OGH on liability of attorneys

Oct 6, 2021 Benn-Ibler Rechtsanwälte

Incorrect or omitted advice (clarification) by the lawyer generally only entitles to compensation for the damage to trust which was caused. It is only necessary to compensate for the difference in assets that would not have occurred had the dutiful advice been given. If the success of the claim for damages against the lawyer depends on whether the plaintiff suffered damage as a result of the lawyer's malpractice, the court must determine the presumed course of events on the assumption that the lawyer would have acted correctly.

According to Section 9 Lawyers' Act (Rechtanwaltsordnung, RAO), the lawyer is obliged to represent the rights of his party with diligence. Pursuant to Sec. 1009 of the General Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB), the holder of the power of attorney is obliged to prudently and honestly attend to the business entrusted to him or her by the power of attorney agreement. 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. A lawyer's duty to inform also exists with regard to the prospects of success of a legal point of view.

In the present case, the plaintiff complained that the defendant - his legal representative in the probate proceedings - had never informed him that in the event that the legal paternity of the deceased to the plaintiff could not be proven accordingly, there was a threat of losing the case. The plaintiff lost the proceedings and the defendant had to compensate the plaintiff for the damage he had suffered.

According to the case law of the Supreme Court (Oberster Gerichtshof, OGH), incorrect or omitted advice (clarification) by the lawyer usually only entitles the plaintiff to compensation for the damage to trust caused. Only the difference in assets is to be compensated, which would not have occurred if the lawyer had advised the client dutifully. If the success of the claim for damages against the lawyer depends on whether the plaintiff suffered damage due to the lawyer's error, the court must determine the presumed course of events on the assumption that the lawyer would have acted correctly. The aggrieved party has to describe what he or she would have done if the lawyer had clarified the matter.

OGH 8 Ob 48/21y (25.06.2021)