Le guardian of a person “protected” must “to administer” its assets, but he cannot incur expenses that would reduce it (under articles 465-4 and 505-1 of the Civil Code). When he uses a lawyer to defend his interests, he therefore does not have the right to conclude a fee agreement “proportional” to the result: the amount of these fees, unknown a priori, could, in fact, encumber the assets.
Such “act of provision “ has been prohibited since a decree of December 22, 2008 (appendix I). The lawyer, supposed to know it, must submit the agreement to the guardianship judge, as the following case reminds us.
In 1990, an infant, Sophien X, was the victim of a car accident which left him disabled. In 2007, his mother, first a legal administrator, and soon a guardian, called on a lawyer, Mr.and Y, so that he negotiates with MMA IARD, insurer of the person responsible for the accident, the final compensation for his damage. Madame X, of modest means, wishes to remunerate Mand Y to the percentage of sums recovered. He informs her that it is forbidden, the percentage can only complete a fixed part. He therefore had him sign a fee agreement providing for a symbolic fixed amount (1,000 euros) and a performance fee of… 20%.
Mand Y should have submitted this agreement to the judge of guardianships, supposed to look after the interests of Sophien. The magistrate would no doubt have refused it, noting that the most experienced lawyers only take 10% for difficult cases, and that the compensation for a road accident, based on scales, does not present of legal difficulty. He probably would not have accepted that Mr.and Make it bear the 20% on “the whole” sums recovered, including a monthly life annuity, intended to finance the assistance of a third person, and destined to disappear if the young man is admitted to a nursing home.
Suspended for two years
In 2016, when MMA agreed to pay Sophien an indemnity of 1.2 million euros as well as an annuity of 2,462 euros, Mand Y claims his due: 533,489 euros (he converted the annuity into a capital of 1.1 million euros). Madame X disputes the amount with the President of the Lyon Bar Association, Ms.and Laurence Junod-Fanget.
This one considers that the agreements of fees are null, since passed without legal authorization. It estimates the amount of due diligence performed at 72,000 euros. The Lyon Court of Appeal, which the lawyer seized, reduced it further, to 19,200 euros, or eighty hours of work and not two thousand, as he assured, which the Court of Cassation validated , May 23, 2019 (18-15.788).
The president also decides to initiate disciplinary proceedings, supported by her successor, Mr.and Farid Hamel. On September 26, 2018, the regional disciplinary council issued a two-year ban on practice. Mand Y challenges this sanction, but the Lyon Court of Appeal, then the Court of Cassation, on March 16 (2022, 20-12 866), confirms it: he “breached the rules of probity, humanity, honor, delicacy, moderation and disinterestedness constituting the values of the lawyer’s oath”.