Even though lawyers, notaries and fiscal advisers have always been seen in Spain as untouchable the truth is, that lately there has been a remarkable increase in the claims for possible professional negligence against these professionals, due to their malpractice.
In reference to this point, we should point out that these professionals do not have an obligation of results, (unless they are engaged to draft a contract, expert report, etc), that means, that they are not obliged to win all the court cases, claims, etc, they file on behalf of their clients.
Therefore, we can say, that the lawyers ( solicitors / attorneys), advisors in Spain, have an obligation of means, that is, it is their obligation to carry out their profession diligently.
The responsibilities and obligations of lawyers, fiscal advisers etc are regulated in general by the Spanish Civil Code, and according to the undertake requested, could be considered a service contract, mandate etc.
Moreover, according to the profession they can also be regulated by other standards. This is the case for lawyers, as we are equally regulated by the general statutory provisions set forth in the General Statute for Spanish Lawyers, Ethics Code etc.
A special diligence is demanded from the Spanish Law professionals (lawyers) and fiscal tax advisers according to the profession and their particular specialty and expertise. Case Law highlights, among other the following:
It is the lawyer’s duty to provide information about the true possibilities of the case, progress of legal proceedings, etc.
It is the lawyer’s duty to safe keep, guard and return the documents.
It is the lawyer’s duty to have the required knowledge /Law and Case Law, court precedents, expertise applicable to the case, etc.
In any case, a person seeking compensation for negligence or malpractice against lawyers, solicitors, advisors, etc, in Spain, must be able to prove it.
Even though Case Law is not very extensive in this respect; it is true and so reflected in a great article written by the Lawyer Fernando Reglero that, on these matters, there are Court Orders to suit all tastes, while some claims have been dismissed or overruled in some others the lawyers were considered responsible for acts such as: allowing time to elapse before answering a claim, initiating a law suit having barred the action, not communicating the client the possibility to appeal the court order, not returning the documents to the client, etc.
One of the most problematic aspects is setting a valuation on the damage, fixing the amount for the compensation claim. In many cases, even when professional liability is involved, it can be very complicated to determine the true value of the damage caused for a lost opportunity or a simple expectation as these cases are quite difficult and will evidently depend on each individual case and circumstances.
The information provided in this article is not intended to be legal advice, but merely conveys general information related to legal issues.
Carlos Baos (Lawyer)
Tel: +34 966 426 185
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