LexInter | July 9, 2015 | 0 Comments



Referendum advisor at the Court of Cassation

The practice of legal professions is regulated and, whether or not their members are organized in professional orders (such as lawyers), whether they are public or ministerial officers such as notaries, lawyers at the Council of State and at the Court of cassation, attorneys, bailiffs or auctioneers, they may find their professional liability sought on the occasion of breaches committed by them in the exercise of their functions.

The case law of the first Civil Chamber, to which the majority of this litigation is devoted, reveals that this responsibility obeys, for all legal professions, the same general principles which will endeavor to be identified below, without entering more than of need in the necessary peculiarities.

Whatever the profession in question, this is a liability falling under common law and, as such, it supposes the demonstration of a fault, and of a damage in causal relation with this one.
I. The obligations of legal professionals

AT . The main obligation is the duty of advice which weighs, in general, on all professionals in their relations with non-professionals and therefore, quite naturally, on the legal professions.

This duty to advise is essentially constituted by the obligation to inform and enlighten the parties.

This information can take the form of a warning, so that a notary, if he is able to suspect the insufficiency of the stipulated pledge, must draw the attention of lenders to this situation (Civ. 1st, November 26, 1996, Bull. N ° 419). It must also draw the attention of the parties to the importance and the risks of their commitments (Civ. 1ère, November 7, 2000, Bull. N ° 282). On the other hand, it is not required to inform a party about facts of which it was aware at the date of the act (Civ. 1ère, November 26, 1996, Bull. N ° 423). A lawyer, responsible for drafting a letter of dismissal, must draw the attention of his client to the financial consequences of the termination of the employment contract (Civ. 1st, March 13, 1996, Bull. n ° 132).

The information given must be complete, as part of his legal assistance mission, a lawyer must inform his client about the existence and forms of the existing remedies against decisions rendered against him (Civ. 1, February 2, 1994, Bull. N ° 44 and November 13, 1997, Bull. N ° 303) a solicitor is bound, like a notary, to an obligation of advice for the preservation of the rights of his client in the perfect execution of a judicial decision involving sale (Civ. 1ère, June 24, 1997, Bull. n ° 214).

The obligation to inform the parties is assessed with regard to the aim pursued by them (Civ. 1ère, June 12, 1990, Bull n ° 160 ) and the information must also relate to the tax consequences of the proposed transaction (Civ. . 1st, May 21, 1990, Bull. N ° 119; May 3, 1995, Bull. N ° 189; December 18, 2001, Bull. N ° 321).

Legal professionals, in this capacity, are required to advise their clients in accordance with the positive law in force. A lawyer commits a fault who acts for his client in disregard of a new case law of the Court of Cassation (Civ. 1ère, October 15, 1985, Bull. N ° 257). On the other hand, one cannot reproach a notary for not to have foreseen a reversal of jurisprudence (Civ. 1ère, November 25, 1997, Bull. n ° 328) but the existence of a legal uncertainty, does not exempt it from its duty to advise (Civ. 1ère, December 9, 1997, Bull . n ° 362).

The obligation to advise, which is undoubtedly conceived in a rather extensive way, extends to all the activities falling within the mission of legal professionals; it is then a question of whether it is relative or absolute. After having, initially, rather opted for the relative character of the obligation to advise, for example by taking into consideration, to exclude the responsibility of a notary, the circumstance that the client was “a wise professional” (Civ 1st, July 2, 1991, Bull n ° 228), the first Civil Chamber now recognizes it as absolute.

