecy or our duty of loyalty.
4. INFORMATION, COMMUNICATIONS AND DOCUMENTATION
4.1. As Lawyers we shall provide the Client with the following information:
• The opinion on the possibilities of their claims and foreseeable outcome of the matter, trying to dissuade the Client from promoting conflicts or bringing legal actions without foundation. This opinion constitutes in itself a professional engagement or part of it.
• The right to request free legal aid for your personal and financial circumstances.
• All those situations that apparently could affect our independence, such as family, friendship, economic or financial relationships with the opposing party or their representatives.
• The evolution of the entrusted matter (especially with regard to any event that produces a relevant change in the situation or requires changes to the agreed strategy or our prior advice), relevant resolutions, appeals, the convenience of an out-of-court settlement or alternative dispute resolution mechanisms. In administrative and judicial procedures, if the Client requires it, we will provide him/her with an electronic copy of the different documents that are presented or received, of the judicial or administrative resolutions that are notified and of the recorded hearings.
• The detailed account of the funds that we have received from the Client or for the Client, which must always be at your disposal, even if the Client does not request it, the relationship with the Client has ceased or the entrusted matter has terminated.
• The identity of the Lawyers participating in the fulfilment of our assignment, the Law Association to which they belong and who will assume the direction of the matter.
•The unfeasible viability of the filing of appeals or other actions against the resolutions that put an end, totally or partially, to the process. This communication must be made in advance for the Client to be able to obtain another opinion or entrust his/her representation to a different Lawyer.
• Any data or fact that is recorded in relation to the matter, as long as it does not entail a violation of professional secrecy and that may affect the outcome.
• The possibility of requesting the collaboration of another professional when the characteristics or complexity of the matter so requires.
• The regulations on prevention of money laundering and the obligation to claim data from the Client and to supply data, in certain circumstances, to the corresponding authorities in relation to any suspicion of money laundering. We will notify you of the request or exchange of any information as soon as we are legally permitted.
• Our estimate of the fees, at least approximately, or the basis for their determination, and the consequences that a judgment against our party may have regarding costs.
All this information must be provided in writing when the Client requests it in the same way, scrupulously respecting the confidentiality of communications, conversations and negotiations with other legal professionals, except with proper authorization.
4.2. The Client agrees to respond and cooperate with our requests for information and / or instructions promptly to allow us to carry out the engagement in the best possible way.
4.3. Unless otherwise required, communications will preferably be carried out by email.
4.4. The Firm will use information and communication technologies in compliance with the ethical standards of the Legal Profession and the obligations imposed by the regulatory standards of the information society. We will make a responsible and diligent use of information and communication technology, taking extreme care in preserving confidentiality and professional secrecy, and trying to avoid that communications are received and known by people other than their recipients.
4.5. Although we use virus protection software and take actions to reduce the risk of viruses on our systems, we cannot guarantee that email messages sent to you over the Internet, or documentation, information or advice supplied in any removable media are virus free. Consequently, the Client, who must take his/her own precautions, accepts that the Firm, as long as we have acted with the due diligence, is not to be held liable for the damages caused by computer viruses.
4.6. During the fulfilment of the engagement, the Firm will keep a copy of the communications and documents in electronic and / or paper format, unless otherwise agreed. Upon completion of the assignment, we will keep an electronic copy of said documents for a period of five (5) years, after which the Client agrees that we can dispose of them, unless the Client requests their return or consent to their removal before the end of the five (5) year period. Any deletion will be done confidentially. At our sole discretion and expense, we may retain an electronic copy of any document indefinitely, unless otherwise agreed.
4.7. Our working documents, drafts, and copies of all documents submitted by us remain our property, and any intellectual property rights, including copyrights, in any such documents remain with us. In particular, we will maintain our right to be identified as the author (s) and to object to the misuse of said documents
4.8. Any report or opinion in writing of our Firm can be used only by the Client, who will not disseminate them in any way without our specific permission regarding the purpose and the recipients of its dissemination.
4.9. The information received from the Client will be used exclusively to satisfy the needs of their defence and legal advice.
5. LEGAL PRIVILEGE, CONFIDENTIALITY AND DATA PROTECTION
5.1. The Firm and its members will keep secret all the facts or news that they know by reason of any of the modalities of their professional performance, and may not be forced to testify about them. This legal privilege includes all the confidences and proposals of the Client, those of the opposing party, those of the colleagues, as well as all the facts and documents that we have heard about or have forwarded or received by reason of any of the professional performance modalities.
5.2. Any type of communication between legal professionals, received or forwarded, is protected by legal privilege, and cannot be provided to the Client or contributed to the Courts or used in any other field, except with the express authorization of the sender and recipient. In case of change of Lawyers, this prohibition will be imposed on the substitute regarding the correspondence that the substitute has had with other colleagues, requiring the authorization of all those who have intervened . Notwithstanding the foregoing, the exceptions contemplated in the Code of Ethics of the Legal Profession or ordered by mandate of the judicial authority will be admitted.
