In the Spanish jurisdiction how to calculate lawyer´s civil liability has always been a controversial issue. The key question is, if the professional makes a mistake, is the client´s right of defense damaged or is there only an infringement of a contractual relationship with the obligation to pay a compensation for damages?
Until recently, Spanish case law considered that the lawyer’s obligations were obligations “to take measures” and not to obtain results. This means that, in the procedural acts, a lawyer was not expected to obtain a positive result but to act diligently according to the procedural acts.
Accordingly, in cases of lawyer´s civil liability, Spanish Courts usually gave a fixed amount that was not linked to the possibilities of success of the action but to the moral damage caused by the loss of opportunity.
However, this trend has changed in the recent years and recent decisions of the Spanish Supreme Court consider that lawyer’s civil liability must be linked to the action that could not be exercised due to the lawyer´s negligence. These decisions are therefore calculating the damage caused as the probability of obtaining a favorable decision, increasing considerably the amount of the indemnity to be paid.
Moreover, the Spanish Supreme Court, by means of its recent Judgment dated 13 May 2014 goes even further and has granted for the first time an indemnity for both moral and material damages. Thus, the Supreme Court considered that the injured parties should be given a 100% of what they should have obtained if the lawyer (360, 607.26 Euros) had acted with the necessary diligence plus a fixed amount of 60,000 for the moral damages caused.