In the first place, it constantly reaffirms that the personal skills of its client do not relieve the legal professional who is bound to it from his duty to advise (Civ. 1ère, November 25, 1997, Bull. N ° 329; July 7, 1998, Bull. . n ° 238; April 4, 2001, Bull. n ° 104). Then, the presence of a personal adviser to the client has no influence on the scope of this obligation (Civ. 1ère, December 12, 1995, Bull. N ° 459; June 18, 1996, Bull. N ° 260). Finally, even the presence of another legal professional alongside the client is irrelevant: a notary is not relieved of his duty to advise by the presence of another notary (Civ. 1ère, November 26, 1996 , Bull. N ° 418) or by the presence of a lawyer (Civ. 1ère, July 10, 1995, Bull. N ° 312). A solicitor does

But the personal skills of the client can be taken into consideration in the context of a competition of faults which, if they contributed together to the realization of the damage, involve a sharing of responsibility (Civ. 1ère, May 19, 1999, Bull. N ° 166; February 29, 2000, Bull. N ° 72). Likewise, in the event of a competition of fault between two legal professionals assisting a client, there may be a division of responsibility (eg between a bailiff and a solicitor: Civ. 1ère, November 14, 2001, appeal n ° 98 -22.672). Finally, if the client has committed fraud, the professional can be relieved of his obligation to advise (Civ. 1ère, December 17, 1996, Bull. N ° 458) but the trial judges can also decide to condemn him to a partial contribution. to an extent that is within their sovereign power to

B. More specific to the legal professions is the obligation to ensure the effectiveness of acts.

As most of them are drafters of acts, legal professionals are required to ensure their effectiveness.

It was with regard to notaries that the first Civil Chamber first affirmed the principle (eg Civ. 1ère, February 7, 1989, Bull. N ° 69). This requirement of efficiency is constantly recalled since, it is thus that it was judged that a notary must verify the quality of owner of the seller in the deed of sale that he establishes and could not limit himself to taking back ‘an earlier deed an origin of ownership which turns out to be erroneous (Civ. 1ère, February 12, 2002, Bull. n ° 54), it must in the same way verify the origins of ownership and the mortgage situation of the building (Civ. 1ère, 23 November 1999, Bull. N ° 320), it is up to him to ensure that his client, wishing to acquire a drink outlet does not

This obligation of efficiency is obviously applicable to lawyers whose activity in drafting documents has increased since the merger with legal counsel. As the drafter of a plan for the sale of a business, a lawyer deprives this act of effectiveness by failing to provide for the hypothesis where a clause in the lease would have imposed restrictions in the event of the sale of the business (Civ. 1st, January 12, 1982, Bull. N ° 11). Likewise, he must verify that the IOUs, for which he was responsible for drafting, included all the handwritten information essential to their full effectiveness (Civ. 1ère, June 24, 1997, Bull. N ° 18). It is owned by a lawyer editor of

It was also judged that the judicial officers are required to advise their clients on the usefulness and the effectiveness of the acts which they are required to accomplish (Civ. 1ère, December 15, 1998, Bull. N ° 364) in particular , a bailiff, required to establish a report of the premises with a view to the conclusion of a lease in application of article 3 quinquies of the law of September 1, 1948, commits a fault engaging his professional liability by failing to mention certain characteristics of the premises making it possible to assess the validity of the lease with regard to these provisions (Civ. 1ère, 22 November 1988, Bull. n ° 327).

C . Legal professionals are bound by a general duty of loyalty, prudence and diligence.

It is also a general obligation incumbent on all professionals in their dealings with clients, but it is appreciated, in this area, with a certain rigor due to the fact that the legal professions are regulated and that we expects their members to take all the more care in carrying out the mission with which they are specifically entrusted by law.

A particular obligation of prudence and diligence weighs on the notary when he remits funds on behalf of his client (Civ. 1ère, December 11, 1990, Bull. N ° 288) or on the lawyer, in particular, in the fulfillment of its legal assistance mission (Civ. 1ère, May 19, 1999, Bull. n ° 164).

The auctioneers must respect this general duty of prudence and loyalty when drawing up the sales catalogs made available to their customers. This is how they are required to include accurate information and to guarantee the authenticity of the vehicles offered for sale (Civ. 1ère, April 22, 1997, Bull. N ° 129 and March 12, 2002, Bull. N. ° 90), they must also ensure the legitimacy of the possession of the objects by the seller (Civ. 1ère, January 18, 2001, Bull. N ° 12). On the other hand, they are not obliged to verify the identity of the buyer (Civ. 1ère, February 10, 1998; D, 1998, IR, p. 63).

