The Second Civil Court of Talcahuano accepted the demand for collection of professional fees rendered in court, filed by a lawyer against his client, in whose favor he filed protection actions against Isapre Cruz Blanca.
In his libel, the plaintiff states that the defendant contracted his professional services for the purposes of sponsoring two constitutional actions, in order to avoid the unilateral increase of his health plan for concepts of adequacy of the base price and GES, agreeing that the fees for the Entrusted procedures would correspond only to the personal costs generated in said lawsuits, for which the defendant did not disburse money in advance.
He adds that, once the sentences in question were final, the defendant conferred sponsorship and power of attorney to another lawyer without notifying him, the attempts to communicate with him to obtain a response being unsuccessful, which -in his opinion- reveals an act in bad faith and with a clear intention to totally avoid paying fees for professional services rendered in court.
Responding to the lawsuit, the defendant maintains that he actually hired the services of the plaintiff, but the agreed fees corresponded to 50% of the personal costs of each trial, and that he was forced to hire the professional services of another lawyer, who sponsored the actions of protection, since until that moment the plaintiff had not carried out any action other than to present the appeal, since the case advanced only by informal resolutions of the Court of Concepción, so that only the payment of the costs for the actions carried out was obtained. by the second lawyer.
In this regard, the sentencer refers that it is “(…) an element of the nature of the mandate that it is onerous, which follows from article 2158 No. 3 of the Civil Code, which establishes as an obligation of the principal, to pay fees to the president; the one that does not require an express clause, being the determination of its amount delivered to the parties, the law, the custom or the judge, and the usual thing is that this consideration is paid on the basis of each commissioned procedure; and whoever alleges a different way in which the payment of the fees is agreed must prove it”.
Next, based on the evidence provided to the process and the acknowledgment made by the defendant, it maintains that there is indeed a contract for the provision of professional services between the lawyer and the defendant, since the former sponsored the protection appeals filed before the Court of Concepción , in accordance with the provisions of No. 2 of the Agreed Order on Processing and Judgment of the Appeal for the Protection of Constitutional Guarantees, without the need for a special mandate to do so. In addition, it considers that the actor’s intervention was successful for the interests of the defendant, despite being an obligation of means and not of results, since said protection resources were accepted, “which reinforces the idea of the existence of the professional service provided by the plaintiff”.
It adds that “the right to demand payment of fees arises when the provider of professional services fully carries out the business entrusted to him. In the aforementioned case, the defendant obtained a favorable resolution regarding the protection appeal filed against Isapre Cruz Blanca SA on March 26, 2020 and June 25, 2020, with which it managed to annul the increase in the base price of the same health plan; which logically merits a consideration in money as a solution or payment for the work or service provided (…)”.
Regarding the amount of the fees, it notes that article 2117, second paragraph of the Civil Code provides that, “the remuneration (called honorary) is determined by agreement of the parties, before or after the contract, by law, custom, or the judge. By virtue of this, and considering that in the species the amount of the fees cannot be established according to the first three forms indicated, since the agreement of the parties in this sense is not expressly recorded, the law does not set it in this type of contracts, nor is there any custom in this regard, he concludes that he must set them “bearing in mind the accompanying documentation, especially resolutions that regulate personal costs (…), the writings that account for the consignment of the amounts ordered to be paid by the appealed, and the principles of fairness, justice, the uses, practices or behaviors that are generally used to set this type of fees, and also the principle of good faith that must prevail in any contractual relationship.
Ultimately, it accepted the demand for collection of fees and ordered the defendant to pay the sum of $200,000, with readjustments and interest.
See judgment of the 2nd Civil Court of Talcahuano RIT C-1219-2021.