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The attorney's responsibility towards his client

We can recognize several types of attorney's responsibility:

  • Public responsibility
  • Private-law responsibility
  • Disciplinary responsibility

Public responsibility primarily means criminal responsibility and also responsibility for administrative offenses. Both the attorney and the legal trainee are subject to criminal responsibility, but there is one substantial exception, which has already been discussed earlier in connection with the duty of confidentiality. This exception applies to the offense of non-announcement of a criminal offense under the provisions of Section 168 of the Criminal Code. Therefore, if an attorney or legal trainee knows in a plausible manner the crimes listed here and does not make the announcement to the competent authorities, he will not be criminally responsible for this conduct.

The private attorney's responsibility lies in the responsibility for the damage caused to the client in connection with the provision of legal services and is therefore logically the most important from the client's point of view. But, the natural limit of the attorney's independence cannot be absolute and without limitation.

If an attorney causes damage to the client in the performance of his / her activity, i.e. advocacy, he / she shall be responsible for it. The same applies if such damage is caused by an attorney's deputy or by his employed attorney, a lawyer trainee or other employee. The attorney is entitled to regressive compensation in accordance with § 250 et seq. of the Act No. 262/2006 Coll., Labour Code, against his employees, including employed attorneys. In the legal theory, however, the opinion appeared that the regressive compensation of the employed attorney and his attorney's deputies is similar to the regressive compensation under the provisions of Act No. 82/1998 Coll., On the responsibility of the state for the damage caused in the exercise of public authority by an unlawful decision or an incorrect official procedure, as amended, with the significant difference that there is no limit of four and a half times the salary of the person causing the damage. However, in my view, this would only be acceptable to the attorney's deputy, not to his staff, and with certain reservations.

Let us return to the merits of the case - the attorney's responsibility for the damage caused to the client. This private legal responsibility of an attorney causing reduction of his client's property or his lost profits does not require fault and therefore it is also irrelevant whether the attorney caused the damage intentionally or negligently.

"A prerequisite for claiming damages is  the finding that if the attorney was not in error, the debtor's debt would have  been settled, that is, the principal and decisive cause of the material damage  suffered. It is necessary to answer the question if the attorney did not breach  his duty, did the property of the client increase to the extent of the required  compensation and whether his entitlement to his creditors could be recovered,  in particular with respect to the personal and property ratios of the debtors,  that is, his satisfaction could have happened at all. "

This attorney's responsibility is, in principle, the same as the responsibility of the members of the statutory bodies of commercial companies, and can therefore only be justified by the attorney if the attorney proves that the damage could not be avoided even if all the efforts that could be required of him were made. Determining similar responsibilities as members of the statutory bodies of commercial corporations is a consequence of the performance of advocacy activities on the basis of a mandate relationship. In this respect, the attorney's responsibility is set more strictly than, for example, the responsibility of the bankruptcy trustee, who is accountable according to the provisions of § 420 et seq. of the Civil code.

"The responsibility of an attorney for  damage is based on objective responsibility, regardless of the fault. The court  must deal with the occurrence of damage and the relationship of  causation." As a preliminary question, it is necessary to assess the level  of actual claim of the client. The result on the relationship of causation between  the attorney's misconduct and the failure of the client to succeed is only  possible if the client's right actually existed."

The amount of the client's actual claim must be considered as a preliminary question. The problem of professional attorney's misconduct is, by its very nature, rather complicated. In his legal practice, an attorney will not be responsible to his client, for example, for failing to observe procedural time limits where the assessment his responsibility will be easy, but also for lodging or failing remedies where complex questions will also have to be addressed:

"In a situation where an attorney's fault  is not appealing against a judgment of the court of appeal, the outcome of the  appeal and any subsequent proceedings after the annulment of the contested  decision must be examined. The appeal brought against the final judgment of the  court of appeal can be done exclusively by the courteous court. It is not a  case-by-case review, the premiss of which is the lodgment of a plea, but a  question for a preliminary ruling in the context of a claim for damages against  an attorney."

