Antonio Flores’ Blog

Now that money is scarce, legal instructions that could have otherwise been fulfilled, or at least carried out with some diligence to accommodate a more or less agreeable solution, are finding their way to recourse via professional indemnity (PI) obligations and ultimately, the insurance in charge of covering lawyers’ negligence. Redress against negligent lawyers, which is extendable to Notaries, Registrars and Procurators, is not new and there is substantial precedent that gives us an idea of how Courts are viewing the different cases.

Instances of negligence are varied but the following can be identified, some to do with Court action and others, to the incompetence of the lawyer in respect of applicable law or procedures:

• Missing procedural deadlines or time limitations to bring an action (called Diary Oversights). For example, failure to respond to a claim prior to the deadline set by the Civil Procedural Act or, file an action in tort within 1 year from when the incident occurred, thereby losing the opportunity to obtain a Court ruling on the matter. A clear example is one where lawyer fails to advise the family of a person who drowned, of their right to bring an action in tort against the owners of the swimming pool (within 12 months).
• Not filing an appeal, full stop. The lawyer was not late in filing, he simply did not file.
• Not advising a client of the non-feasibility of an action due to expiration of his right to bring a claim: particularly relevant in relation to the award of Court costs, which can be substantial and, obviously avoidable, had the lawyer advised properly on the opportunity not to bring an action.
• Not claiming “lost profit” on a judicial action when it clearly lent itself for bringing such petition: a good example to cite is that of the sole-trader owner of a tractor that was destroyed in an accident caused by the other party. Although the lawyer filed a claim for damages to the tractor he missed the opportunity to claim for non-realized profits as a result of the sole-traders inability to work.
• Inadequate technical approach to a legal matter and continuous string of errors, also technical, that provoked a multiplicity of procedures, making it impossible for the client to obtain legal redress.
• Rather laconic exposé of the alleged responsibilities of the defendant and incorrect display of evidentiary material, showing little understanding of the case itself. The lawyer, it seems, had other things in mind, or nothing at all, when dealing with this case.

 And so, what happened to the lawyers in these cases? Well, in all of them Courts determined that the lawyers’ negligence warranted compensation that was to be calculated by reference to the “loss of opportunity”, which is not easily measured but for reference to conjecture, best known as Absolute Probability Judgment, where the Court is faced with the assessment and quantification of the error, and its impact on a result had the error not occurred: in other words, what would have the chances of a claimant been had he been properly represented? Common Law here is probably far ahead as it resolves these issues under what is deemed a judgment of feasibility of the case, which requires a study into the merits of claimants arguments’. In this jurisdiction, it is known as the Case-Within-a-Case Rule, according to which, a legal-malpractice claimant must show that, but for the lawyer’s negligence, the claimant would have won the case underlying the malpractice action.

And what about time to bring an action? According to all but one Court rulings, legal negligence or, better named, contractual malpractice, arises from contract, and not tort, which would make a huge difference: 15 years vs. 1 year.

Antonio Flores Legal Practise Malpractice, Negligence, Professional Indemnity, professional liability, professional liability insurance, spanish lawyers