Every mandate starts with an agreement, whether explicit or implied. A clearly worded engagement agreement with terms of engagement creates clarity about service, fees and collaboration and prevents misunderstandings.
Legal classification
Engagements of lawyers, fiduciaries and advisers in Switzerland are as a rule mandates under Art. 394 ff. of the Code of Obligations. What is owed is careful performance in the client’s interest, not a particular result such as winning a case. A contract for work may apply instead where a specific result is owed, for example a defined opinion at a fixed price.
The core duties
The mandatary is liable for faithful and careful performance (Art. 398 CO), must account on request and hand over whatever it received from the mandate (Art. 400 CO). For lawyers, professional rules come on top, such as professional secrecy and the duty to avoid conflicts of interest.
Termination at any time
A mandate may be revoked or terminated by either side at any time (Art. 404 CO). If termination occurs at an inopportune time, the terminating side owes compensation for the resulting damage. According to case law this rule is mandatory and cannot be excluded by contract.
What terms of engagement cover
Scope of the mandate, fees and billing, advances, communication channels, file retention, handling of personal data and increasingly the use of IT and AI tools. A short provision on how AI is used and which safeguards apply creates transparency towards clients; background is in our article AI in law firms and fiduciary offices.
Digital mandate management
Engagement agreements and terms can today be concluded and managed digitally. What matters is that acceptance and the version of the terms are traceably documented and that storage meets professional secrecy requirements.