5.3. All information related to the engagement (including its existence, content and possible conflicts between the parties) is confidential information both for the Firm and its members and for the Client, and none of the parties should disclose it, except to the members of your organization and advisers who may have (a) a "need to know" and (b) a labour, contractual or professional duty to maintain the confidentiality of confidential information to the same extent as the Firm itself or the Client itself. Hence, unless otherwise instructed, we may disclose any information that has been provided to us (including confidential information) with other collaborators or advisers who participate in the engagement and discuss it with them, unless otherwise agreed. Likewise, the disclosure of confidential information will be lawful when required by the competent authority. In the latter case, the party disclosing confidential information must immediately notify the other party, if legally permitted, and, to the extent reasonable and legally possible, consult with the other party before the disclosure about the form, nature and purpose of said disclosure.
5.4. Without your permission, we will not use or refer to the Client person or entity by name or this assignment in any promotional material, media, or similar circumstances.
6. FEES, EXPENSES AND COSTS
6.1. For our professional services we will receive remuneration or fees as well as the reimbursement of the justified expenses that we have incurred, such as the costs of travel and stay outside the Community of Madrid, mail, facsimiles by Post and messaging, as well as, where appropriate, the fees of other professionals who must intervene (such as notaries, experts or procurators) as well as possible deposits or court fees, although we will only take charge of your payment when it has been agreed upon or the collaborators have been chosen by us at our expense, and, therefore, the Client must fulfil the corresponding payments otherwise. The expenses of the ordinary operation of the Firm (e.g. office supplies) will not be passed on.
6.2. The provided estimate of fees is valid only if acceptd in the term of one month and it includes those tasks expressly comprised therein. Hence, activities or appeals before different entities or authorities are expressly excluded. In particular, unless so provided, the estimate for a non litigation case will not involve the related litigation, and the estimate of fees for administrative proceedings or litigation will not include any appeals before a different administrative or judicial authority against the judgment or resolution that ends the procedure. Except as expressly provided, the estimate of fees will not include the execution of the resolution that ends the procedure unless it is just a simple request.
6.3. Our fees may take the form of fixed (single or milestone), periodic or hourly remuneration. In the absence of an express agreement, the Firm will apply an hourly rate and, for the procedural actions, the guiding scales of the Law Association of Madrid will be taken into account as a reference. However, we will be happy to offer you an estimate with milestones, a discount on the hourly price or on the scale of the Law Association, adjust a match or any other agreement that is satisfactory to both parties.
6.4. The "success fee" in the strict sense is excluded, understanding as such the agreement between the Lawyer and the Client, prior to the termination of the matter, by virtue of which the Client agrees to pay only one percentage of the result of the matter, regardless of whether it consists of a sum of money or any other benefit, good or value that the Client achieves for that matter. Notwithstanding the foregoing, it will be possible to apply said form of remuneration in combination with any of the above.
6.5. The fees will be increased by the corresponding Value Added Tax (21%) or the other withholdings or tax repercussions that are legally applicable.
6.6. To make our fees effective, we will deliver a bill or invoice to the Client, who must comply with the corresponding legal and tax requirements, where we will express in detail both the determined concepts of the fees and the list of expenses incurred and pending reimbursement. The fees must be paid into the bank account that will be provided within thirty (30) calendar days after the invoice is forwarded, unless otherwise agreed on the term (which may never exceed 60 calendar days) or form of payment. A proforma note may be issued, in which the Client will be notified in advance of their fees, without requiring payment. Likewise, we can invoice the Client at all times for the costs that have been passed on to us and we should not bear them.
6.7. The provision of funds on account of fees may be requested both prior to and during the fulfilment of the engagement. Its amount must be in accordance with the provisions of the matter and the estimated amount of the final fees. The lack of payment will authorize to resign or condition the acceptance of the professional assignment or to cease it. Likewise, an amount may be requested to provide funds to cover the expenses incurred by the assignment. The corresponding supporting document will be issued of all the provisions of funds received. Payments on account of fees must comply with the invoice issuance and other obligations imposed by tax legislation. It will be mandatory to issue the appropriate settlement of the fees and of the provision of funds received and make the remaining amount available to the Client, as the case may be, in the shortest possible time since the defence of the matter ceases.
6.8. The Client is informed that in the judicial processes the intervention of third parties may be necessary, such as procurators or experts, as well as certain deposits or judicial fees, whose cost, unless otherwise expressly agreed in writing, must be assumed by the Client.