The bailiffs, who alone have the capacity to bring court decisions into execution, must personally carry out the necessary checks to identify the person against whom the execution of the decision is directed (Civ. 1ère, June 20, 2000, Bull. N ° 188).

It does not seem useful to multiply the examples, taken from the specific cases, the only important thing is the observation that the above-mentioned obligations also apply to all legal professions, their object obviously being a function of the particular mission assigned to each.

In addition to the existence of a fault consisting of a breach of one of these obligations, it is necessary that the existence of damage be demonstrated.
II. The characters of the harm

The liability of the legal professions being based on common law, the damage, in order to be reparable, must be direct, current and certain, as the judgments regularly recall (eg Civ. 1ère, April 2, 1997, Bull. N ° 116).

The requirement of the direct nature of the damage does not present any specificity in the matter, we will limit ourselves to underlining that the Court of Cassation has always exercised a vigilant control, although attenuated, on the characterization by the judges of the merits of the causal link. between the fault and the damage invoked (for example, but one could cite many others, Civ. 1ère, February 7, 2002, Bull. n ° 74).

On the other hand, the features of topicality and certainty deserve some development.

It is sometimes claimed that the damage resulting from the fault of a legal professional is neither current nor certain when the victim has other remedies available to ensure compensation for the damage. This is how the first Civil Chamber was led to clarify, concerning the liability of notaries and lawyers, on which it was more particularly called upon to rule in this regard, but the principle can be extended to all cases. legal professions, that the responsibility of these professionals is not of a subsidiary nature .

It follows that the bringing into play of the liability of the notary is not subordinated to a prior action against other debtors (Civ. 1ère, February 13, 1996, Bull. N ° 81) and that the victim cannot see himself. impose, following the fault he committed, the exercise of other legal remedies than those which could have been initially foreseen (Civ. 1st, December 19, 2000, Bull. n ° 333). Likewise, the lawyer’s liability is not of a subsidiary nature and the damage is certain when the victim has been unable, through his fault, to obtain payment of the sums owed to him on the due date (Civ . 1st, February 5, 1991, Bull. N ° 46). Recently, the First Chamber decided that it was certain that the damage suffered by a person as a result of the fault of

On the other hand, the judges on the merits do not characterize the element of certainty of the damage by refraining from examining whether the implementation of securities which remained valid would not have made it possible to clear, at least partially, the debt which remained in force. charge of the victim through the fault of a notary (Civ. 1ère, April 2, 1997, Bull. n ° 116; see also November 7, 2000, Bull. n ° 277).

It is in matters of liability of the legal professions that the First Civil Chamber most regularly applies the concept of loss of chance . There are cases where the degree of certainty of the harm is weakened because it depends on an event which could not have occurred precisely because of the fault of a legal professional. The most frequent hypothesis, without being exclusive, is that in which a party has been deprived, by such a fault, of the possibility of bringing a legal action, of which everyone knows that the outcome is never certain.

To assess such damage, the First Civil Chamber requires the trial judges to reconstitute the trial which could not take place to determine the chances of success of the action which was not completed. exercised (eg Civ. 1ère, April 2, 1997, Bull. n ° 118 or April 4, 2001, Bull. n ° 101) and they cannot be based on the result of another subsequent action (Civ. 1ère, April 4, 2001, Bull. N ° 107). As for the reparation, it must be measured by the lost chance and cannot be equal to the advantage that this chance would have obtained if it had occurred (Civ. 1ère, July 16, 1998, Bull. N ° 260), in other words, compensation cannot be complete when the damage consists of a loss of opportunity.The trial judges sovereignly assess the probability of the lost chance (Civ. 1ère, February 18, 1997, Bull. N ° 65).
III. The compensation procedure

Liability action is governed by common law, subject to certain particularities and is, in principle, brought before ordinary courts .