The attorney's responsibility for interpreting legal standards or the procedure in court proceedings will certainly be very problematic and will need to be assessed cum grano salis, taking into account the circumstances of the case. These complicated questions, whether the attorney has been professionally misled and whether or not he will respond to the client for the damage, must usually resolve to disciplinary practice or court proceedings in the form of a court decision that will assess whether, for example, an attorney has behaved as a prudent professional or not . Because of the possible ambiguity of responsibility in these cases and in the legal certainty of the client that the attorney would be financially able to compensate him for such damage, the attorney's obligation to be continuously insured is applied and the premium for this insurance must always be paid in time. If an attorney is practicing in a company, this company must be insured. The scope of the insurance must cover reasonable estimate of the responsibility for damage. The basic minimum is the insurance for one million crowns, however, attorneys are often insured for a higher amount, and if there is a risk of greater damage in a particular case, the attorney is obliged to increase his insurance. Specific minimum attorneys 'insurance rates are set by the professional regulation - Resolution of the Board of Directors of the Czech Bar Association of September 15, 2009, which sets minimum limits for insurance payments from attorneys' responsibility insurance. If the attorney does not increase his insurance to the extent necessary, if the legal situation so requires, the legal assistance contract must be terminated in this case. In case the legal services are provided by a limited partnership or a limited liability company, such a company must insure, within the minimum insurance indemnity limit, ten million crowns for each limited partnership and fifty million crowns for each member of the limited responsibility company. The Czech Bar Association facilitates the fulfilment of this obligation through the Institute of so-called collective advocacy insurance. The Czech Bar Association itself arranges insurance and the attorney is obliged to pay the premium. If the attorney does not want to participate in the collective insurance, he must submit his own insurance contract to the Czech Bar Association. However, in connection with the adjustment of the mass insurance of attorneys, the need for its amendment was repeatedly necessary. According to the legal regulation introduced by Act No. 79/2006 Coll. that collective insurance covered both the attorney's own responsibility and responsibility for the damage caused by an attorney employed by him, and also the insurance for the joint responsibility in the joint exercise of advocacy in an association or as partner of a public company or as a complementary of a limited partnership. The insurance of an employed attorney in the framework of the collective insurance of his employer and the insurance of joint responsibility as a part of the mass insurance of attorneys in associations, partners of public companies and complementary of limited partnership companies, both in terms of possibilities of the Czech Bar Association and as regards insurance companies, both in difficulty and in ineffective burdening both the Czech Bar Association and the insurance companies, as well as the attorneys (also in the case when they do not want to participate in the collective insurance and must prove to the Czech Bar Association that they are insured separately, e.g. in the framework of the company's total insurance). In practice, the problems were also the fact that, even though attorneys had an information duty to the Czech Bar Association, they often did not comply with it and the Czech Bar Association then assessed the premiums in the wrong amount and had to call back the insurance sums against the insurance company and the attorneys. For these reasons, the latest amendment to the Law on Advocacy introduced the principle that collective attorney's insurance applies only to the attorney's responsibility for damage caused by himself, while for the other cases mentioned above an ex lege obligation is imposed to join separately.

The attorney's responsibility for the damage caused by his legal activity is often followed by the disciplinary responsibility, but it is not always the case.

This responsibility arises in the case of a disciplinary offense defined as a serious or repeatedly infringed breach of the obligations given to an attorney or a lawyer trainee by legal and professional law. Unique and non-serious violation of the attorney's duties is not a disciplinary offense. The condition of a disciplinary offense, however, is not the damage. This disciplinary responsibility serves primarily to protect the fundamental values associated with advocacy, namely with dignity, honor, as well as other duties of attorney's status.

Disciplinary responsibility is regulated in the Law on Advocacy and also by Decree No. 244/1996 Coll., the disciplinary order, as amended. The disciplinary offense shall be decided in disciplinary proceedings at a three-member disciplinary senate composed of members of the disciplinary commission of the Czech Bar Association, to which the client may also give the initiative and in which the following penalties may be imposed on the attorney:

  • Warning
  • Public admonition
  • Fine
  • Temporary ban on advocacy
  • Deleting from the list of attorneys

However, the exonerating reason cannot be a reference to legal inexperience or short advocacy practice. Although the ex lege disciplinary proceedings alone do not directly lead to remedy of damages caused to the client, the proceeding itself and the pressure of the Czech Bar Association may lead to additional compliance with the obligations or voluntary solicitation of an attorney to remedy the client's injury. For the sake of completeness, it should be added that the penultimate amendment to the law on advocacy in 2006 introduced a new institute in disciplinary proceedings - a disciplinary order. It solves simpler things when the matter is decided by a disciplinary senate without a proceeding. As with the criminal order in criminal proceedings, only moderate disciplinary measures may be imposed by a disciplinary order. The latest amendment to the Law on Advocacy now establishes an Appeal Disciplinary Commission, which as an independent body ensures the principle of appeals in disciplinary proceedings. By the last amendment, the appeal disciplinary senates were appointed by the Board of Directors from its members, i.e. members of the executive body of the Czech Bar Association; therefore, the appeal disciplinary senates are now formed only from the members of the Appeal Disciplinary Commission as an independent and impartial body.

ARSYLINE 2016
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