Odpowiedzialność odszkodowawcza adwokata w zależności od formy wykonywanego zawodu

Abstract

The deliberations show that the responsibility of an attorney for damage brought about by unprofessional behaviour will diff er depending on the legal form selected thereby. In the case of a group of attorneys, an attorney may be held civilly liable only if the group – responsible for the damage caused – takes recourse against him. Thus, such liability is in a way secondary and limited to the amount to which the damage has been covered from the group’s assets. In the case of a civil partnership, the attorney is responsible for his own errors jointly and severally with the other partners; this is “primal” liability. The attorney is liable to the full amount of the obligation with all of his assets, also personal. This does not mean, however, that an inept attorney will always be held fully liable for the consequences of his actions, for a partner who is jointly and severally responsible for a debt may demand that the remaining partners return the amount in equal parts, i.e. the part of the performance resulting from its division by the number of partners. Only the appropriate wording in the contract of principles governing the formulation of recourse claims will ensure that, fi nally, the sole person responsible for damage caused will be the inept lawyer who brought it about (Article 376 of the Civil Code). In a registered partnership, the inept attorney will be accountable for damage only when the enforcement of damages from the assets of the company proves ineff ective; even then, however, he shall be jointly and severally liable with the remaining partners. Any recourse by the company against an inept attorney would appear to be inadmissible. However, recourse-based liability between partners with reference to their subsidiary liability means – in principle – that they incur compensatory consequences in equal parts. The separate regulation in the contract of partnership of the said issue and the necessity of ensuring such a recourse-based settlement so that, eff ectively, the entirety of damages paid encumbers the inept attorney, may actually make a registered partnership more akin to a partnership, although in the latter in principle (without the necessity of formulating recourses) it is the inept partner who is solely liable for damage (although in this case, too, we are dealing with subsidiary liability). In the case of a limited partnership, the liability of a general partner is governed by the same principles as in a registered partnership.