Rights and duties of the lawyer Part 2
In the relationship with his client, the lawyer must maintain his moral and intellectual independence as well as his dignity. He remains master of the argument he will develop in court. If the behavior of the client jeopardizes these principles, for example by attempting to impose on the lawyer a line of defense that the lawyer considers inappropriate or by questioning his work or his competence, the lawyer may with impunity discharge the fulfillment of his mission and return the file to his client while collecting fees for the diligences already accomplished.
Indeed, it is worth remembering (but I will come back to it in a future article) that the lawyer perceives above all fees according to the time spent on a file. Thus, the simple fact that a person uses a lawyer to obtain advice on the advisability of a procedure makes him become a client of this lawyer and, de facto, a debtor against him, and this, whatever the results of this consultation ( judgment of 26 June 2008 , No. 06-11.227).
Some smart guys are also trying, without luck, to question the responsibility of their lawyer when the judicial outcome displeases them even though the lawyer was not yet or was no longer in charge of their case.
This is the case, for example, in a judgment of the Paris Court of Appeal which held that: "Only when the convocation was received before the Conseil de Prud'hommes, the lawyer could not, beforehand, warn his client … No fault in the conduct of the trial can be blamed on the lawyer who correctly defended his client … "(in this case, the client was sentenced to pay a sum of 2000 euros to the lawyer for improper procedure).
This is also the case in a judgment delivered on October 4, 2000 (n ° 97-18.743) by the Court of Cassation which indicated that: "the lawyer, after having discharged his mission, had made the necessary preserve the interests of his former client at the hearing and that he was therefore no longer required to advise the subsequent judgment ".
The lawyer's mission ends with the return of the file to the client. He is therefore from this moment exempt from all diligence.
Anecdotal but it is a criticism often put forward also by the customers: the fact that sometimes, it is not the lawyer whom they charged of the file which pleads it with the audience but another lawyer (most often a collaborater).
If, at first, the Court of Cassation seemed to prohibit the replacement of a lawyer by another, its position has evolved and it now admits that, unless the lawyer has assured his client that he would plead personally his file, he may be replaced by a colleague from the same firm, provided that the customer is aware of this possibility.
Of course, the lawyer to whom the client has entrusted the file remains responsible to him, in case of difficulty. Thus, the importance of the intuiti personae link which binds the lawyer to his client is maintained, while taking into account the material contingencies of practice of the profession.
In any event, the Court of Cassation recalled in a judgment of 8 July 2003 (No. 99-21.504) .that to see the responsibility of the lawyer engaged because of a fault he could have committed, he It is up to the client to show that this fault was the decisive cause of the loss of his trial and that, therefore, without this fault, he would have had a serious chance of winning his case, the mere loss of chance of having a fair trial is not enough.
It is the whole debate on the judicial risk that the lawyer can never guarantee in a certain way the judicial result and justifies the fact that it is invested with a simple obligation of means in this respect: to put all in to try to obtain the result expected by the client.
Of course, and conversely, the lawyer has an obligation of result when performing services that are not subject to any hazard. This is the case in his role of drafter of legal act, if he does not usefully advise clients on the scope of an act or if the act is poorly drafted, which cancels or diminishes the scope. This is also the case for all kinds of diligences, which must be part of a specific deadline.
It is often on this ground that the lawyer's responsibility is engaged, for example:
- allowing a case to lapse
- by letting a delay of appeal
- by not informing his client in good time or sufficiently precisely about the remedies available to him
- by losing parts of a folder
A denier point on the prescription of actions in liability against lawyers.
The law n ° 2008-561 of 17 June 2008 on the reform of the prescription that has this type of action is now prescribed five years in all its components, against ten for assistance before court and thirty advice, delay in the loss or destruction of parts remaining unchanged. No contractual arrangement is possible.
In conclusion, before brandishing the threat of engaging the professional liability of your lawyer because you have lost your case, think ahead and ask yourself whether your lawyer really did or did not commit a fault. In the vast majority of cases, you will find that you are reacting out of spite and going astray.