Part 2 of our series of legal obligations and how he can be liable from them.
You can find the first part here.
The main duties of the lawyer are important for the question of a possible claim for damages. This is on the one hand the clarification of the facts and on the other hand the legal examination.
Clarification of the facts
In the clarification of the facts, the lawyer must get an overview of the facts. What the client puts forward is often not enough to give him due credit. If this is the case, the lawyer must actively inquire. For example, he cannot be satisfied with this if the client declares that he is the “owner” of something. Here the lawyer has to explain the difference between possession and property to the client. The Federal Court of Justice ruled on February 14.02.2019, 181, Az .: IX ZR 17/XNUMX:
"If the reported facts are unclear or incomplete, the lawyer may not be satisfied with the legal assessment of what has been presented to him, but must endeavor to obtain as complete and objective a picture of the facts as possible by questioning the person seeking advice (BGH, NJW 1961, 601 [ 602]; NJW 1998, 2048 ; NJW-RR 2006, 923 Rn. 22 with further references) "
When calculating the limitation period in accordance with Section 199 (1) No. 2 BGB, the lawyer's knowledge or grossly negligent ignorance of the current mandate is important. If the lawyer had to recognize that an event had occurred, the client's grossly negligent ignorance can also be attributed to the client as a knowledge representative in good faith (BGH, judgment of May 26.5.2020, 186, Az .: VI ZR 17/XNUMX).
As a result, the lawyer according to the case law of the BGH actively seek information yourselfif he realizes that the client's might not be sufficient.
In addition to clarifying the facts, the legal examination is THE central task of the lawyer. However, he can only carry out this if he has correctly and fully recorded the facts. And even then this is almost impossible for him to achieve. The BGH explains this quite simply:
"The possibility of changing the BGH jurisprudence - even if it has been practiced for many years by the competent specialist senate, shared by the literature and reported by the legislature as a 'prevailing opinion" without expressing a creative will to the relevant legal issue - the lawyer must always take into account and draft the reasons for the revision accordingly (...). "
Or to put it simply: the lawyer has to be smarter than everyone else and, with his crystal ball, also take into account that literature and jurisprudence could change their mind one day. Only he knows whether the BGH wanted to express this with its guiding principle. What is certain, however, is that the Barriers to attorney's liability are low are.
After the lawyer has clarified the facts and advised the client on the specific legal problem, the lawyer takes action. This of course includes an out-of-court letter of formal notice, in the event of unsuccessful filing of a complaint, a statement of grounds for appeal and foreclosure.
Compliance with deadlines
For each of these areas, it is essential that the lawyer has his deadlines under control. The lawyer is responsible for meeting the deadline if the file is presented to him for processing. The BGH has emphasized this in consistent case law:
"If the files have remained in the attorney's office after their submission within the time limit for appeal, there is no reason whatsoever to relieve the attorney of responsibility for compliance with the deadline, unless special reasons for a different assessment can be shown in individual cases. A busy lawyer must also be required to process the matter presented to him for processing in a timely manner. "
However, the question becomes interesting when the Lawyer works (purely) digitally. Then it would no longer be possible for this to be "placed" in his office and thus remain in the lawyer's field of vision. The BGH resolves this with reference to Section 50 (4) BRAO. So if the lawyer keeps a digital file, the same requirements apply as for an analog law firm. He must therefore ensure that the file is further processed by the secretariat and, if necessary, presented to him again (in good time). The BGH explains:
"If the lawyer wants to relieve himself of the responsibility for meeting the deadline again, he must take suitable measures to prevent the risk that the employee entrusted with the deadline control could (mistakenly) assume that the lawyer himself has the deadline in view (...)."
However, what if the lawyer is very progressive and ready to handle his cases Legal tech takes action? Here, too, the BGH demands that the lawyer has his own deadlines under control.
Justification of appeal
This is where the BGH sums it up in its judgment of August 25.08.2020, 67, Az .: VI ZB 19/XNUMX:
“According to Section 520, Paragraph 3, Clause 2, No. 2 of the German Code of Civil Procedure, the grounds for the appeal must describe the circumstances from which, in the opinion of the appellant, the infringement and its relevance for the contested decision result; According to Section 520, Paragraph 3, Clause 2, No. 3 of the German Code of Civil Procedure (ZPO), it must indicate specific indications that justify doubts about the correctness or completeness of the findings of fact in the contested judgment and therefore require a new determination. This includes a self-understandable statement which specific points of the contested judgment the appellant is fighting and which factual or legal reasons he opposes them in detail. There are no special formal requirements; It is also irrelevant for the admissibility of the appeal whether the statements are conclusive or legally tenable. The justification for the appeal must, however, be tailored to the specific dispute. It is not enough to reprimand the opinion of the first court with sentences or general idioms or simply to refer to the submissions in the first instance (cf. -RR 11, 2020 Rn. 54 with further references). If the first court based the dismissal of the action on several independent, independent legal considerations, the grounds for the appeal must attack each relevant consideration in this way; Otherwise the legal remedy is inadmissible (st. case, cf. only Senate resolution of February 19, 2020 - VI ZB 503/5 loc. cit. Rn. 11 mwN). In the case of a divisible subject of dispute or in the case of several subjects of dispute, the justification for the appeal must in principle cover all parts of the judgment in respect of which an amendment is requested (cf. Senate judgment of November 2020, 54 - VI ZR 19/6, VersR 22, 2011 Rn. 26 with further references ; BGH, judgment of July 11, 2012 - III ZR 192/6, NJW-RR 4, 2013 Rn. 52 with further references). "
What is normal for lawyers and the BGH represents a high hurdle in automated mass proceedings with legal tech (such as the exhaust gas scandal or passenger rights): The justification for the appeal must be tailored to the individual case. If the lawyer does not do this, he runs the risk of suffering a liability case.
The court's instructions on legal remedies should also be mentioned in this context. In principle, a party can rely on the correctness of these - but not the lawyer. Due to his knowledge of the law, he is obliged to check these himself.