The The Hanseatic Higher Regional Court Hamburg ruled on February 7, 2020 for file number 9 U 202/19 decided that a lawyer is liable for damages if he does not correctly instruct the client about the chances of success of the appeal and thus violates his duty to provide comprehensive advice to his clients.
The lawyer requested for advice is obliged to provide comprehensive and as exhaustive information as possible and must protect his client from possible harm.
When examining the prospects of an intended litigation, the lawyer must above all examine the facts presented to him to determine whether it is suitable to justify the success aimed at by the client.
He must inform the client about possible concerns about the chances of success of a lawsuit.
If the examination shows that the intended action is almost certain or at least very likely to be futile, the lawyer must not withhold this; on the contrary, he must take a sufficiently clear position on the degree of risk and the probability of the loss of the process.
If, after a dutiful examination of the factual and legal situation, an intended lawsuit appears almost certain or at least very likely to be hopeless, the lawyer must point out the associated degree of risk of loss of litigation.
If the intended prosecution is hopeless, this must be clearly stated; a completely hopeless legal action is not advisable.