Negligence on the part of the lawyer who filed the action for division of the family home when the community property regime had not yet been liquidated

June 06 , 2025 // Specialty : Professional Liability: lawyers, doctors and other professionals

Published in Diario La Ley

Her actions did not conform to the standards of professional practice, resulting in actual damages to the plaintiff (the amounts awarded for costs in both instances), and her actions contrary to professional practice are causally related to those costs.

The plaintiff filed a civil liability claim against his lawyer for negligence in the provision of her professional services.

The defendant lawyer, acting on behalf of her client, initiated civil proceedings seeking the division of the family home, even though the community property regime to which the home belonged had not yet been dissolved.

The Provincial Court of Madrid upheld the judgment issued by the Court of First Instance, which found the defendant liable for professional negligence and granted the plaintiff's claim for damages.

The ruling states, firstly, that the lawyer must assume responsibility for the breach of professional standards attributed to her, as she was the professional in charge of the case. She cannot be exempt from this responsibility by belonging to a law firm, arguing that the firm assigned her to the case even though she did not consider herself knowledgeable or experienced enough to handle it. This is because these are internal employer-employee relationships, unrelated to the client who entrusted the matter to the firm.

The Court finds the lawyer's responsibility evident in light of her allegations and requests in the lawsuit, as she decided to pursue an action for the division of jointly owned property, the success of which necessarily depended on the prior liquidation of the marital property regime. Consequently, since this liquidation had not taken place, the action could not succeed, given that the property could not be divided while it remained part of the marital estate.

Hypothetically, the first-instance judgment could have been overturned on appeal had the proceedings been conducted correctly. However, given the grounds for appeal, it was impossible for the appeal to succeed. The dismissal of the action for partition of jointly owned property was not adequately challenged; nothing was argued regarding the dismissal or the arguments presented by the trial judge, which essentially stated that the house could not be divided while the division of marital property was pending. Therefore, it can be concluded that the appeal was doomed to fail.

Consequently, the outcome is attributable to the terms in which the litigation was resolved in the first instance, a consequence of the terms in which the claim was presented. The lawyer (and the contracting firm) bears responsibility for having approached the litigation incorrectly, since it was not possible to proceed with the division of jointly owned property, the marital home, while the community property regime, to which the house belonged, had not yet been dissolved.

Consequently, the Court concludes that the necessary requirements exist to declare the civil liability of the defendant lawyer, as her professional conduct did not conform to the requirements of the lex artis, she caused actual damage to the plaintiff (consisting of the amounts of the court costs in both instances) and there is a causal relationship between said conduct contrary to the lex artis and the damage suffered by her client.