The lawyer civil liability
| Author | R. Matefi - D. Ionas |
| Pages | 213-216 |
R. Matefi - Department of Private Law, Transilvania University of Braşov.
D. Ionas - Department of Public Law, Transilvania University of Braşov.
Page 213
The provisions to regulate the lawyer civil liability are not to be found within the Law no. 51/1995 (republished) regarding the organisation and exercise of advocacy in Romania, despite the fact that "while exercising his profession the lawyer may commit acts likely to harm the parties of the trial." [4]
"Even if the Law of organisation and the Professional Statute are especially dealing with the lawyer disciplinary liability (...) when, because of the wrong way the lawyer fulfilled his obligations under the assistance/representation contract, causing damage to his client, he will respond towards his client in terms of civil law." [5]
As outlined in doctrine, "the lawyer civil liability does not work simply because of the loss of trial, but most relates to the lawyer's obligations, to the legal aid contract content and especially to the nature of the obligations assumed by the lawyer." [4]
The 998 Article of the Civil Code established that "every human action that causes an injury to another person, requires that the one that caused the injury, should fix it", and the wording of Article 999 states that "everyone is responsible not only for the damage that he caused by himself, but also for the one caused by his negligence or recklessness."
The civil liability has two forms, namely the tort and the contractual liability, both being based on the principle of compensation for patrimonial damage caused by unlawful and culpable conduct.
Thus, as highlighted in the doctrine "the lawyer liability is contractual. The tort liability shall act only if the lawyer is held to answer for a non-contractual offence likely to cause injury to a third person due to the information provided by the lawyer while exercising his profession." [1, 3]Page 214
"The civil professional liability may not involve criminal or disciplinary liability, but the latter two will always attract professional liability if the professional caused damage.
However, the civil liability cases are much more numerous that many other criminal or disciplinary cases. The civil liability will always occur when a professional causes damage to someone, while criminal and disciplinary responsibility will intervene only in limited cases specified by law." [2]
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