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Date: February 26, 2019
Posted by: CPDMA team

STJ allows fixing of success fees after withdrawal of the party

The 3rd Panel of the Superior Court of Justice (STJ) determined the arbitration of successful fees to lawyers even after the party withdrew from the case. According to the collegiate's understanding, the unilateral and unjustified termination of the contract with a success clause by the client constitutes abuse of the right. The Court's decision was unanimous and was based on the vote of the rapporteur, Minister Nancy Andrighi.

The matter was judged in an action originating from the Court of Justice of the State of Tocantins (TJTO). According to the file, the party signed a contract with a success clause with the lawyers. That is, he would only have to pay the fees if he won the action. After 15 years without trial, however, the client withdrew from the process and terminated the contract with the lawyers, who filed a lawsuit to claim the fees.

In the first instance, the claim was granted, but the decision was reversed in the Court of Justice. The defenders appealed to the STJ through REsp 1,724,441, on the grounds that even if the contract only provided for payment at the end of the process, in case of success, the unilateral termination modified the contractual relationship. In this way, payment would be due to the defenders.

The lawyers asked that the fees be arbitrated in 20% of the value of the case or determined by the court of origin. The rapporteur of the case, Minister Nancy Andrighi, responded to the second request, being unanimously accompanied by the 3rd Panel.

For her, “it is undeniable that the contract for the provision of legal services signed with a success clause is anchored in a true relationship of trust, to the extent that, if the risks initially assumed by the parties are linked to the final result of the judgment, there is an expectation right that the bond between them lasts until the termination of the process, which, evidently, presupposes a duty of fidelity established between the lawyer and his client”.

On February 21, the Special Court analyzed the possibility of setting fees in cases in which the party waives the action to join the tax installment program. The understanding in the collegiate, however, was in the opposite direction to that of the 3rd Panel. Due to Law 13,496/2017, the Special Court must change its position, taken by means of a repetitive appeal, which allows the payment of fees in these cases.

Source: Pedro Alves via Jota.

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