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 causal damage. The so-called difference hypothesis is used to determine the damage. The client’s financial situation after the breach of duty is compared with the hypothetical financial situation without the breach of duty. As a result, the injured party must stand as it would be if the lawyer had not committed his breach of duty and advised him properly. You can consult appeal lawyer for any of your related issues at Brownstone Law Firm.
The lawyer is liable for the culpable violation of his obligations resulting from the mandate contract. These obligations exist above all with regard to legal advice to the client, but also in terms of representation. This advice and representation are based on the information provided by the client on the facts. The determination of the facts is fundamentally not the lawyer’s job. However, the lawyer is required to provide information. He must, therefore, prepare the matter for the examination of the legal situation by means of a suitable question. 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.
Perhaps, the lawyer must then provide the client with comprehensive and exhaustive legal information. Knowledge of the current legal situation and the highest judicial decisions is mandatory. The lawyer must analyze whether and how the desired goal of his client can be achieved. The lawyer must protect the client from foreseeable and avoidable disadvantages. The lawyer has the principle of the safest way unless the client deliberately wants to take a certain risk. The lawyer will have to document this.
Burden of Proof
The following constellation is typical for the legal liability process: The client instructs his lawyer to file a lawsuit against a debtor of the client for an outstanding claim. The lawyer makes a mistake, which results in the dismissal of the lawsuit. In the following legal liability process, the lawyer now takes on the role of the defendant (the debtor). If an error is found by the lawyer (which the client must prove), the client is nevertheless not liable if he proves that the lawsuit would have been dismissed without his lawyer’s error or the claim brought in during the initial trial, even if it was approved by the court could not have been collected from the debtor, e.g. B. because this was not solvent.
As a matter of fact, the lawyer advises on a process that is hopeless from the outset. For example, because the client’s claim is time-barred and the debtor’s statute of limitations should be reckoned with. The lawyer is not liable for the value of the claimed claim, but for the so-called “litigation cost damage”. He must position the client as it would be if he had not led the process.
As the client is subject to the lawsuit and the costs of the proceedings are imposed, this means that the lawyer has to pay the court costs and the legal costs of the other party. He cannot enforce his own fee claim due to the claim for damages against him. If the client has already paid his lawyer, he can request the money back.