Legal liability

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The lawyer liability refers to the liability of the lawyer towards the own clientele, more rarely, to third parties. The client concludes an attorney's contract with the attorney , the subject of which is usually the attorney's service ( agency contract ). Like any other service provider, the lawyer is liable to his client for the proper performance of this service. The area of ​​law that deals with attorney's liability is called attorney's liability law.

Breaches of duty

The lawyer is liable for the culpable breach of his duties resulting from the mandate contract. These obligations exist primarily with regard to legal advice to the client, but also in representation. This advice and representation is based on the information provided by the client on the matter. In principle, it is not the lawyer’s responsibility to determine the facts . However, the lawyer has an obligation to obtain information. He must therefore prepare the facts for the examination of the legal situation by means of suitable questions. If there are contradictions in the presentation of the facts or in comparison to written documents, etc., the lawyer must try to clarify the facts further. The lawyer then has to provide the client with comprehensive and exhaustive legal information. Knowledge of the current legal situation and the highest court rulings is a must. The lawyer must analyze whether and how the desired goal of his client can be achieved. The lawyer has to protect the client from foreseeable and avoidable disadvantages. The lawyer must adhere to the principle of the safest route , unless the client consciously wants to take a certain risk. The lawyer will have to document this.

Compensation

If the lawyer has culpably violated his obligations under the mandate contract, the client or a third party has a claim for damages against the lawyer, provided that the breach of duty caused him damage. The so-called difference hypothesis is used to determine the damage . The client's financial position after the breach of duty is compared with the hypothetical financial position without the breach of duty. As a result, the injured party must stand as he would if the lawyer had not committed his breach of duty and had given him the right advice.

Burden of proof

The injured party must fully prove all facts substantiating the claim in the legal proceedings. On the one hand, this includes the formation and content of the mandate contract. This can be problematic, especially with private advice from the lawyer. On the other hand, the injured party must also fully prove the breach of duty by the lawyer. There is no reversal of the burden of proof. The damage can only be estimated by the court when determining the damage - i.e. if the breach of duty has been proven.

The following constellation is typical of the attorney's liability process: The client instructs his lawyer to bring an action against a debtor of the client due to an outstanding claim. The attorney made a mistake, which resulted in the dismissal of the lawsuit. In the following legal liability process, the lawyer takes on the role of the defendant (debtor). If a lawyer is found to have made a mistake (which the client has to prove), he is not liable if he can prove that the claim would have been dismissed even without his legal error or the claim brought about in the first trial, even if it was awarded by the court would have been, could not have been recovered from the debtor, z. B. because he was not solvent.

If the lawyer advises a process that is hopeless from the outset, for example because the client's claim is statute-barred and the debtor's defense of limitation was to be expected, the lawyer is not liable for the value of the claim, but for the so-called "litigation cost damage" . He has to put the client as he would if he had not led the process. Since the client is subject to the process and the costs of the proceedings are imposed on him, this means: The lawyer has to pay for the court costs and the legal costs of the other party. He cannot enforce his own fee claim because of the claim for damages made against him. If the client has already paid his lawyer, he can demand the money back.

See also

literature

  • Horst belonging (Hrsg.): Handbook of legal liability. Herne 1999, ISBN 3-89655-012-8 .
  • Brigitte Borgmann, Antje Jungk, Holger Grams: Legal liability . Verlag CH Beck, Munich 2005, ISBN 3-406-47273-7 .
  • Brigitte Borgmann: The case law of the BGH on lawyers' liability law from May 2010 to June 2011. In: NJW . 43/2011, p. 3133. (Previous article: "... until April 2010". In: NJW , 2010, 1924)
  • Wolfgang Heidl: The VVG reform, especially the direct claim. Publishing house Dr. Kovac, 2010, ISBN 978-3-8300-5017-9 .
  • Barbara Grunewald: The development of jurisprudence on legal professional law in the years 2009–2010. In: NJW . 49/2010, p. 3551.
  • Franz-Josef Rinsche: The liability of the lawyer and the notary . Carl Heymann Verlag, Cologne 1998, ISBN 3-452-23814-8 .
  • Klaus Fahrendorf, Siegfried Mennemeyer: The lawyer's liability. 9th edition. Heymann Verlag, Cologne 2017, ISBN 978-3-452-28815-8 .
  • Daniel Schnabl: Legal online databases in the light of legal liability. In: New legal weekly. Volume 60, 2007, ISSN  0341-1915 , pp. 3025-3030.
  • Norman M. Spreng: lawyer and client . Nomos Verlag, 2005, ISBN 3-423-58092-5 .
  • Max Vollkommer, Reinhard Greger, Jörn Heinemann: Lawyers' liability law . 4th edition. Verlag CH Beck, Munich 2014, ISBN 978-3-406-64282-1 .
  • Horst belonging: Handbook of legal liability . ZAP-Verlag, Herne 1999, ISBN 3-89655-012-8 .

Web links

Individual evidence

  1. ↑ Judgment of the BGH of March 29, 1983 In: NJW. 83, p. 1665.