OGH: Lawyer's liability in the event of faulty execution

Jun 16, 2021 Benn-Ibler Rechtsanwälte

A lawyer must obtain the consent of their client if it is questionable whether further execution steps are still in the interest of the client. This has been established by the Austrian Supreme Court. In the case of contradictory or insufficiently specific instructions from the client, the lawyer must consult the client - except in cases of imminent danger.

Pursuant to Sec. 9 of the Austrian Lawyers' Code (Rechtsanwaltsordnung, RAO), the lawyer is obliged to represent the rights of their party with conscientiousness. Pursuant to Sec. 1009 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB), the holder of the power of attorney is obliged to prudently and honestly carry out the business assigned to him by the contract of proxy. These provisions give rise to a number of duties for the lawyer, such as the duties to warn, to explain, to inform and to prevent.

In the case at hand, the defendant allegedly culpably failed to clarify with the plaintiff whether the application for enforcement should also be filed with regard to the current alimony. The plaintiff claimed damages for the defendant's faulty execution, because the plaintiff had been able to rely on the defendant taking the necessary steps to collect the claim on his own initiative. This legal opinion was also confirmed by the court of appeal.

According to the Supreme Court, the court of appeal's decision was within the framework of the jurisprudence outlined above, as the defendant did indeed make current alimony the subject of the application he submitted in an earlier application for enforcement and it remained unclear how far the plaintiff's order extended. The court of appeal's assessment that the defendant should have inquired with the plaintiff, also informed her about the prospects of success, which in his opinion were disproportionate to the costs, and then requested her to specify her instruction, which was not clearly defined in terms of scope, was not specifically challenged in the appeal.

OGH 4 Ob 57/21t (20.04.2021)