It is not a question here of the disciplinary fault of which the repression, before the concerned disciplinary court, is distinct. However, with regard to certain public or ministerial officers, the ordinance of June 28, 1945 relating to the discipline of notaries, solicitors, bailiffs and auctioneers reserves the right for the injured party to apply to the tribunal de grande instance, ruling in disciplinary matters, and to seek compensation for his damage. This faculty is, in practice, very little used by the victims and supposes the demonstration not of a simple fault but of a disciplinary fault (Civ. 1st, May 27, 1998, Bull. N ° 184).

In terms of particularities, we will underline, to be complete, the specific regime of the implementation of the professional liability of lawyers at the Council of State and the Court of Cassation governed by an ordinance of September 10, 1817, amended, providing for, in its article 13, the prior referral to the Council of the Order which issues an opinion which can be submitted, by the lawyer to the councils or by the party, to the Council of State when the facts relate to the functions exercised before the court conflicts or administrative courts or the Court of Cassation in other cases. With regard to the liability of these professionals, the Cour de cassation exercises full jurisdiction control (Opinion of the Cour de cassation of September 25, 2000, Bull 2000, Opinion n ° 7), i.e.

The legal basis for the liability of the legal professions may arise from quite diverse provisions but, in any event, it is only a question of the application of the texts of the common law of liability . It is generally accepted that the liability of public or ministerial officers is of a quasi-tortious nature. This basis finds its justification in the consideration that these professionals are invested with a mission defined by a statute of public order and that their intervention does not really form part of a voluntary contractual relationship. In any case, this is the basis retained for the liability of notaries (eg Civ. 1ère June 12, 1990 Bull.n ° 160). It is also admitted that the liability of the auctioneers is of a tort nature (Civ. 1ère, 22 November 1994, appeal n ° 92-20.917). A judgment concerning judicial officers is particularly interesting in this respect since it states that judicial officers are legally or contractually bound to advise their clients (Civ. 1ère, December 15, 1998, Bull. N ° 364). In fact, the responsibility of the judicial officers can also be engaged by application of the rules of the mandate (Civ. 1ère, December 3, 1996, Bull. N ° 435). With regard to lawyers, the basis retained is contractual, either by the endorsement of article 1147 of the Civil Code (eg Civ. 1ère, March 13, 1996, Bull. N ° 132), or again on the basis of mandate ad litem (eg Civ. 1ère, May 9, 1996, Bull. n ° 191) It is the same for attorneys in consideration of their mission of representing the parties in court before the court of appeal (Civ. 1ère, February 2, 1994, Bull. N ° 47) .

The diversity of the bases retained is explained by the diversity of the frameworks in which the intervention of each of these professionals can fall, it is of little practical consequence as regards the implementation of the responsibility, except to observe that the limitation period for the action is 10 years in tort and 30 years in contractual matters.

Finally, we will address the issue of the burden of proof .

According to a general principle, whoever alleges the existence of a fault must prove it. However, by several successive decisions, the First Civil Chamber held that it was up to the professional bound by an obligation to provide advice to prove that he had fulfilled it. In particular, for a lawyer (Civ. 1ère, April 29, 1997, Bull. N ° 132), for a judicial officer (Civ. 1ère, December 15, 1998, Bull. N ° 364), for a notary (Civ. 1ère, February 3, 1998, Bull. N ° 44). The principle set out by these decisions is not only applicable to all legal professionals but also to all those who owe an obligation to provide information (same solution for a doctor: Civ.1ère, February 25, 1997, Bull. N °. 75).

We have spoken about these decisions to reverse the burden of proof but, in reality, they only take into account the difficulty of proving a negative fact and the provisions of article 1315 paragraph 2 of the Civil Code. according to which the one who claims to be released must justify the fact which produced the extinction of his obligation. To prove that they have fulfilled their obligation, it is not absolutely essential, although it is preferable, that these professionals prepare written proof, which can be deduced from the circumstances or from the documents produced (Civ. 1ère, February 3, 1998, Bull. N ° 44 , cited above).

In conclusion, we can consider that the jurisprudence of the first Civil Chamber has, for more than twenty years, laid down the main principles governing the liability of legal professions and risked thinking that this work is, from now on, largely completed

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