VwGH: No Success Bonus for Legal Aid Lawyers

Apr 7, 2023 Benn-Ibler Rechtsanwälte

The Austrian Administrative Court (Verwaltungsgerichtshof, hereinafter VwGH) has found the granting of a success bonus for legal aid lawyers to be incompatible with Section 16 (4) of the Austrian Bar Code (Rechtsanwaltsordnung, hereinafter RAO).

In the original case, a lawyer had been appointed as defence counsel in large-scale criminal proceedings. He submitted his fees under Section 16(4) RAO), which included a 50% success bonus as per Section 12 of the General Fee Criteria (Allgemeine Honorar-Kriterien, hereinafter AHK). Section 12 AHK allows for a 50% success bonus in proper criminal cases, especially if the proceedings are discontinued or the verdict is ‘not guilty’.

The Austrian Bar Association (Rechtsanwaltskammer, hereinafter RAK) dismissed the bonus fee claim because the Austrian Lawyers' Fees Act (Rechtsanwaltstarifgesetz, RATG) does not provide for bonus fees. Section 12 AHK is optional.

The VwGH ruled in favour of the RAK:

In accordance with Section 16 (4) RAO, a lawyer acting as a defence counsel in proceedings with above-average costs is entitled to appropriate remuneration. This provision is based on considerations of the Austrian Constitutional Court according to which the principle of equality requires that in the case of extensive and work-intensive representation by legal aid lawyers individual remuneration by way of exception shall be granted.

In this respect, the AHK can be used to assess the commensurability of fees. This does not mean, however, that special remuneration pursuant to Section 16 (4) RAO must correspond to AHK fees in all points.

Above all, however, it is a matter of chance whether a legal aid lawyer is assigned a promising case. Success bonuses would therefore lead to unjustifiable discrimination of defence lawyers with cases that are not very promising compared to those with successful cases. The irrelevance of the success of proceedings for the calculation of a special remuneration is also supported by the fact that an annual statement of account with a cut-off period must be submitted. This contradicts the law’s intention to await the outcome of proceedings before a success bonus should be granted or not.

The granting of a success bonus therefore violates Section 16 (4) RAO.

VwGH Ro 2022/03/0059 (19.12.2022)