Safest Path Principle
The principle of the safest way in German law states that a lawyer or tax advisor has to take the safest way when fulfilling his duties towards his client and in order to achieve the legal protection goal specified by his client . The principle of the safest way is at the center of numerous liability processes between client and lawyer. The principle applies first and foremost to advising clients, but is also applied to practically all obligations arising from the legal contract. The German Federal Court of Justice (BGH) generally applies the principle as a standard of care to the question of the lawyer's duty to provide information, the right to receive payments and the duty to instruct.
Required reading
The client who transfers litigation to the lawyer can trust that the specialist is up to it. In principle, the lawyer is responsible for every legal error. The lawyer must have a command of the relevant current laws and acquire the legal knowledge that is necessary for assessing the relevant legal case. Relevant specialist journals and current comments are to be consulted to obtain information. The Palandt is still to be regarded as the standard commentary in civil law. With regard to the specialist journals, NJW and MDR are subject to regular evaluation. A tax advisor who disregarded established case law has made himself liable for damages. However, no obligation to read special magazines regularly is assumed. Only if the highest court rulings on a topic do not yet exist or are doubtful should, as an exception, a discussion of literary opinions be necessary. Then it is also necessary to deal with lower-level jurisdiction. If the legal situation has only recently changed, there is an increased level of required attention. The safest way should also be observed in the case of emerging changes in case law, but this does not result in any recourse consequences for unforeseeable changes in case law. An obligation to research the lawyer in an online database must be presented and proven by the client. Even in times of technical progress, this is still just an option for timely information procurement. The courts approve a realistic tolerance framework when taking note of relevant decisions. A waiting period of four to six weeks from publication can be assumed.
criticism
Critics complain that the stereotyped requirement of the BGH that the safest and most risk-free path the lawyer should take is an inadequate measure of legal obligation and liability. This requirement leaves the norm of the objectively typical average lawyer and calls for an inadmissible ex-post view . It is unsuitable from the outset when it comes to prognoses, such as process prospects, recommendations for comparison , or the assessment of human behavior or health and economic developments. It cannot be reconciled with the considerations of expediency that are important for the client. First of all, the lawyer has to propose the correct, i.e. legally justified and permissible and also safe way. He may only take a legally permissible but questionable path with the consent of the client. In principle, the safest way would do justice neither to the risk involved in any litigation nor to the interests of the client and ultimately not to the lawyer's position as an independent judicial body .
Individual evidence
- ↑ a b c See Borgmann / Jungk / Grams, Anwaltshaftung, 4th edition 2005, § 21, marginal no. 131, p. 159
- ^ Judgment of the BGH of March 29, 1983, NJW 83, 1665
- ^ Judgment of the BGH of May 29, 1984, NJW 84, 785
- ^ Judgment of the BGH of October 10, 1985, NJW 86, 581
- ↑ BGH NJW 1993, 2538
- ↑ OLG Koblenz , NJW 1989, 2699
- ^ BGH NJW 1982, 97
- ↑ BGH NJW 2001, 675
- ↑ BGH NJW 2009, 987
- ^ OLG Zweibrücken , NJW 2005, 3358
- ↑ BGH NJW 2001, 146
- ↑ OLG Munich , NJW-RR 1991, 803
- ↑ BGH NJW 2001, 675
- ↑ BGH NJW-RR 1993, 245
- ↑ BGH NJW 2011, 386
- ↑ BGH NJW 1993, 3325
- ^ BGH, decision of January 11, 2007, IX ZR 55/03
- ↑ Schnabl, NJW 2007, 3025
- ↑ BGH NJW 2001, 675
- ^ Lange, DB 2003, 869
- ↑ a b c d Borgmann, marginal note 142, p. 167
- ↑ a b See Vollkommer / Heinemann, Lawyers' liability law, 2nd edition 2003, marginal no. 288