6.9. In the event that the judicial or arbitration process concludes with a resolution favourable to the Client's interests, it is possible to being reimbursed of the costs incurred by the opposing party, including Lawyer's, procurator's and expert's fees. With regard to Lawyer's fees, the Client will be reimbursed for the fees that have already been invoiced and paid to us. The Firm will have the right to collect all the agreed fees and, to the extent that this limit is exceeded, the amount of the costs paid by the opposing party. The Firm will issue, where appropriate, the corresponding additional invoice / s to the Client.
6.10. The Client is informed that, in the event of an unfavourable judicial or arbitration decision, our Client may be the party ordered to reimburse the costs incurred to the opposite party. With regard to the lawyer's fees, it is foreseeable the application of the scale of fees of the corresponding Law Association (e.g. the scale of Madrid to which we have previously referred). Regarding the figure of the procurator, the current Tariff passed by Royal Decree will be applied.
7. CLIENT'S FUNDS
7.1. When in possession of money or securities of Clients or third parties, there is an obligation to keep them immediately deposited in a specific account opened at a bank or credit institution. These deposits may not be arranged or confused with own funds. The appropriate accounting or record book of such amounts must be kept. In all cases, it must be answered that the origin of the funds comes from a specific natural or legal person and the certainty of their existence.
7.2. The funds must be directly linked to the Clients and to the actions that have been entrusted to them. The funds deposited in said account or accounts must be separately and clearly individualized, preferably through subaccounts, as corresponding to the various processes or consultations that the professional assumes so that their movement of entry and exit, their purpose and use can be identified. that such funds have been made.
7.3. The movement of funds between subaccounts is prohibited, except in justified cases, and no such subaccounts may present a debit balance.
7.4. Unless legal provision, court order or express consent of the Client or the third party on whose behalf it is made, any payment made with said funds is prohibited. This prohibition even includes the deduction of the fees themselves, unless expressly authorized in writing.
7. 5. The exact identity of the person delivering the funds must always be verified, this obligation being governed by the preventive rules on money laundering.
7.6. The funds received or their balance, except for duly justified exceptions, must be returned or credited to whoever provided them, with the corresponding rendering of accounts.
7.7. Funds received may not be held for longer than is strictly necessary even if professional fees are owed. However, the Client expressly authorizes the compensation and self-assessment.
8. TERMINATION OF OUR SERVICES AND CHANGE OF LAWYER
8.1. The services will be terminated: 1) by the fulfilment of the assignment, 2) by the impossibility of its fulfilment, 3) by the appearance of a conflict of interest or a situation that harms the independence of the Firm and 4) by the substantial breach of any of the parties at the request of the complying party. When the order contains milestones or different stages, the Client may choose to terminate the services at the end of each stage. If the Client terminates the engagement without justification, then the Client will be obliged to pay all the agreed fees. In any case, you must pay the fees accrued (except for substantial breaches of the Firm) and expenses incurred.
8.2. It will be considered that there is a substantial breach of the Client due to 1) the lack of instructions, information or documentation needed to execute the order, 2) providing false information or documentation and 3) the lack of payment of the provisions of funds and invoices due by the Client in a timely manner.
8.3. In the event that we resign our engagement, we must notify the Client in writing and in a reliable manner and take the necessary actions to avoid his/her defencelessness and the loss of rights. The resignation must always be made in sufficient time for the substitution in defence or advice to be exercised with full guarantee.
8. 4. If the Client entrusts his/her defence to another Lawyer, both the Client and whoever assumes the new assignment will be obliged to notify us. The communication will be made immediately after accepting the assignment and before starting any action. We are then obliged to acknowledge receipt of the communication as soon as possible, making the information and documentation related to the matter in our possession available to the new Lawyer, as well as providing the data and information that may be necessary.
8.5. In the event of replacement, there remains the obligation to respect and preserve legal privilege regarding the information and documentation received, with special attention to the confidentiality of communications between the professionals who have intervened.
8.6. The change of lawyer does not limit the right to collect the fees of the Firm or the obligation of the Client to pay them, without prejudice to a possible discrepancy.
8.7. If the defence is being carried out in a matter that is processed before a Court, the previous Lawyer may communicate that it ceases to avoid future responsibilities. In any case, the person who, after the substitution, assumes the legal address must do so.
9. GOVERNING LAW AND DISPUTE RESOLUTION
9.1. The engagement and professional services rendered thereof will be governed by Spanish Law, whatever the address or residence of the Client.
9.2. If there is any doubt or discrepancy between the parties, the Client is requested to raise it with the Lawyer director of the engagement or the Managing Director of the Firm, or vice versa. Both parties will try to resolve the doubt or discrepancy in good faith.
9.3. If the conflict cannot be resolved, both parties submit to the exclusive jurisdiction of the Madrid courts and tribunals, expressly waiving any other jurisdiction that may correspond to them.
9.4. If the Firm is held liable, such liability shall be capped to the amount of the fees received, except in case of fraud.