Lawyer's Professional Fault and Liability

Extract

[...] The characterization of non-performance depends on the nature of the obligation. It is necessary to distinguish the hypotheses in which the lawyer must achieve a result for his client - in which case the latter is a debtor of a result obligation - from the hypotheses in which the lawyer must implement all the means he can to achieve the expected result by his client, but without being accountable for a possible failure, which makes him a debtor of a means obligation. [...]

[...] The contract that binds the lawyer to his client obliges him to fulfill a series of obligations that can engage his liability in case of non-execution. According to Article 1104 of the Civil Code, contracts must be executed in good faith. Jurisprudence deduces from this article the existence of an obligation of advice and information at the charge of the lawyer, which is due regardless of the mission entrusted to the lawyer: assistance or representation, legal or judicial field. In strict terms, the obligations owed by the lawyer to his client require him to provide objective information. [...]

[...] The principle of common law in contractual matters of damage repair is applicable. As for the loss of chance, as mentioned earlier, only the lost chance is compensable. The client cannot obtain what they would have received from the courts if their action had been favorably received by the latter, but a fraction of this amount proportionate to the importance of the lost chance. In this case, the compensation corresponding to the just repair of the damage suffered is set 'discretionarily' to 50,000 euros. [...]

[...] In this case, the Court of Cassation censures the argument that Mr. X had mandated Hubert Y to obtain payment delays and in no case, to verify the regularity of the loan contract or to inform him of the possibility of requesting in justice that the Crédit foncier de France be deprived of its right to interest. Finally, the scope of this obligation of counsel and information is general and absolute: in fact, it is due in any case. The client's skills and knowledge are insufficient to exclude the lawyer's fault as long as they do not exempt him from his obligations: Cass. [...]

[...] The first civil chamber of the Court of Cassation dismisses the two appeals. According to it, "even if Mr. X had only asked the lawyer to obtain delays, the latter was required to verify the regularity of the loan contract whose execution was at issue and to inform his client of the possibility of asking the court to deprive the lender of its right to interest". In addition, "the damage suffered by Mr. X corresponded to a loss of chance since the lender was not automatically entirely deprived of its right to interest" and adds that the "amount of the compensation could not be equal to the benefit that this chance would have provided if it had been realized". [...]