Lawyer's civil liability: forced by your client to insist on a procedure doomed to failure?

September 18 , 2020 // Specialty : Professional Liability: lawyers, doctors and other professionals

Published in Economist & Jurist

The Provincial Court of Badajoz has sentenced a lawyer to pay his former client the amount of 14,754.83 euros, for not giving him notice of the risks involved in continuing with an impossible-to-win procedure First of all, to put in context, what requirements are required to activate the lawyer's civil liability? According to SSTS 462/2010, of July 14 and 447/2016, of July 1, the following must attend: • breach of his professional duties; • proof of non-compliance; • existence of an effective damage consisting of a certain decrease in the possibilities of defense; • existence of a causal link assessed with legal criteria of objective imputation; • Establishment of compensation equivalent to the damage suffered or proportional to the loss of opportunities. In the case of judicial defense, these duties of the lawyer are limited to the respect of the "lex artis", of the technical rules of the legal profession commonly accepted and adapted to the particularities of the case. The jurisprudence has not exhaustively specified an enumeration of the duties that correspond to the exercise of this type of professional activity of the lawyer, although it has outlined, by way of example, some aspects that the exercise of this service must include: inform about the seriousness of the situation, the convenience or not of going to court, the costs of the process, the possibilities of success or failure, comply with the deontological duties of loyalty and honesty in the performance of the assignment, observe procedural laws, apply the necessary legal knowledge to the problem. The error: four non-existent money execution attempts. In the case of the execution of a favorable judgment for his client, in which the defendant was condemned to an obligation to make (but no monetary claim), the lawyer presented a first demand for impossible monetary execution because it did not exist. After filing him, again, the lawyer filed two other demands for execution with that same monetary object, which were inadmissible, the Court reiterating "that there was no room for execution because the sentence that was intended to be executed did not contain any monetary conviction." Not enough with the foregoing, the defendant lawyer tried again, for the fourth time, to obtain the execution of a pronouncement of a monetary sentence that was nonexistent, which should have been made known to his client, to warn him of the obvious risk of a new failure with the danger of being awarded costs, as it actually happened: 14,754.83 euros in costs that were imposed in a procedure that was completely useless for the interests that had been entrusted to it. Does the customer insist? Have him sign a document that proves it. The Provincial Court of Badajoz points out that the defendant lawyer “cannot hide behind the argument that if he presented those executions it was at the insistence” of his client. "You cannot hide behind that argument, because the legal technician is the defendant today," not his client, "to whom he should have pointed out the more than probable risks that the claim of such execution, in those terms, they would not prosper, with the consequent costs, as it was in reality ”. The recent SAP of Badajoz 317/2020, of May 29, argues that “in the face of this alleged obsession and insistence of his client, he should have saved his responsibility, making him sign a document that, if he insisted on requesting that monetary execution, he was it due to the insistence of his client and against his professional judgment or else he should have given up on continuing to defend his client's interests ”. But no, "none of these actions was observed by the defendant today, thus failing to fulfill his professional duties both of a technical-legal nature (warnings of the risks of promoting, up to four times, such a crazy Execution, as impossible) as of a deontological order of loyalty and honesty in the defense of the entrusted interests ”.

Responsabilidad civil del abogado: ¿obligado por tu cliente a insistir en un procedimiento condenado al fracaso?

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