An attorney always helps his or her clients find the best possible solution. However, even an attorney can sometimes make mistakes and cause harm to his or her clients by, for example, missing a deadline for filing an appeal. When is this damage and what should you do if the lawyer has caused you damage? This is briefly discussed in this article.

Legal regulation

The lawyer's obligations towards the client are contained in the Advocacy Act or the CBA Code of Ethics.  For example, Section 16 of the Advocacy Act stipulates that an advocate is obliged to protect and promote the rights and legitimate interests of the client, and must act conscientiously and consistently use all legal means. The liability of an advocate for damages resulting from such a breach is regulated by the provisions of Section 24 of the Advocacy Act. The Act on Advocacy also provides that an advocate must be insured against liability for damages and therefore any damages incurred are usually covered by such insurance.

Moreover, the attorney's liability under the above-mentioned provisions is conceived as an objective liability, as follows from the case law of the Supreme Court, i.e. in the case of the occurrence of damage, the attorney's fault is not considered, it is sufficient to prove the occurrence of damage and the causal link between its occurrence and the attorney's misconduct. Therefore, when assessing whether the damage caused by the lawyer is caused by the lawyer's provision of legal advice, it is necessary to assess whether there is a link between the damage suffered by the client and the lawyer's conduct. The lawyer may be exonerated from liability only if he proves that he has made all the efforts that can be required of him and that it was nevertheless impossible to prevent the damage.

How to claim damages against a lawyer?

If you believe that you have suffered damage because of the lawyer's actions, it is best to communicate openly with the lawyer about this in the first place. If the lawyer caused the damage, it is standard practice that he or she will try to help you repair the damage and, if necessary, also compensate you for the damage, usually from the insurance mentioned above.

However, even if this does not resolve the matter, you will have no choice but to go to court to decide on compensation. In the course of the evidence in those proceedings, it must then be proved that the damage actually occurred and that the damage was caused by the breach of the lawyer's duties.

For this reason, the court will first address the preliminary question of whether damages would have occurred even if the attorney had acted properly.  In the context of this preliminary question, the civil court may thus paradoxically assess whether the client would otherwise have succeeded in another proceeding that in fact failed precisely because of the lawyer's misconduct, for example, if the lawyer had not filed a timely appeal.

Missing a deadline as legal malpractice

In practice, we have encountered cases where a lawyer has failed to file a timely appeal with the court. In exceptional, justified cases, the court will condone a missed deadline for filing an appeal (for example, from an unplanned and prolonged hospitalisation), but the mere illness of the lawyer leading to a short-term indisposition is not a reason for condoning a missed deadline.

Thus, the lawyer's missed deadline puts the client in a very uncomfortable position, because through no fault of his or her own, the client loses the litigation, even if he or she would otherwise be in the right, and no longer has any defence options. The client's only and last resort is therefore to seek compensation for damages against the lawyer who caused the damage by his or her misconduct. In this case, however, it is very problematic to prove the occurrence of the damage itself - the client only incurs a part of the damage directly through the unsuccessful litigation, namely the damage to the extent of the costs^[1] of the lawyer's representation claimed in vain. The remainder of the damage is indirect, and moreover only subsequently as a result of an unfavourable court decision. Thus, for example, if the lawyer did not appeal (even though the client stood for an appeal) in the proceedings for payment of the invoice, and if the court deciding on the action for damages against the lawyer judges that the appeal would have been in favour of the client, the damage caused to the client is what the client would have settled had the lawyer appealed.

If the court concludes that the client would not have succeeded in the case despite the lawyer's misconduct and therefore that the causal link between the misconduct and the damage is not met, the client will not be awarded damages.

However, it is undoubted that the attorney has violated his obligations under the Advocacy Act and the Code of Ethics by this conduct, and proceedings may therefore be initiated against the attorney before the competent body of the Czech Bar Association.

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We used a publicly available AI translation tool to translate this article from Czech to English. Please contact us if any of the above information is unclear to you.

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^[1] We wrote an article about the costs of legal representation here:

https://www.jduksoudu.cz/en/clanky/jdu-k-soudu-kolik-stoji-soudni-rizeni

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