Lawyers are free to accept or reject the direction of a matter, but they cannot leave a client defenseless. Even if it is a case of duty shift. Negligent breach of this ethical duty can lead to a significant penalty. The Provincial Court (AP) of Barcelona has recently sentenced a lawyer for this reason. You will have to pay 1,195 euros plus interest to a woman for the damages caused by waiving her case without giving her sufficient advance notice.
The ruling (the text of which you can consult here) admits that the lawyer handed the matter over to a colleague from the firm, but, he concludes, neglected the forms. Specifically, he made a mistake when communicating the date of the hearing, so she did not attend the trial. Nor did he inform the prosecutor of the case or notify his client in time. The consequence was that the court dismissed the claimant. That is, it considered that the woman waived her claim, for which she had to bear the costs of the process. A damage that, after the resolution of the Barcelona court, the negligent lawyer will have to assume.
As reported in the judgment, the plaintiff had initiated a claim for injuries sustained in a hit-and-run. Later that day, his lawyer did not appear for the trial. The woman then sued the lawyer, whom she considered responsible for the damage caused. The court, on the other hand, refused to convict him because it considered that he had not really “ignored” the matter. He passed it on to a colleague, although he was wrong to indicate the date of the hearing. It is not clear how he delegated to his colleague, “the matters of the duty shift”, because they were not acted upon.
However, the AP does hold the lawyer responsible for the damage because he neglected to defend the case. The email that he sent with the case to his colleague was wrong in something “as relevant” as the date of the court appointment. On the other hand, the date of the call in which he renounced the case or reliable communication to the attorney was not recorded. The plaintiff said at trial that she had called the lawyer to see when the trial would be and that he informed her that he had passed the matter on to another lawyer, that he would call her, which he did not do.
On the other hand, the lawyer in whom the case fell, declared that she had not promised to attend the previous hearing, nor had she received permission for the procedure, nor did she know the party. The only existing evidence is an email from which it appears that the lawyer had delegated, but there is no proof of the conditions under which he did so. In the same email, the lawyer acknowledged that she had been assigned the matter, but that she had been misinformed of the date of the hearing, and she could no longer attend.
As the magistrates emphasize, the lawyer was obliged “to avoid the defenselessness of his client.” To do this, not only should he have given him sufficient time, but he had to have made sure that he was not going to suffer any damage. “In particular if there were procedural acts indicated to which attendance was mandatory,” they sentence. However, they limit the sentence to the costs that the woman had to pay, as they are the “only damage caused.”
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